Hraichie v The The Queen

[2022] NSWCCA 155

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Hraichie v R [2022] NSWCCA 155

Hearing dates:

30 May 2022

Date of orders:

13 July 2022

Decision date:

13 July 2022

Before:

Beech-Jones CJ at CL at [1]
R A Hulme J at [118]
N Adams J at [149]

Decision:

In relation to proceedings No 2016/277456 and 2016/108074:

(1)   Grant the applicant leave to appeal;

(2)   Allow the appeal in part;

(3) Set aside the aggregate sentence imposed for the offence of wound with intent to murder contrary to s 27 of the Crimes Act 1900 (NSW) and inflict grievous bodily harm with intent to do the same contrary to s 33(1)(b) of the Crimes Act 1900 (NSW) and, in lieu thereof:

(a)   Sentence the appellant to an aggregate term of imprisonment of 16 years and 6 months commencing on 19 March 2022 and expiring on 18 September 2038;

(b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999, set a non-parole of 12 years and 4 months’ imprisonment expiring on 18 July 2034;

(c) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the offender that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence are:

(i) 8 years and 7 months’ imprisonment with a non-parole period of 6 years and 6 months for the offence under s 27 of the Crimes Act 1900 (NSW).

(ii) 13 years and 7 months’ imprisonment with a non-parole period of 10 years and 2 months for the offence under s 33(1)(b) of the Crimes Act 1900 (NSW).

(4) Vary the commencement date of the sentence imposed for the offence under s 101.6(1) of the Criminal Code (Cth) so that it commences on 19 July 2029 with the non-parole period of 15 years expiring on 18 July 2044 and the balance of term of five years expiring on 18 July 2049.

(5)   Appeal otherwise dismissed.

In relation to proceedings No 2018/281246:

(1)   Grant the applicant leave to appeal;

(2)   Allow the appeal.

(3) Set aside the aggregate sentence imposed for the offences under s 61 and s 86(2)(b) of the Crimes Act 1900 (NSW) and, in lieu thereof:

(a)   Sentence the appellant to an aggregate term of imprisonment of 8 years and 3 months commencing on 19 July 2043 and expiring on 18 October 2051.

(b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999, set a non-parole of 3 years and 3 months’ imprisonment expiring on 18 October 2046.

(c) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the offender that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence are:

(i) Imprisonment for 1 year for the offence under s 27 of the Crimes Act 1900 (NSW);

(ii) 8 years’ imprisonment for the offence under s 86(2)(b) of the Crimes Act 1900 (NSW).

(4)   The applicant will be first eligible for release on parole on 19 October 2046.

Catchwords:

CRIMINAL LAW – sentence appeal – offences committed in custody – attacked fellow prisoner – carved ISIS slogan into forehead – wound with intent to kill – inflict grievous bodily harm with intent – committed acts in preparation to commit a terrorism offence – planned attack on corrective services officers – encouraged attacks by others – wrote threatening letter to Commissioner for Corrective Services – long sentences imposed – mostly accumulated – Crimes (Sentencing Procedure) Act s 56 – whether sentencing judge failed to consider entire length of time in custody – rejected – whether aggregate sentence for attack on inmate involved too little consideration of totality principle – whether manifestly excessive – ground upheld – whether accumulation between sentences excessive – rejected – applicant resentenced for attack on inmate – further offence in custody – attempted “exorcism” of inmate – assault – detain for advantage – aggregate sentence imposed – sentencing judge informed of incorrect maximum sentence – error found – whether sentencing judge erred in applying s 56 of Sentencing Act – whether at time applicant committed offence on 15 May 2017 he was “a convicted inmate of a correctional centre” – non-parole period expired but not released as refused bail – held not convicted inmate – error found – applicant resentenced

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999

Criminal Code Act 1995 (Cth)

Cases Cited:

Andreata v R [2015] NSWCCA 239

Atai v R [2020] NSWCCA 302

Australian Building and Construction Commissioner v Pattinson (2022) 96 ALJR 426; [2022] HCA 13

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25

BJS v R [2013] NSWCCA 123

Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1

GS v R [2016] NSWCCA 266

House v The King (1936) 55 CLR 499

JM v R [2014] NSWCCA 297

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

Noonan v R [2021] NSWCCA 35

PD v R [2012] NSWCCA 242

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Alou (No 4) [2018] NSWSC 221

R v Brown [2012] NSWCCA 199

R v Fyffe [2002] NSWSC 751

R v Hraichie (No 3) [2019] NSWSC 973

R v Jeremiah [2016] NSWCCA 241

R v MAK; R v MSK (2006) 167 A Crim R 15; [2006] NSWCCA 381

R v Rossi (Court of Criminal Appeal SA, 20 April 1988, unrep)

R v Windle [2012] NSWCCA 222

Vaughan v R [2020] NSWCCA 3

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category:

Principal judgment

Parties:

Bourhan Hraichie (Applicant)
Regina (Crown)

Representation:

Counsel:
Mr P Boulten SC; Ms C Akthar (Applicant)
Ms S Callan SC; G Westgarth (Crown)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2016/277456; 2016/108074; 2018/281246

 Decision under appeal 

Court or tribunal:

Supreme Court (Johnson J)
District Court (Culver DCJ)

Jurisdiction:

Criminal

Citation:

R v Hraichie (No. 3) [2019] NSWSC 973 (Johnson J)

Date of Decision:

02 August 2019

Before:

Johnson J & Culver DCJ

File Number(s):

2016/277456; 2016/108074; 2018/281246

HEADNOTE

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

The applicant sought leave to appeal against lengthy sentences imposed by Johnson J on 2 August 2019 for four offences and leave to appeal from a sentence imposed by Culver DCJ on 5 March 2020.

The applicant was born in Australia in April 1997. He entered custody in December 2015 and has not been released since. Between 1 April 2016 and 20 May 2016, the applicant intentionally delivered a letter threatening to kill the Commissioner of Corrective Service for New South Wales. On 7 April 2016, the applicant wounded a fellow inmate with intent to murder and on the same day he caused grievous bodily harm to that inmate with intent to cause grievous bodily harm. As part of that attack, he carved the phrase “E4E” into his forehead. Between 1 November 2015 and 19 May 2016, the applicant committed acts in preparation for or planning terrorist acts, namely attacks on Australian Law Enforcement Officers in support of the Islamic State. The total effective sentence imposed by Johnson J was 34 years with a total effective non-parole period of 29 years.

In November 2019, the applicant entered pleas of guilty on the sixth day of a judge alone hearing on an indictment that contained counts of aggravated take and detain a person and assault. The offences involved an attempt by the applicant to perform an “exorcism” on a fellow inmate on 15 May 2017. At that time the applicant had completed his existing non-parole periods and remained in custody refused bail. Culver DCJ imposed an aggregate sentence of 10 years’ imprisonment with a non‑parole period of 5 years. The sentence was fixed to commence on 19 August 2046, being the day after the expiry of the last non-parole period imposed by Johnson J.

Section 56(2) of the Crimes (Sentencing Procedure) Act 1999 provides that, “in the absence of a direction under this section, a sentence of imprisonment imposed on an offender (a) when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or (b) in respect of whom another sentence of imprisonment has been imposed in the same proceedings, is to be served consecutively with the other sentence of imprisonment or, if there is a further sentence of imprisonment yet to commence, with that further sentence.” By s 56(1)(a), the provision is applicable to “a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, committed by the offender while a convicted inmate of a correctional centre”.

Application for Leave to Appeal Against the Sentence(s) Imposed by Johnson J

The issues arising on the appeal in relation to Johnson J’s sentences were:

1. Whether his Honour erred in his application of the totality principle by failing to have regard to the total effective period of imprisonment commencing in December 2015 when determining the sentences imposed?

2. Whether the aggregate sentence imposed for the offences of Wounding with Intent to Murder and Causing Grievous Bodily Harm with intent was excessive in light of the totality of the offending?

3. Whether his Honour erred in his application of the totality principle by imposing a degree of accumulation which was excessive in light of the overall criminality of the offending?

The Court held, granting leave to appeal, allowing the appeal in part, resentencing the applicant on the offences committed under ss 27 and 33(1)(b) of the Crimes Act 1900 and varying the commencement date for the terrorism offence:

As to issue (i), per Beech-Jones CJ at CL (R A Hulme and N Adams JJ agreeing):

1. The sentencing judge addressed the totality principle in detail and his Honour did not suggest that s 56 excluded its operation. The sentencing judge was clearly cognisant of the entire period of the applicant’s detention, including that he had been detained since December 2015.

As to issue (ii), per Beech-Jones CJ at CL (R A Hulme and N Adams JJ agreeing):

1. The aggregate sentence for the two offences constituting the attack on Mr O’Keefe was manifestly excessive, even in light of the applicant’s poor subjective case, as it was disproportionate to the offences the applicant committed. Ground 1(b) was upheld.

   Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1; Noonan v R [2021] NSWCCA 35; House v The King (1936) 55 CLR 499; Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14; JM v R [2014] NSWCCA 297; PD v R [2012] NSWCCA 242; BJS v R [2013] NSWCCA 123; R v Brown [2012] NSWCCA 199; Vaughan v R [2020] NSWCCA 3 applied.

As to issue (iii), per Beech-Jones CJ at CL (R A Hulme and N Adams JJ agreeing):

1. The totality principle, including any necessity to avoid the imposition of a “crushing sentence”, is not a basis to avoid the imposition of a sentence that is “just and appropriate”. Ground 1(c) was rejected.

   Postiglione v The Queen (1997) 189 CLR 295; R v Rossi, Court of Criminal Appeal of South Australia, 20 April 1988, unrep cited by McHugh J in Postiglione; Australian Building and Construction Commissioner v Pattinson (2022) 96 ALJR 426; [2022] HCA 13; Atai v R [2020] NSWCCA 302; R v Mak; R v MSK (2006) 167 A Crim R 15; [2006] NSWCCA 381; GS v R [2016] NSWCCA 266 applied.

Application for Leave to Appeal Against the Sentence(s) Imposed by Culver DCJ

The issues arising on the appeal in relation to Culver DCJ’s sentences were:

1. Whether the sentence proceedings miscarried as a result of her Honour being misled as to the maximum penalty for the common assault offence?

2. Whether the sentencing judge erred by assuming that s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was engaged in respect of the offences committed in May 2017?

3. Whether her Honour erred in her application of the totality principle by failing to have regard to the total effective period of imprisonment when determining the sentences imposed?

The Court held, granting leave to appeal, allowing the appeal, and resentencing the applicant:

As to issue (i), per Beech-Jones CJ at CL (R A Hulme and N Adams JJ agreeing):

1. The sentence imposed was relevantly affected by error as her Honour recorded that the maximum penalty for the offence under s 61 was 5 years’ imprisonment, when the maximum penalty is 2 years’ imprisonment. By acting on a wrong assumption as to the maximum sentence her Honour acted upon a “wrong principle”. Ground 1 was upheld.

   Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; House v The King (1936) 55 CLR 499; Andreata v R [2015] NSWCCA 239 applied.

As to issue (ii), per R A Hulme J (Beech-Jones CJ at CL and N Adams JJ agreeing):

1. The applicant was not a “convicted inmate of a correctional centre” within the meaning of s 56(1)(a) Crimes (Sentencing Procedure) Act and s 56 was not directly applicable to his sentencing. Ground 2 was upheld.

As to issue (iii), per Beech-Jones CJ at CL (R A Hulme and N Adams JJ agreeing):

1. Her Honour discussed the totality principle at length and appropriately fixed the aggregate sentence, so it commenced upon the expiry of the last non-parole period set by Johnson J. Ground 3 was rejected.

Judgment

1. BEECH-JONES CJ at CL: This judgment concerns two applications for leave to appeal against sentence. One of the applications seeks leave to appeal against lengthy sentences imposed by Johnson J on 2 August 2019 for four offences including a terrorism offence and wounding with intent to murder (R v Hraichie (No 3) [2019] NSWSC 973; “Hraichie (No 3)”). The other application seeks leave to appeal from a sentence imposed by Culver DCJ on 5 March 2020 for aggravated take and detain a person and assault. Save for a small component of the terrorism offence, all of these offences were committed in custody. The sentence imposed by Culver DCJ is due to commence on the expiry of the last non-parole period imposed by Johnson J.

2. As will become clear, the applicant’s crimes were grave. Each of the sentencing judgments the subject of the applications is comprehensive. That said, the applicant’s complaints about the sentences imposed are very focussed. They mostly concern the interactions between the commencement and end dates of the sentences imposed as part of what were undoubtedly difficult sentencing exercises for each judge.

3. For the reasons that follow I consider that one of the three sentences imposed by Johnson J was affected by error. The Crown conceded that the sentence imposed by Culver DCJ was affected by error. In respect of the offences the subject of those sentences, I propose that the applicant be resentenced to lesser periods in custody than that imposed by Johnson J and Culver DCJ, although I consider that he must nevertheless spend at least 28 years in custody for these offences.

4. To explain this, it is necessary to first outline the circumstances that lead to the applicant being in custody when the various offences were committed.

The Applicant’s Custody between 8 December 2015 and 2 August 2019

5. As noted, Johnson J sentenced the applicant on 2 August 2019. As at that date, the applicant had been in continuous custody since 8 December 2015. On the latter date, he commenced serving the balance of a parole period for a previous offence. On 20 January 2016 the applicant was sentenced in the Local Court at Bankstown to various terms of imprisonment. For an offence of larceny, he was sentenced to a fixed term of imprisonment of 9 months backdated to commence on 8 December 2015 and expiring on 7 September 2016. For an offence of taking and driving a conveyance without the consent of the owner he was sentenced to 12 months imprisonment. This offence was also backdated to commence on 8 December 2015 and expired on 7 December 2016. The Court fixed a non-parole period of 9 months which expired on 7 September 2016.

6. In addition, for five offences of breaking and entering the Local Court imposed a sentence of imprisonment for 19 months and 6 days comprising a non-parole period of 14 months and 11 days and a parole period of 4 months and 25 days. This sentence was also fixed to commence on 8 December 2015 and expire on 13 July 2017. The non-parole period expired on 18 February 2017. This sentence is of particular relevance to ground 2 of the application for leave to appeal from the sentence imposed by Culver DCJ. The sentence imposed by her Honour was for (serious) offences committed in custody on 17 May 2017 which was after the non-parole period for the break and enter offences had expired. The applicant remained in custody after 17 May 2017 having been refused bail on the multitude of other offences he had been charged with in the meantime.

7. On 20 June 2017 the applicant set fire to his cell. For the offence of destroying property by fire he was sentenced in the District Court on 17 April 2018 to 27 months imprisonment commencing 19 February 2017. The Court fixed a non-parole period of 18 months which expired on 18 August 2018. As noted below, Johnson J fixed the first of his sentences to commence the following day.

The Offences and Sentences Imposed by Johnson J

8. The applicant pleaded guilty to the four offences for which sentence was imposed by Johnson J. Those offences, their maximum penalty, any applicable standard non-parole period, and the sentences imposed, were as follows.

9. Between 1 April 2016 and 20 May 2016, the applicant intentionally delivered a letter threatening to kill a person, specifically the Commissioner of Corrective Services for New South Wales (the “Commissioner”), contrary to s 31(1) of the Crimes Act 1900 (NSW) (the “Threat to Kill” offence). The maximum penalty for this offence is imprisonment for 10 years. This offence does not carry a standard non‑parole period. For this offence his Honour sentenced the applicant to imprisonment for 6 years and 3 months which included a non‑parole period of 4 years and 7 months. The sentence was backdated so that it commenced on 19 August 2018. The non-parole period is due to expire on 18 March 2023. The commencement date of this sentence coincided with the expiry of the last non-parole period for the offence of destroying property by fire noted above.

10. On 7 April 2016, the applicant wounded Michael O’Keefe with intent to murder contrary to s 27 of the Crimes Act 1900 (NSW) and on the same date he caused grievous bodily harm to Mr O’Keefe with intent to cause grievous bodily harm contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty for both offences is imprisonment for 25 years. The offences carry standard non‑parole periods of 10 years and 7 years respectively.

11. For these two offences, his Honour imposed an aggregate sentence of imprisonment for 20 years with a non-parole period of 15 years. The sentence was fixed to commence on 19 August 2022 and to expire on 18 August 2042 with the non-parole period expiring on 18 August 2037. The commencement date of this sentence is 7 months prior to the expiry of the non-parole period for the Threat to Kill offence. Pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (the “Sentencing Act”), his Honour specified an indicative sentence of imprisonment for 10 years with a non‑parole period of 7 years and 6 months for the offence under s 27, and 14 years with a non-parole period of 10 years and 6 months for the offence under s 33(1)(b) (Hraichie (No 3) at [362]).

12. Between 1 November 2015 and 19 May 2016, the applicant committed acts in preparation for or planning terrorist acts, namely attacks on Australian Law Enforcement Officers in support of the Islamic State, contrary to s 101.6(1) of the Criminal Code (Cth) (the “Acts in Preparation” offence and the “Code” respectively). The maximum penalty for this offence is life imprisonment. For this offence his Honour sentenced the applicant to imprisonment for 20 years with a non-parole period of 15 years. The sentence was fixed to commence on 19 August 2032 and expire on 18 August 2052 with the non-parole period expiring 18 August 2047. The commencement date for the sentence was five years prior to the expiry of the non-parole period for the aggregate sentence relating to the offences committed against Mr O’Keefe.

8. The parole period set by the sentence imposed for the Threat to Kill offence comprised 26.7% of the total sentence. For the other sentences the parole period comprised 25% of the total sentence for that offence. The total effective sentence imposed by Johnson J was 34 years with a total effective non-parole period of 29 years and a total effective parole period of 5 years, being 14.8% of the total effective sentence. When allowance is made for the sentences that commenced on 8 December 2018 that ratio is 13.7%.

Facts of the Offending before Johnson J

14. The details of the offences are comprehensively set out in Hraichie (No 3) at [13] to [151].

15. What follows is by way of summary.

16. The applicant was born in Australia in April 1997. Between 2011 and 2015, he served periods in juvenile detention and as an adult on remand. He served sentences for larceny, break and enter, robbery and other offences. He was released on parole but was arrested on 8 December 2015 for breaching his parole conditions and committing larceny, break and enter and other offences. After being sentenced for those offences in March 2016, he was transferred to the Mid North Coast Correctional Centre (the “MNCCC”).

17. On 7 April 2016, while the applicant was incarcerated at MNCCC, the applicant attacked his cell mate, Mr O’Keefe, giving rise to the charges noted above. Two days later he was transferred to the High-Risk Management Correctional Centre (“HRMCC”) at Goulburn. While he was incarcerated at the MNCCC and the HRMCC, various documents in his possession were seized along with a letter he had placed in a prison post box (at [20]). Those documents included statements encouraging others to attack law enforcement officers. The letter contained a threat to kill the Commissioner. In September 2016, the applicant was interviewed by the Joint Counter Terrorism Taskforce (the “JCTT”) and made a number of admissions. He was charged with the Acts in Preparation and the Threat to Kill offences.

The Acts in Preparation Offence

18. His Honour identified various events between 2012 and 2015 which suggest that the applicant either became radicalised or at least first showed signs of radicalisation while in juvenile detention. During the period 2013 to 2014, the applicant met and began associating with three other persons including, Raban Alou (“Alou”), Khoder Masri (“Masri”) and Imran Baluch (“Baluch”). In August 2015, while the applicant was detained at John Moroney Correctional Centre, he and Alou discussed the fulfilment of a “Hadith” that an “army of the black banner will rise and will conquer the world” (at [32]). In October 2015, Alou participated in the events that led to the killing of Mr Curtis Cheng in a terrorist attack in Parramatta. He subsequently received a lengthy sentence (R v Alou (No 4) [2018] NSWSC 221). It was not suggested that the applicant had any involvement in that offence although he praised the killing of Mr Cheng on a number of occasions (Hraichie (No 3) at [36]).

19. In the sentencing judgment, Johnson J identified four “phases” of the Acts in Preparation Offence. The first phase was the period between the applicant’s release on parole on 28 October 2015 and his rearrest on 8 December 2015. In his interview with the JCTT in September 2016, the applicant admitted to discussing terrorist attacks including shooting police officers, conducting an attack to take place in April or May 2016 around ANZAC day which he planned to film and having access to guns (Hraichie (No 3) at [40]).

20. The second phase of the Acts in Preparation Offence identified by his Honour, took place between the time of the applicant’s transfer to MNCCC on 16 March 2016 and 1 April 2016. In that period, Corrective Services officers seized various documents the applicant had written that related to violent terrorist attacks on public officials. One of those documents was "The Book of Jihad" which was intended to be provided to an associate in the community to support an attack on police officers (Hraichie (No 3) at [44]). In the JCTT interview, the applicant stated that he wrote the book to motivate others to carry through with an attack on ANZAC day “by referring them to religious commands such as the duty to fight, when you can decapitate someone and arguments against reasons that might hold them back such as love of wealth or family” (Hraichie (No 3) at [53]).

21. Another document that the applicant wrote was entitled "Inshallah after First Operation". This was intended to be used to claim responsibility for an attack on police officers (Hraichie (No 3) at [44] and [55]). In the JCTT interview the applicant stated that he intended to record himself reading from that document after his associates had carried out an attack, but the attack was called off because the associates decided to travel to Syria and Iraq to fight (at [56] to [57]).

22. The third phase of the Acts in Preparation offence took place between 1 and 7 April 2016 and immediately preceded the attack on Mr O’Keefe described below. During this period the applicant undertook preparations for an attack on Corrective Services officers on ANZAC day. He obtained a makeshift knife and made ropes from cut bed sheets. However, instead of pursuing that attack he attacked Mr O’Keefe on 7 April 2016. In his interview with the JCTT in September 2016 the applicant stated, amongst other things, that he had planned to put a knife to the throat of a Corrective Services officer “or bash him, force him into his cell, tie him up with the ropes and then kill him by beheading with the knife” and then he “expected to be killed in the course of conducting the attack or in its aftermath” (Hraichie (No 3) at [66]).

23. The fourth phase of the Acts in Preparation offence was the period between 9 April 2016 and 19 May 2016 when the applicant was housed at the HRMCC at Goulburn. During that period, he wrote a coded letter addressed to “Kayman Masters” which “used code words and extremist religious arguments to urge the recipient to carry out a terrorist attack on police officers at Bankstown Police Station” (Hraichie (No 3) at [69]). On 19 May 2016, the applicant placed the letter in the prison maildrop box but it was intercepted. In his interview with the JCTT in September 2016, he initially denied writing the letter but later admitted doing so. There was a suspicion that the letter was addressed to Masri and Baluch although the sentencing judge made no adverse findings against either of them (Hraichie (No 3) at [83]).

24. As noted, the applicant was charged following the interview with the JCTT in September 2016. During that interview, he praised the killer of Curtis Cheng and said he could not be deradicalised because he regarded it as his religion, stating “[t]here's nothing to deradicalise ... There's no such thing as extremism. How is it extreme? You know what I mean? It's in the Quran. It's the religion, end of the day” (Hraichie (No 3) at [95]). He also said that, if he were to be released on 18 February 2017, then he had planned to obtain a truck and drive it through the crowd during the Mardi Gras celebration in Sydney (Hraichie (No 3) at [58]).

25. The sentencing judge found that the Acts in Preparation offence was a “very serious example of an offence” under s 101 of the Code (Hraichie (No 3) at [224]).

The Attack on Mr O’Keefe

26. As at April 2016, Mr O’Keefe was 40 years of age. He was serving a relatively short sentence of imprisonment at MNCCC which was due to expire in September 2016. Mr O’Keefe was designated to share a cell with the applicant. On the afternoon of 7 April 2016, they met for the first time. During a short conversation, Mr O’Keefe told the applicant he had served in the Australian Army between 1992 and 2000. He had not been on overseas deployment (Hraichie (No 3) at [101]). Mr O’Keefe left the cell and spoke to other inmates before returning. They were locked in the cell between 3.10pm and 3.30pm.

27. His Honour described the events that followed (Hraichie (No 3) at [106] to [113]):

“106.   Mr O’Keefe stated he was lying on his bed with his head furthest from the door. Without any prior warning, the Offender began punching him to the face and jaw. Mr O’Keefe lost consciousness and when he came to, the Offender was speaking in a language which he did not recognise. Mr O’Keefe moved in and out of consciousness.

107   Mr O’Keefe recalled the Offender holding him against the cell door whilst yelling in another language and hearing other males yell back in the same language. As this was occurring, Mr O’Keefe became aware that his face was bleeding.

108   Mr O’Keefe said the Offender pushed him into the shower area of the cell and he recalled being sprayed in the face with something from a bottle. The Offender then punched Mr O’Keefe to the face and neck a couple of times.

109   Mr O’Keefe's next recollection was lying on the bed on his back. The Offender had placed something around his throat and had covered his face with a blanket which was pulled tight. Mr O’Keefe then felt hot water being poured onto the blanket and soaking through into his mouth. Mr O’Keefe felt like he was drowning. The Offender said "Die soldier, die soldier" before removing the blanket. As the Offender told police later, he was “waterboarding” Mr O’Keefe at this point of the attack. The Offender then spat on Mr O’Keefe's face.

110   Mr O’Keefe recalled struggling to breathe and was spitting up water. He recalls hearing the Offender using the intercom and saying to the guards something like, "Just seeing if it works, nothing wrong chief''.

111   The Offender produced a blade and started cutting Mr O’Keefe's face, neck and back. Mr O’Keefe lost consciousness. His next memory was seeing a few people in the cell.

112   Mr O’Keefe's next recollection after that was waking up in Port Macquarie Base Hospital. He was under guard and his mother was also present.”

28. It seems that Corrective Service officers responded around 4.30pm. They found Mr O’Keefe lying on his bed, unconscious and covered in blood. He had cuts to his neck, and his hair was matted with blood. He had a towel around his head which was soaked in blood. He was moaning and groaning in an incoherent way. His Honour noted that the hospital notes record that Mr O’Keefe sustained the following injuries (Hraichie (No 3) at [124]):

“(a)   [the] letters (“E4E”) carved into his forehead and cuts to the back of the neck with a sharp object;

(b)   facial abrasions/contusions;

(c)   laceration to his nasal bridge and laceration to his face (five centimetres);

(d)   bruising and lacerations to his neck and throat;

(e)   extensive whip marks, small lacerations and extensive bruising to his back;

(f)   multiple rib fractures on both sides; and

(g)   [a] fractured sternum.”

29. Mr O’Keefe did not have plastic surgery to remove the scarring but instead accepted advice to use makeup to disguise the scarring. He suffers ongoing back pain and was diagnosed with post-traumatic stress disorder. An affidavit from Mr O’Keefe describing these ongoing effects was read at the sentencing hearing. His Honour found that “the attack upon Mr O’Keefe was ferocious and terrifying with very significant physical and psychological injuries being caused to him which will likely have permanent consequences” (Hraichie (No 3) at [150]).

30. The applicant was interviewed about this offence on 7 April 2016 and was again questioned about it during the JCTT interview in September 2016. During the interview on 7 April 2016 he stated, amongst other things, that he bashed Mr O’Keefe because he repeatedly talked about killing a Muslim child in Timor and uttered blasphemies about the Prophet. He said he did not feel bad for Mr O’Keefe but did not want to him to die either (Hraichie (No 3) at [133(e)]). However, his Honour noted that during the interview on 16 September 2016, the applicant “boast[ed] about the attack, laughing at one point as he denied being remorseful [and] noting his ‘only regret’ was that he ‘didn’t use a bigger knife’” (at [135]). He said that he wanted to kill Mr O’Keefe. When asked about his remorse he stated, inter alia, “[r]emorse. Do I have remorse for it? Why should I have remorse for it?” and that he was interviewed soon after the offence "I cooled down and I had time to refresh my story. Then I played the little [18-year-old innocent], oh, [be]cause I thought I'm goin' to beat it …The only remorse is I didn't use a bigger knife” (Hraichie(No 3) at [135(e)]).

31. His Honour found that the applicant planned to carry out an attack on a Corrective Services officer but happened to attack Mr O’Keefe (Hraichie (No 3) at [151]). His Honour also did not accept that Mr O’Keefe told the applicant anything other than that he was an ex-serviceman and that nothing that Mr O’Keefe said or did provoked the applicant (Hraichie (No 3) at [241]).

32. The acts the subject of the offence of wounding with intent to murder contrary to s 27 of the Crimes Act, were an attempt to stab Mr O’Keefe using a gaol knife and then using a razor to slit Mr O’Keefe’s throat. Otherwise, his Honour noted that “actual steps taken by [the applicant] in wounding Mr O’Keefe with intent to murder were limited in nature, although no doubt entirely terrifying for Mr O’Keefe at the time”. His Honour found that this offence fell just below the mid-range of objective seriousness (Hraichie (No 3) at [231] to [232]).

33. The injuries that constituted the “grievous bodily harm” element of the offence under s 33(1)(b) were identified by his Honour as follows (Hraichie (No 3) at [235]):

(a)   carving “E4E” on Mr O’Keefe’s forehead and carving similar symbols on the back of his neck;

(b)   fracture of the manubrium extending into the sternomanubrial joint;

(c)   displaced and depressed buckle fracture of the lower sternum;

(d)   fractures of the parasternal regions of the right second, third and fourth ribs;

(e)   fracture of the posterior aspect of the left 12th rib; and

(f)   a large laceration to the left side of the face.

34. His Honour found that the offence under s 33(1)(b) was “well above the mid-range of objective seriousness” (Hraichie (No 3) at [236]). His Honour expressly disclaimed taking into account the applicant’s motivation to commit a terrorist attack and instead only took into account the applicant’s motive of hatred for Mr O’Keefe.

The Threat to Kill Offence

35. On 20 May 2016, the applicant approached a Corrective Services officer within the HRMCC and handed him an envelope containing a letter he had written addressed to the Commissioner. Amongst other things, his letter stated that “I will turn your jails into slaughterhouses” and “I want you to keep in mind the fact that I will one day be released from your control whether you like it or not. It could be tomorrow or in 20 [years’] time the fact is it will happen and when that day comes, if you do not stop your staff from oppressing me then I will personally execute you in public".

36. In his JCTT interview in September 2016, the applicant stated that he wrote the letter as he was unhappy with his conditions in the HRMCC, he intended to carry out the threats in the letter, he would wait until his release to carry out the attack and he would do it sooner if he had the chance (Hraichie (No 3) at [84] to [89]).

37. Given the intended target of the Threat to Kill offence was the Commissioner and that the object of the threat was to deter the Commissioner from exercising important public duties and functions, the sentencing judge found that the Threat to Kill offence was an “offence of considerable objective gravity” (Hraichie (No 3) at [230]).

Other Findings of Johnson J

38. His Honour’s findings in relation to the facts of the offences and their objective seriousness have already been noted. The other relevant findings made by his Honour can be briefly noted. His Honour did not accept that the applicant was remorseful. To the contrary, his Honour found that the applicant’s “beliefs continue his support for terrorism” (at [297]). His Honour found that his risk of reoffending was high and his “prospects of rehabilitation are bleak” (at [306]). His Honour also found that the applicant’s youth did not provide “any significant assistance to him on sentence given the gravity, variety and circumstances of the offences” (at [309]). So far as the Acts in Preparation offence is concerned, his Honour addressed the various factors set out in s 16A of the Crimes Act 1914 (Cth) (at [321] to [332]).

39. In relation to the applicant’s pleas of guilty and the assistance he provided by his statements in the JCTT interview, his Honour afforded the applicant a 25% discount for the Acts in Preparation offence, a 20% discount for the Threat to Kill offence, a 25% discount for the offence under s 27 of wound with intent to murder and a 15% discount for the offence under s 33(1)(b) of causing grievous bodily harm with intent (Hraichie (No 3) at [266]).

Johnson J’s Approach to Cumulation and Concurrency

40. In light of the grounds of appeal in both matters, it is necessary to describe the approach taken by Johnson J to cumulation and concurrency in some detail.

41. Section 55(1) of the Sentencing Act provides:

“(1)   In the absence of a direction under this section, a sentence of imprisonment imposed on an offender—

(a)   who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or

(b)   in respect of whom another sentence of imprisonment has been imposed in the same proceedings,

is to be served concurrently with the other sentence of imprisonment and any further sentence of imprisonment that is yet to commence.”

42. Reversing that position in particular circumstances, s 56 relevantly provides:

“(1)   This section applies to--

(a)   a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, committed by the offender while a convicted inmate of a correctional centre, or

(b)   a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, against a juvenile justice officer committed by the offender while a person subject to control.

(2)   In the absence of a direction under this section, a sentence of imprisonment imposed on an offender--

(a)   who, when being sentenced, is subject to another sentence of imprisonment that is yet to expire, or

(b)   in respect of whom another sentence of imprisonment has been imposed in the same proceedings,

is to be served consecutively with the other sentence of imprisonment or, if there is a further sentence of imprisonment yet to commence, with that further sentence.

(3)   The court imposing the sentence of imprisonment may instead direct that the sentence is to be served concurrently (or partly concurrently and partly consecutively) with the other sentence of imprisonment and any further sentence of imprisonment that is yet to commence.

(3A)   Such a direction may not be given in relation to--

(a)   an offence involving an assault, or other offence against the person, against a correctional officer committed by the offender while a convicted inmate of a correctional centre, or

(b)   an offence involving an assault, or other offence against the person, against a juvenile justice officer committed by the offender while a person subject to control,

unless the court is of the opinion that there are special circumstances justifying such a direction.

(4)   A direction under this section has effect according to its terms.

(5)   In this section, a reference to a sentence of imprisonment is taken to be a reference to--

(a)   the non-parole period of the sentence, in the case of a sentence for which a non-parole period has been set, or

(b)   the term of the sentence, in the case of a sentence for which a non-parole period has not been set.

(6)   …

43. By virtue of both ss 55(4) and 56(5), a “sentence of imprisonment” is taken to be a reference to the non-parole period of the sentence where a non-parole period has been set, or the term of the sentence where no non-parole period has been set.

43. In accordance with ss 55(5)(a) and 56(1)(a), s 56 applies, but s 55 does not, to “a sentence of imprisonment imposed on an offender in relation to an offence involving an assault, or any other offence against the person, committed by the offender while a convicted inmate of a correctional centre”.

44. It was accepted in the applicant’s submissions in this Court that s 56 applied to the sentences to be imposed for the three offences under the Crimes Act 1900 (NSW) dealt with by Johnson J because they were each “offences against the person” and they were each committed by the applicant while he was a “convicted inmate of a correctional centre”. The applicant satisfied the latter requirement by virtue of serving the non-parole periods of the sentences imposed in the Local Court at Bankstown on 20 January 2016 at the time he committed the offences under ss 27 and 33(1)(b) on 7 April 2016 and the Threat to Kill offence no later than 20 May 2016.

45. In relation to s 56(2)(a), the applicant was not “an offender … who, when being sentenced [was] subject to another sentence of imprisonment that [was] yet to expire”. The applicant had been subject to various non-parole periods from 8 December 2015 but they had all expired well before the applicant’s sentencing by Johnson J in August 2019. However, s 56(2)(b) did apply at the time of sentencing by Johnson J in that the applicant was an offender “in respect of whom another sentence of imprisonment [was being] imposed in the same proceedings”. The submissions for the applicant in this Court accept this was the case.

46. The default position for the applicant under s 56 that the new sentence be served consecutively with other sentences does not apply if the court directs, under s 56(3), that the sentence be served concurrently, or partly concurrently and partly consecutively. There is a relevant constraint on that discretion provided in s 56(3A). This requirement for “special circumstances justifying such a direction” applied to the Threat to Kill offence but not to the offences under ss 27 and 33(1)(b). Each of the three are “offences against the person” (all within Part 3 of the Crimes Act 1900 (NSW)) but those under ss 27 and 33(1)(b) were not committed against a correctional officer.

47. In his sentencing judgment, Johnson J summarised these provisions. His Honour described their rationale as being “clear enough”, namely “the importance of maintaining discipline within the prison system and protecting other offenders from criminal assaults by fellow inmates” (citing R v Windle [2012] NSWCCA 222 at [56](b)) and generally to “deter the commission of offences in prison” so that, in addition to inmates, “[o]fficers who administer prison communities are entitled to expect that inmates will be deterred from offending” (citing R v Jeremiah [2016] NSWCCA 241 at [9] to [10] and R v Fyffe [2002] NSWSC 751 at [33]).

48. Johnson J discussed the issue of “special circumstances” and the application of s 56(3A) to the s 31 offence:

“318 In considering the ‘special circumstances’ issue under s.56(3A), it is appropriate to take into account the nature of the s.31 offence which did not involve a direct physical attack upon a Corrective Services officer. That said, the Offender threatened to kill the most senior officer in Corrective Services NSW and he committed this offence whilst being an inmate in a correctional centre. The Offender made the threat to kill in an effort to deter Mr Severin from performing his duty as the Commissioner of Corrective Services NSW.

319 I approach this issue upon the basis that there is no closed category of available ‘special circumstances’ under this provision. It remains necessary to keep in mind the statutory purpose for this provision, and the need to guard against any inappropriate double counting when it comes to the question of ‘special circumstances’ for the purpose of varying the ratio of the non-parole period to the head sentence for the s.31 offence under s.44 Crimes (Sentencing Procedure) Act 1999 (NSW).

320   What is clear is that the terms of s.56 alter the usual approach to issues of concurrency and accumulation under s.55 Crimes (Sentencing Procedure) Act 1999 (NSW) and the general law. It is necessary to apply the terms of s.56 on these issues in the circumstances of this case.”

50. Later in his judgment his Honour addressed accumulation, concurrency, and the totality principle. In relation to the application of s 56 in this context, his Honour found:

“344 I am satisfied that a significant level of accumulation is required as between the aggregate sentence to be imposed for these offences [ie the offences against Mr O’Keefe] and the separate sentence to be imposed for the offence under s.31 Crimes Act 1900 (NSW) (NSW) prosecuted by the CDPP. This approach gives effect to s.56(2) and also the fact that there are separate victims of these offences against the person.

345 I am satisfied that special circumstances exist for the purpose of s.56(3A) justifying a direction that the sentence for the s.31 offence not be entirely consecutive in this case. In this regard, I have taken into account the nature of the offence, which does not involve an actual attack upon a Corrective Services officer, together with the totality principle to which I will turn shortly.

346   An element of partial accumulation is appropriate with respect to the Commonwealth offence in relation to the sentences to be imposed for the State offences.”

51. The sentence for the Threat to Kill offence was backdated so that it commenced immediately upon the expiry of the non-parole period for the offence of destroying property by fire; namely, 19 August 2018. As noted above, that offence did not fall within s 56(2)(a) as it was not a sentence of imprisonment being served at the time the applicant was sentenced. However, s 56(2)(b) was engaged in respect of the three offences Johnson J dealt with. I take his Honour’s reference in [345] to the sentence for the Threat to Kill offence not being “entirely consecutive” to be the counterpart of [344], so that his Honour was making all necessary findings, and some that were perhaps unnecessary, to ensure that the sentence for that offence did not have to be served wholly consecutively with the sentences imposed for the offences against Mr O’Keefe and vice versa.

52. In these passages his Honour adverted to the totality principle. His Honour addressed that as follows:

“348   The totality principle is to be applied by a sentencing court, together with other statutory and common law factors and principles, in the process of instinctive synthesis leading to a value judgment comprising the determination of sentence. The totality principle requires the Court, where there is a series of offences, to review the total sentence and consider whether the aggregate sentence is a just and appropriate measure of the total criminality involved. It has been said that the sentencing Judge should “take a last look at the total just to see whether it looks wrong”, with this involving consideration of the totality of the criminal behaviour and a check as to whether the proposed sentence is appropriate for all of the offences: ZA v R (2017) 267 A Crim 105 at 122-123; [2017] NSWCCA 132 at [69]-[70].

349   The totality principle serves to ensure that an offender is not subjected to a crushing sentence: ZA v R at 123 [71]. An assessment whether a particular sentence is a crushing sentence must have regard to the offences committed by the Offender, the maximum penalty and standard non-parole periods relevant to those offences and all objective and subjective factors which should be appropriately brought into account on sentence together with principles concerning accumulation, concurrency, and totality: ZA v R at 125 [77].

350   It has been observed that an extremely long total sentence may be crushing upon an offender, in the sense that it may induce a feeling of hopelessness and destroy any expectation of a useful life after release, and that this effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform: R v MAK (2006) 167 A Crim R 159 at 164; [2006] NSWCCA 381 at [17] [“MAK”]. A sentencing court must, however, take care when applying the totality principle, keeping in mind that public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of discount for multiple offending: R v MAK at 164-165 [18]. The principle of totality is directed to the broader question whether the total sentence is proportionate to the Offender’s overall criminality and is not dependent upon the subjective views of the Offender: ZA v R at 126 [81]-[82].

351   I have kept in mind these principles in applying the totality principle to the Offender in this case. On any view, a very substantial sentence of imprisonment is required given the number and gravity of his offences. At the same time, I have considered the total effective sentence to be imposed in the manner outlined in authorities which have discussed the totality principle.

Application for Leave to Appeal Against the Sentence(s) Imposed by Johnson J

53. The applicant’s grounds of appeal are as follows:

1.   His Honour the sentencing judge erred in his application of the totality principle by:

A.   failing to have regard to the total effective period of imprisonment when determining the sentences imposed;

B.   imposing an aggregate sentence for the offences of Wounding with Intent to Murder and Causing Grievous Bodily Harm with Intent which was excessive in light of the totality of this offending; and

C.   imposing a degree of accumulation which was excessive in light of the overall criminality of the offending.

54. The applicant’s submissions in this Court accept that “his Honour gave his careful consideration to the application of s 56 to the commencement dates for the sentences to which it applied”. However, it was submitted that “his Honour’s discretion nonetheless miscarried by failing to apply the totality principle to ensure that the overall term of imprisonment did not exceed the criminality of the offending”. The submissions then address the three matters noted in the above grounds.

Ground 1(a): Total Effective Period of Custody

55. The first matter concerns the total effective period of imprisonment. The applicant’s submissions noted that the applicant (relevantly) entered custody when he was 18 years old in December 2015 and under the sentences imposed by Johnson J will not be eligible for release until 2047 when he will be 50 years old. They noted that his Honour did not make any (express) reference to the overall minimum period of imprisonment of over 32 years that the applicant will serve from December 2015. However, at the conclusion of his Honour’s judgment his Honour described the total effective sentence that was imposed as “entail[ing] a period of imprisonment of not less than 29 years from 19 August 2018, being a period expiring on 18 August 2047” (at [377]). Further, his Honour discussed the history of the applicant’s time in custody since December 2015 in detail. His Honour was clearly cognisant that the applicant would serve a continuous period in custody of (at least) 32 years.

56. The applicant’s submissions accepted that his Honour discussed the totality principle and its application in some detail but contended that “in the applicant’s submission, his Honour’s emphasis on the significance (as he saw it) of section 56 of the [Sentencing Act] had the effect of distorting the proper role of totality in determining the sentences to be imposed.”

57. I do not accept this contention. As the applicant acknowledged, his Honour addressed the totality principle in detail and his Honour did not suggest that s 56 excluded its operation. In this case, s 56 had no role in his Honour’s approach to the level of concurrency and accumulation between the sentences committed against Mr O’Keefe and the Acts in Preparation offence. There was an overlap of some five years between the commencement of the non-parole period for the latter and the expiry of the non-parole period for the former. As between the sentence for the Threat to Kill offence and the offences against Mr O’Keefe, the period of overlap was only seven months. However, that relatively short period of overlap was not the product of a “distortion of the proper role of totality”. Instead, his Honour drew on the rationale for s 56 as discussed in the various authorities noted above in his application of the totality principle when considering the extent to which the sentences would be consecutive or concurrent. As a matter of principle, I see no error in applying the totality principle bearing in mind a legislative policy which is directed to protecting inmates and corrections officers from attacks (or other threats of attacks) by other inmates.

58. I would reject ground 1(a).

Ground 1(b): Aggregate Sentence for offences against Mr O’Keefe

59. The applicant’s submissions noted that, before Johnson J, the prosecution had conceded that the sentences for the two offences could be “concurrently served”. However, they also noted that his Honour reasoned that “these offences should be approached upon the basis that there were two very serious crimes of violence committed against Mr O’Keefe” (at [340]) such that it was not “appropriate to proceed upon the basis that the sentences for these offences ought be entirely concurrent” (at [342]) and it was “appropriate … to deal with these offences … by means of an aggregate sentence” (at [343]).

60. The applicant contended that a consideration of both the length of the indicative sentences and a comparison with the aggregate sentence imposed for the offences committed against Mr O’Keefe reveals error in the form of the “misapplication of the principle of totality”. The submissions noted that the offences occurred virtually simultaneously against a single victim, and his Honour found that the physical acts taken in furtherance of the wounding offence were limited and the offence under s 27 could have only been prosecuted because of the applicant’s admission of an intention to kill. It was submitted that the sentence for the grievous bodily harm offence “could have comfortably reflected the criminality of both offences”.

61. I do not accept that a proper sentence imposed for the grievous bodily harm offence could have also reflected the criminality involved in the wounding offence. Any offence involving an intention to kill that accompanies an act of violence is a serious matter and the criminality of such an offence is not reflected by an offence that only carries an intention to inflict grievous bodily harm (Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27] per Howie J). So far as the overall complaint is concerned, it is clear that the principle of totality is applicable to the fixing of an aggregate sentence and that this Court can compare the indicative sentences to the aggregate sentence for the purposes of determining whether and, to an extent, how the totality principle was applied (Noonan v R [2021] NSWCCA 35 at [33]). In this case, his Honour identified the totality principle and imposed an aggregate sentence that provided for four years of notional concurrence between the two indicative sentences. Thus, as submitted by the Crown, there is no doubt that the totality principle was considered and applied.

62. Ultimately, a complaint that the degree of notional concurrence on account of totality (or otherwise) was insufficient is in effect a complaint about the weight to be attributed to a sentencing factor. As such, it can only be considered as an aspect of a contention that overall, the aggregate sentence imposed was unreasonable (House v The King (1936) 55 CLR 499, 505; “House”); that is, manifestly excessive.

63. Was the aggregate sentence for the two offences constituting the attack on Mr O’Keefe manifestly excessive? Prior to the allowance of a discount on account of his plea of guilty, the indicative sentence for the offence under s 27 was 13 years and 4 months which would ordinarily yield a non-parole period of 10 years. This exceeds the standard non-parole period of 10 years even though his Honour assessed the objective seriousness of the offence under s 27 to be “just below the mid-range of objective seriousness”. The applicant’s subjective case was very poor and, as his Honour recognised (at [361]), the need to protect the community was a significant factor in this case. However, that could not justify a sentence that was disproportionate to the offence the applicant committed (Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14).

64. Prior to the allowance for a discount on account on his plea of guilty, the indicative sentence for the offence under s 33(1)(b) was 16 years and 6 months which would ordinarily yield a non-parole period of 12 years and 4 months. His Honour found that the objective seriousness of this offence was “well above the mid-range of objective seriousness”. Given that finding, his Honour’s indicative sentence for this offence could perhaps be characterised as stern but it does not seem disproportionate.

65. An assessment of whether or not an aggregate sentence is manifestly excessive is not confined or determined by a consideration of the indicative sentences, although they can be a guide (JM v R [2014] NSWCCA 297 at [40] per R A Hulme J with whom Hoeben CJ at CL and Adamson J agreed). Hence, a conclusion that one of the two indicative sentences encompassed by an aggregate sentence was stern and that the other appears disproportionately high does not necessarily yield a conclusion that the aggregate sentence was manifestly excessive (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]).

66. Another matter that can be considered in determining whether the “aggregate sentence represents a sound exercise of sentencing discretion” is the “potentials for accumulation” of the various notional sentences (R v Brown [2012] NSWCCA 199 at [35] per Grove AJ). A sentence of 20 years based on two indicative sentences of 10 years and 14 years committed during the same attacks involves significant notional accumulation. It might have been justified had his Honour been able to consider any ideological motive that accompanied the attack, but as noted, his Honour found that could not be considered in relation to the sentencing for these offences.

67. A consideration of notional accumulations also has it limits, as ultimately what is considered is “what is appropriate to reflect the totality of criminality in all of the offending” (Vaughan v R [2020] NSWCCA 3 at [117] per R A Hulme J). Overall, bearing in mind that both offences formed part of the one (brutal) attack on the one victim and even allowing for an exceptionally poor subjective case, I accept that the aggregate sentence was manifestly excessive.

68. I would uphold this ground.

Ground 1 (c): Excessive Accumulation

69. In light of the conclusion in relation to ground 1(b), this complaint does not strictly arise as the process of resentencing in relation to the ss 27 and 33(1)(b) offences will require some consideration of the structure of the sentences imposed by Johnson J. That said, as the issues raised in relation to this ground are relevant to that task it will be addressed.

70. In some respects, the applicant’s submissions in support of this ground repeat the submissions in support of ground 1(a). The submissions point to the structure of the sentence and contend that:

“… despite his Honour’s explicit reference to totality in the Remarks on Sentence, the sentence pronounced by the Court nonetheless reveals a miscarriage in the sentencing discretion with the result that the overall sentence is not one which reflects the totality of offending, but on the contrary is crushing to the applicant.”

71. In Postiglione v The Queen (1997) 189 CLR 295 at 341; [1997] HCA 26 (“Postiglione”), Kirby J referred to the necessity for a sentencing judge to consider whether a proposed sentence “offends the totality principle”, a conclusion that will “more readily be reached where the judge comes to the conclusion that the outcome would be "crushing" and, as such, would not hold out a proper measure of hope for, and encouragement to, rehabilitation and reform.”

72. The notion of avoiding a “crushing sentence” is often referred to in discussions of the totality principle (see for example Postiglione at 304, 308, 340‑341). Sometimes it is referenced as a description of the outcome of the application of the totality principle in the sense that the “principle of totality … enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention by the court” (R v Rossi, Court of Criminal Appeal of South Australia, 20 April 1988, unrep cited by McHugh J in Postiglione at 308). Sometimes the necessity to avoid a crushing sentence “in light of the offender’s record and prospects” is referred to as a second “instance” or “aspect” of totality (see Australian Building and Construction Commissioner v Pattinson (2022) 96 ALJR 426; [2022] HCA 13 at [94] per Edelman J).

73. It is not necessary to address that further including whether there is any practical difference between the two approaches. Instead, it suffices to state that the totality principle, including any necessity to avoid the imposition of a “crushing sentence”, is not a basis to avoid the imposition of a sentence that is “just and appropriate” (Atai v R [2020] NSWCCA 302 at [132]). That a sentence may be “crushing” in the sense of “induc[ing] a feeling of hopelessness and destroy[ing] any expectation of a useful life after release” (MAK at [17]), is “but one of the matters that is taken into account in determining whether [a particular sentence] is beyond the range of sentences properly available to the sentencing judge” (GS v R [2016] NSWCCA 266 at [51]).

74. There is no doubt that his Honour considered all the factors that might contribute to a characterisation of the sentence imposed as “crushing”. His Honour was cognisant of the applicant’s youth and the extremely long period he will serve in custody presumably under difficult conditions. However, at the risk of repetition, his crimes were extremely grave and his subjective case was extremely poor. The concern about protecting Corrective Services officers and other inmates from the applicant and those who would undertake similar attacks as reflected by s 56 was very real.

75. I would reject ground 1(c).

Application for Leave to Appeal against the Sentence imposed by Culver DCJ

The Offences and the Sentence

76. On 19 November 2019, the applicant was called for trial by judge alone before Culver DCJ on an indictment that contained two counts. The first count charged that the applicant, on 15 May 2017, detained Sameh Bayda without his consent with intent to obtain an advantage, namely “psychological gratification”, and at the time of the detention occasioned him actual bodily harm contrary to s 86(2)(b) of the Crimes Act. The second count charged the applicant with assaulting Mr Bayda on the same day contrary to s 61 of the Crimes Act. As at 15 May 2017, the applicant was in custody at the HRMCC in Goulburn. As noted above, he was moved there after his attack on Mr O’Keefe.

77. On the sixth day of the hearing, the applicant entered pleas of guilty. On 5 March 2020, her Honour imposed an aggregate sentence of 10 years’ imprisonment with a non-parole period of 5 years. The sentence was fixed to commence on 19 August 2047 being the day after the expiry of the last non‑parole period imposed by Johnson J, a matter I will return to. Pursuant to s 53A(2)(b) of the Sentencing Act, her Honour specified an indicative sentence of 2 years’ imprisonment for the offence under s 61 and 9 years’ imprisonment for the offence under s 86(2)(b).

78. In the sentencing judgment, her Honour summarised the facts of the offending and resolved the material disputes between the evidence of the victim, Mr Bayda, and the applicant. Her Honour found that the victim was arrested in January 2016 and placed in custody at the HRMCCC. At the time of his arrest the victim was adherent to an “extremist Islamic religious ideology”. The applicant and the victim were distantly related and considered themselves to be cousins. They became cellmates on 18 April 2017. The victim told the applicant that he was no longer practising his religion and engaged in conduct that the applicant considered was forbidden such as no longer praying, making alcohol, viewing pornography and small-scale gambling. The applicant remonstrated with the victim and referred to discussions he had with other inmates he referred to as “Sheikhs”. The applicant attempted to force the victim to read the Quran and told him to undertake “Fajr”, i.e., morning prayer, the following morning.

79. The next day, the applicant confronted the victim about his failure to undertake Fajr. He punched the victim to the right side of the head with a closed fist causing pain and dizziness. The victim fell to the ground. Later that day, the applicant smashed the victim’s television screen and flushed his radio down the toilet. The punching of the victim constituted the assault offence. Her Honour found that the objective gravity of the offence was “at the mid-range”. There is no challenge to that finding.

80. At some point, the applicant entered the victim’s cell holding white ripped bed sheets and a green Quran. He placed the Quran on the table and punched the victim on the left side of the face with a closed fist causing pain. According to her Honour, the victim attempted to grapple with the applicant but was overpowered. The applicant turned the victim over and sat on his back. The victim was then “hogtied, his ankles and legs were bound to his hands with [the] ripped bed sheets”. There was a dispute about whether the victim was repeatedly punched in the back and on the back of his head causing pain. Her Honour found beyond reasonable doubt that he was repeatedly punched.

81. The applicant then read to the victim verses from the Quran relating to exorcism. There was a dispute about whether he was screaming at the victim which her Honour did not resolve. The victim struggled. The applicant then whipped the victim with an auxiliary cord that was used to connect the television to the antennae socket. Her Honour was satisfied beyond reasonable doubt that the victim was whipped at least 20 times. During the whipping the victim screamed in pain. The applicant said to him “[t]his is Hudood, Sharia punishment for watching haram [things that are forbidden] and for making alcohol”.

82. The applicant gave evidence in his sentencing proceedings that he said, “[w]hen are you going to wake up to yourself?”. The victim attempted to push the cell emergency buzzer, however the applicant pushed his hand away. The applicant grabbed a broken razor blade from the nearby bench. He cut the bed sheets off the victim’s hands and feet. The victim was crying and could not move because of the pain to his whole body. The applicant jumped onto the victim’s back and pulled the victim’s head back by the victim’s rat’s tail (a plait at the back of the head). Her Honour found that the applicant held the razor blade near the victim’s neck whilst the applicant was saying, “[a]re you going to repent? Are you going to repent? Are you going to stop doing this kufr?” The victim, fearing for his life, said, “[y]eah I’ve repented, khalos”. The victim said in his evidence, “I lost hope completely, I couldn’t speak at all, I was crying nonstop”.

83. The following day the victim was moved to another cell. Her Honour accepted the victim’s evidence that after the assault his face was red, his eyes were bloodshot, he had red marks all over his thighs, he could not walk on his right side and the “right side of his body had the worst pain and he could not sleep on his right side”.

84. The conduct of the applicant in detaining the victim and conducting some form of “exorcism” constituted an offence under s 86(2)(b) of the Crimes Act 1900 (NSW). Her Honour found that the period of detention was at least 30 minutes to one hour. Her Honour also found that the detention was accompanied by or involved numerous assaults, the use of a razor blade and weapons, a high level of restriction, and a serious form of actual bodily harm as well as being premediated. Further, her Honour found that the applicant was demanding religious compliance and in so doing denied the victim a fundamental human right, specifically freedom of religion, and otherwise caused pain and distress. Her Honour found that the offence was also “in the midrange level of objective gravity”.

Culver DCJ’s Sentencing Judgment

85. Her Honour’s findings of fact and objective seriousness of the offending are set out above. In relation to the other facts and factors relevant to sentencing her Honour generally adopted the findings of Johnson J. Hence, her Honour found that the applicant’s “prospects of rehabilitation in the absence of remorse and in the absence of insight are very bleak” and the risk of reoffending was “high”. Her Honour found that there is no evidence of remorse or contrition. Given the timing of the applicant’s plea of guilty her Honour did not specify a discount for the plea but otherwise considered it as part of the instinctive synthesis. Her Honour also had regard to the circumstances of the applicant’s incarceration, including his designation as an Extreme High Risk Restricted (“EHHR”) inmate since May 2016, which her Honour found resulted in conditions that were “restrictive”.

86. Her Honour concluded that the assault and the take and detain offences “both occurred in the context of the same broad motivation by the [applicant] concerning the same victim” such that there “ought to be some considerable degree of concurrency between the sentences” for the two offences. However, her Honour found that the offences were “wholly separate” to those offences dealt with by Johnson J. Her Honour found that s 56 of the Sentencing Act was engaged and concluded that the sentence for the two offences should be wholly cumulated on the sentence imposed by Johnson J:

“In terms then of the sentencing structure, the Court considers that, in the application of s 56 and noting the discretion it provides nonetheless there ought [to] be a wholly consecutive sentence imposed upon the overall non-parole period imposed by Johnson J. The Court is of the view that between the two offences now for sentence as stated however, there ought to be a considerable degree of concurrency.”

87. The premise of this approach is that s 56 was engaged in relation to the offences committed by the applicant on 15 May 2017. In turn this required that, as at that date, the applicant was a “convicted inmate of a correctional centre” within the meaning of s 56(1)(a) of the Sentencing Act. This issue is raised by ground 2 of the notice of appeal which is addressed by R A Hulme J.

88. Her Honour then made a finding of special circumstances based on the “necessary accumulation”, that is the proportional reduction in the parole period that follows from accumulating sentences, as well as the admissions the applicant made in his interview with the police and his agreement to proceed by way of a judge alone trial. Consistent with this, the ratio of the parole period of the aggregate sentence to the parole period is 50%.

Ground 1: Wrong Maximum Sentence

89. Ground 1 of the notice of appeal in relation to Culver DCJ’s sentence contends that the “sentence proceedings miscarried as a result of Her Honour being misled as to the maximum penalty for the common assault offence”.

90. At the commencement of the sentencing judgment, her Honour recorded that the maximum penalty for the offence under s 61 is 5 years’ imprisonment. In fact the maximum penalty is 2 years’ imprisonment. The Crown’s submissions accepted that the origin of this error was a Crown Sentence Summary that was provided to her Honour which wrongly identified the maximum penalty as 5 years’ imprisonment.

91. The ground of appeal overstates the effect of this error. It is not correct that the “sentence proceedings” miscarried because her Honour was advised of the incorrect maximum penalty. However, as the Crown conceded, it is correct that the sentence imposed was relevantly affected by error (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]). By acting on a wrong assumption as to the maximum sentence her Honour acted upon a “wrong principle” (House at 505). This error clearly gives rises to the necessity in this Court to independently re-exercise the sentencing discretion (Andreata v R [2015] NSWCCA 239 at [28]).

92. I would uphold ground 1.

Ground 2: Application of Section 56 of the Sentencing Act

93. Ground 2 of the notice of appeal contends that “the sentencing proceedings miscarried as a result of her Honour being mistaken as to the application of s 56 of the Crimes Act 1900 (NSW)”.

94. For the reasons just noted, the reference to the “sentencing proceedings” is to be taken as a reference to the “sentencing judgment”. The ground is also intended to refer to s 56 of the Sentencing Act. This ground raises the issue noted above. As indicated, it is addressed in the judgment of R A Hulme J. I agree with his Honour’s reasons and conclusions in relation to this ground. As noted by his Honour it is nevertheless open to consider the policy behind s 56 of the Sentencing Act in fixing any commencement dates on resentencing.

95. It follows that I would uphold ground 2.

Ground 3: Totality Principle

96. Ground 3 of the notice of appeal contends that “her Honour erred in her application of the totality principle by failing to have regard to the total effective period of imprisonment when determining the sentences imposed.”

97. The applicant’s submissions in relation to this ground echo the submissions made in relation to ground 1(a) of the application concerning the sentence imposed by Johnson J. The submissions noted that her Honour referred to the fact that the applicant “had been in custody ever since 9 December 2015”. The submissions nevertheless contended that “despite [her Honour’s] otherwise careful attention to totality, her Honour made no reference to having regard to this period of continuous custody since 9 [sic] December 2015 when determining the commencement, length and non-parole period of the aggregate sentence imposed” which represented 2 years and 8 months’ imprisonment additional to the sentences imposed by Johnson J.

98. As these submissions acknowledge, her Honour discussed the totality principle at length and was cognisant of the fact that the applicant re-entered custody in December 2015. Her Honour determined that, having regard to s 56 of the Sentencing Act and the legislative policy it reflected, it was appropriate to fix the aggregate sentence so that it commenced upon the expiry of the last non-parole period set by Johnson J. Having determined to do so, her Honour then made a finding of special circumstances partly to reflect the effect of the cumulation of non-parole periods upon the proportion that any parole period the applicant might serve to his overall sentence. Of necessity that approach partly addressed the consequence of Johnson J’s sentences being cumulated on the sentences that the applicant served from December 2015 to August 2018. While the overall effect of the sentences was that the proportion of the applicant’s effective parole period to his minimum period in custody from December 2015 was only 13.7%, that circumstance has to be seen in the context of the applicant having committed two brutal assaults on fellow inmates and threatening to kill the Commissioner. Such results are a likely consequence of the enactment of s 56 as well as the giving effect to of the legislative policy that it reflects.

99. I would reject ground 3.

Resentencing

100. It follows from the above that I consider that the Court must discharge the obligation imposed by s 6(3) of the Criminal Appeal Act 1912, namely, determine whether a sentence more or less severe is warranted in law and should have been passed. However, this obligation only arises in respect of the offences under ss 27 and 33(1)(b) of the Crimes Act 1900 dealt with by Johnson J and the offences dealt with by Culver DCJ. As no error has been established in relation to the sentences imposed for the Threat to Kill offence and the Acts in Preparation offence, no power arises in this Court to reconsider them. However, s 59(1) of the Sentencing Act confers a power to vary the commencement date of those sentences where it varies or quashes other sentences. Given that the term of the sentence for the Threat to Kill offence precedes the sentence for the offences under ss 27 and 31, there is no reason to revisit its commencement date.

Evidence on Resentencing

101. Two affidavits were read in this Court on the usual basis (Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [4]) . The applicant’s mother swore an affidavit on 29 April 2022. She confirms that the applicant has received regular visits from his family since he was sentenced. However, during the period 2020 to early 2022 the applicant’s family could only contact him via audio-visual means. She said that this contact would usually last for no more than 20 minutes and there were often problems with the “connection breaking down”. She said that in-person visits have recommenced, but they are limited to 30 minutes. The applicant’s mother also stated that in late December 2020 the applicant’s father received a serious medical diagnosis which to her observation has caused the applicant “to have reflected more on his life and the consequences of his actions”.

102. An affidavit sworn by the applicant’s solicitor was read. The material annexed to that affidavit suggests that it is likely that the applicant will retain his EHRR classification for a significant period and will not receive a medium security classification until at least eight years prior to the expiry of his sentence. The affidavit noted that, while the applicant has been detained at the HRMCC, he has not had the opportunity to participate in employment or any group-based offender programs or courses of education. Further, the prison records indicate that since the applicant was sentenced by Johnson J, he has been subject to an “exceptional lock-down” for 94 out of 761 days.

103. The applicant’s solicitor annexed material indicating that since August 2019 the applicant has incurred five breaches of the prison’s disciplinary rules relating to incidents on four days being 9 August 2020, 21 August 2020, 9 February 2021 and 10 September 2021. Two of those days concerned damage to prison property. The incident on one of the other days involved the applicant making a threat about an officer when the officer refused to let him out of his cell to work as a unit cleaner. The applicant stated, “I will jump on his fucking head if I’m not let out”. The applicant was restricted from making telephone calls and undertaking leisure activities for seven days as punishment. The Crown characterised these incidents as involving “five relatively minor breaches of prison disciplinary rules”. The affidavit indicates that the applicant will soon be moved to a less restrictive area of the correctional centre at Goulburn where he will be permitted to participate in education course and rehabilitation programs.

Submissions on Resentencing

104. The applicant did not seek to challenge the findings of Johnson J or Culver DCJ save that it was submitted that “there is more reason to be somewhat optimistic about the applicant’s prospects” of rehabilitation since the applicant has not committed any offence since he set fire to his cell on 20 June 2017 as well as the evidence noted above. However, the reliance on his lack of offending since 2017 has to be considered in light of the letter the applicant submitted to Johnson J on or about 11 April 2019 the contents of which are summarised in Hraichie (No 3) at [270] to [292]. His Honour found that letter confirms that, even after several years in custody, the applicant “remain[ed] firmly committed to violent jihad”, defended the “random murder of an innocent man such as Curtis Cheng” and expressed limited “regret for part of his attack on Mr O’Keefe, not because he is sorry for it, but because he considers that some of the things he did to him were not strictly authorised by his religious beliefs” (at [290] to [291]). Judge Culver noted that, in the applicant’s evidence before her given in late 2019 and early 2020, the applicant proudly defended his brutal assault on Mr Bayda.

104. Overall, I consider that the applicant’s relatively recent cessation of the mayhem he caused in custody in 2016 and 2017 does not warrant any revisitation of the findings of either Johnson J or Culver DCJ about his prospects of rehabilitation and likelihood of reoffending.

105. Otherwise, on resentencing the applicant submitted that the indicative sentences for the ss 27 and 33(1)(b) offences were high especially when compared to the findings of objective seriousness. It was also submitted that in determining appropriate sentences “for the four offences [dealt with by Johnson J], this Court would determine a sentence reflecting a greater degree of concurrency appropriate to the overall criminality of the offending” and to avoid a “crushing sentence”. As noted, this Court is only considering resentencing the applicant on two of the offences dealt with by Johnson J. In relation to the offences dealt with by Culver DCJ it was submitted that it was open to this Court to quantify a “modest numerical discount” for the utilitarian value of the applicant’s plea of guilty and that otherwise there should be some concurrency with the sentences imposed by Johnson J for the Acts in Preparation offence.

106. The Crown submitted that there should not be any quantified discount for the applicant’s pleas of guilty before Culver DCJ. I agree. Given the timing of the applicant’s plea, coming as it did, after he gave evidence, I do not consider it appropriate or possible to quantify a discount. I propose to treat the applicant’s plea in the same manner as her Honour.

107. The Crown submitted that any consideration of the applicant’s custodial conditions must be tempered by the fact that those conditions are “overwhelmingly” a result of his own conduct. There is some force in that submission although the applicant is not responsible for pandemic-related restrictions.

108. The Crown conceded that, in light of the overall effective sentence that was imposed or is to be imposed, it was open to this Court to make any sentence imposed for the offences dealt with by Culver DCJ partly concurrent with the sentences imposed by Johnson J, although the starting point under s 56 is they should be cumulated. For the reasons already stated, s 56 of the Sentencing Act does not in terms apply in the sentencing for the offences dealt with by Culver DCJ.

Determination

110. I have already set out my findings on the disputed issues that arise on resentencing. I otherwise adopt the findings of each of Johnson J and Culver DCJ including their assessment of the objective seriousness of each offence.

111. In relation to the offence under s 27 of the Crimes Act 1900 (NSW) committed against Mr O’Keefe, I would specify an indicative sentence of 11 years and 6 months imprisonment prior to the allowance for the applicant’s plea of guilty. After a discount of 25% for his plea of guilty and rounding, the indicative sentence becomes 8 years and 7 months with a non-parole period of 6 years and 6 months. For the offence under s 33(1)(b) of the Crimes Act 1900 (NSW), I would specify an indicative sentence of 16 years’ imprisonment. After allowance for a discount of 15% for his plea of guilty, I would indicate a sentence of 13 years and 7 months with a non-parole period of 10 years and 2 months. For both offences, I would impose an aggregate sentence of 16 years and 6 months with a non-parole period of 12 years and 4 months.

112. In relation to the assault on Mr Bayda, I would indicate a sentence of 12 months’ imprisonment. In relation to the offence under s 86(2)(b) of the Crimes Act 1900 (NSW) committed against Mr Bayda I would indicate a sentence of 8 years’ imprisonment bearing in mind her Honour’s finding as to the motivation for the offence. I would impose an overall aggregate sentence of 8 years and 3 months. Like her Honour, I would make a finding of special circumstances. The fixing of a non-parole period for these offences is difficult. The degree of potential cumulation of the sentences and the applicant’s circumstances warrant a substantial parole period. However, there must be some effective period in custody to reflect the seriousness of the crime committed against Mr Bayda. I would fix a non-parole period of 3 years and 3 months allowing 5 years for the parole period.

113. In terms of commencement dates, as noted there is no basis to interfere with any aspect of the sentence for the Threat to Kill offence including the commencement date of 19 August 2018. Having regard to the fact that the applicant has been in custody since December 2015 and the likely period of time he will spend in custody I would direct under s 56(3) that the revised aggregate sentence for the offences under ss 27 and 33(1)(b) commence 12 months prior to the expiry of the non-parole period for that sentence, i.e., 19 March 2022. That sentence would then run to 18 September 2038 with the non-parole period expiring on 18 July 2034. I would allow for the same level of overlap between that sentence and the sentence for the Acts in Preparation offence that Johnson J provided for, namely, 5 years. Hence, that sentence will commence on 19 July 2029. Its non-parole period will expire on 18 July 2044 and the total sentence will expire on 18 July 2049.

114. I would fix the commencement date for the revised aggregate sentence for the offences dealt with by Culver DCJ so that it commences 12 months prior to the expiry of the non-parole period for the Acts in Preparation offence, i.e., 19 July 2043. Hence, the non-parole will expire on 18 October 2046 and the total sentence will expire on 18 October 2051.

115. The overall effect of these variations and sentences is that for the offences dealt with by Johnson J and Culver DCJ, the applicant will serve a minimum non-parole period of 28 years and 2 months with a parole period of 5 years. He will be first eligible for release on 19 July 2043.

Proposed Orders

116. In relation to proceedings No 2016/277456 and 2016/108074 being the application for leave to appeal from the sentences imposed by Johnson J on 2 August 2019, I propose the following orders:

1. Grant the applicant leave to appeal;

2. Allow the appeal in part;

3. Set aside the aggregate sentence imposed for the offence of wound with intent to murder contrary to s 27 of the Crimes Act 1900 (NSW) and inflict grievous bodily harm with intent to do the same contrary to s 33(1)(b) of the Crimes Act 1900 (NSW) and, in lieu thereof:

   (a)   Sentence the appellant to an aggregate term of imprisonment of 16 years and 6 months commencing on 19 March 2022 and expiring on 18 September 2038;

   (b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999, set a non-parole of 12 years and 4 months’ imprisonment expiring on 18 July 2034;

   (c) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the offender that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence are:

   (i) 8 years and 7 months’ imprisonment with a non-parole period of 6 years and 6 months for the offence under s 27 of the Crimes Act 1900 (NSW).

   (ii) 13 years and 7 months’ imprisonment with a non-parole period of 10 years and 2 months for the offence under s 33(1)(b) of the Crimes Act 1900 (NSW).

4. Vary the commencement date of the sentence imposed for the offence under s 101.6(1) of the Criminal Code (Cth) so that it commences on 19 July 2029 with the non-parole period of 15 years expiring on 18 July 2044 and the balance of term of five years expiring on 18 July 2049.

5. Appeal otherwise dismissed.

   117. In relation to proceedings No 2018/281246 being the application for leave to appeal from the sentences imposed by Culver DCJ on 5 March 2020, I propose the following orders:

6. Grant the applicant leave to appeal;

7. Allow the appeal.

8. Set aside the aggregate sentence imposed for the offences under s 61 and s 86(2)(b) of the Crimes Act 1900 (NSW) and, in lieu thereof:

   (a)   Sentence the appellant to an aggregate term of imprisonment of 8 years and 3 months commencing on 19 July 2043 and expiring on 18 October 2051.

   (b) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999, set a non-parole of 3 years and 3 months’ imprisonment expiring on 18 October 2046.

   (c) Pursuant to s 53A(2)(c) of the Crimes (Sentencing Procedure) Act 1999, the Court indicates to the offender that an aggregate sentence is being imposed and the sentences that would have been imposed for each offence are:

   (i) Imprisonment for 1 year for the offence under s 27 of the Crimes Act 1900 (NSW);

   (ii) 8 years’ imprisonment for the offence under s 86(2)(b) of the Crimes Act 1900 (NSW).

9. The applicant will be first eligible for release on parole on 19 October 2046.

   118. R A HULME J: I agree with the reasons, conclusions and orders proposed by Beech-Jones CJ at CL.

   119. In relation to the appeal against the aggregate sentence imposed by Culver DCJ, despite ground 1 being upheld, it remains necessary to resolve ground 2 of the appeal for the purpose of resentencing.

   120. Ground 2 asserts that her Honour erred in applying s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Most of the statutory provisions relating to the operation of s 56 have been set out and discussed in the judgment of the Chief Judge. I will supplement that only as necessary to address this ground.

   121. The parties’ approach to this issue was initially flawed due to reference being made to the current legislative provisions, some of which were not those that were in force at the relevant time. As a result, the parties were given leave at the hearing of the application to provide further written submissions. A jointly prepared “Supplementary note regarding Ground 2” (Supplementary note) was thereafter provided containing an agreed position as to the applicable legislative provisions. There remained a dispute as to the appropriate application of those provisions to the sentencing by her Honour.

   122. The sentencing by Culver DCJ occurred on 5 March 2020. Assuming for the moment that s 56 applied, by this time the applicant was “an offender … who, when being sentenced [was] subject to another sentence of imprisonment that [was] yet to expire”. That other sentence was imposed by Johnson J for the Threat to Kill offence; it being one of 6 years and 3 months with a non-parole period of 4 years and 7 months, commencing on 19 August 2018. Accordingly, it was s 56(2)(a) that triggered the requirement for the sentence(s) Culver DCJ imposed to be served consecutively in the absence of a contrary direction being made pursuant to s 56(3).

   123. The stipulation of consecutive service of sentences in s 56(2) applied not only to the sentence the applicant was subject at the time when he was being sentenced but also in respect of any “further sentence of imprisonment yet to commence”. In addition to the sentence just mentioned, the applicant had two further sentences imposed by Johnson J: the aggregate sentence of 20 years with a non-parole period of 15 years for the s 27 and s 33(1)(b) offences commencing on 19 August 2022, and the sentence of 20 years with a non-parole period of 15 years for the Acts in Preparation offence commencing on 19 August 2032. The last of these non-parole periods was scheduled to expire on 18 August 2047.

   124. The practical effect of this was that, unless a direction was made by Culver DCJ pursuant to s 56(3), the sentences she imposed would be served consecutively from 19 August 2047.

   125. The critical question, however, is whether s 56 applied to the sentencing by Culver DCJ. For that to be the case, the two components of s 56(1)(a) needed to be satisfied. Namely, the offence(s) must have involved “an assault, or any other offence against the person” and must have been committed by the offender while he was “a convicted inmate of a correctional centre”.

   126. As to the first component, the offences were both clearly offences against the person. They were contrary to ss 61 and 86(2)(b) of the Crimes Act; both within Part 3 (“Offences against the person”).

   127. As to the second component, there is a dispute as to whether the applicant was a “convicted inmate of a correctional centre” at the time of the offences. Both offences were committed on or about 15 May 2017. As noted earlier, the applicant was the subject of sentences imposed by the Local Court at Bankstown on 20 January 2016, some of which were for a total term of 19 months and 6 days which ran until 13 July 2017 with non-parole periods of 14 months and 11 days which expired on 18 February 2017. The offences for which Culver DCJ was called upon to impose sentences were committed during the parole period of these sentences.

   128. There is no dispute that upon being sentenced, a warrant was required to be issued by the Local Court committing the applicant to a correctional centre in accordance with s 62 of the Crimes (Sentencing Procedure) Act. Such a warrant is “sufficient authority … for the governor of the correctional centre … to keep the offender in … custody for the term of the sentence”: s 62(3)(b).

   129. A sentence imposed by the District Court on 17 April 2018 subsequently rendered the applicant subject to a non-parole period that ran from 19 February 2017 until 18 August 2018 with the balance of term running until 18 May 2019. The non-parole period of that sentence subsumed the (approximate) date upon which the s 61 and s 86(2)(b) offences were committed. However, the applicant only became subject to that non-parole period (and total term) after the commission of these offences. The offences were therefore not committed “while a convicted inmate of a correctional centre” in respect of the District Court sentence.

   130. It is the agreed position of the parties that in the course of sentencing the applicant on 20 January 2016, the Local Court made a “parole order” pursuant to s 50 of the Crimes (Sentencing Procedure) Act (since repealed by the Parole Legislation Amendment Act 2017 (NSW) as from 26 February 2018). Section 50 was in these terms:

   “50 Making of parole orders by court

   (1) When a court imposes a sentence of imprisonment for a term of 3 years or less, being a sentence that has a non-parole period, the court must make an order directing the release of the offender on parole at the end of the non-parole period.

   (2) A parole order may be made under this section even though at the time it is made it appears that the offender may not be eligible for release at the end of the non-parole period because of some other sentence to which the offender is subject.

   (3) The failure of a court to comply with the requirements of this section with respect to a sentence does not invalidate the sentence.”

   131. It may be taken that the parole order made by the Local Court complied with the terms of s 50; hence the order must have directed the release of the applicant at the end of the non-parole period.

   132. The applicant was not released from custody when this parole order took effect on 18 February 2017. He had been charged on 8 April 2016 with the ss 27 and 33(1)(b) offences subsequently dealt with by Johnson J and was on remand, having been refused bail in respect of them.

   133. So, having become entitled to release on parole in respect of the Local Court sentences, but continuing to be held in custody on remand in respect of further charges, the question is: was the applicant a “convicted inmate of a correctional centre” when he committed the s 61 and s 86(2)(b) offences on 15 May 2017?

   134. Culver DCJ said in her sentencing remarks that both parties had agreed that the offender was a convicted inmate at the time of the offending. “He had not been released to parole in respect of the [Bankstown Local Court sentences] and accordingly must be characterised as a convicted inmate of a correctional centre at the time he committed these offences”. She repeated shortly after that the “both parties agree that the offender should in fact be characterised as a convicted inmate, because of the unexpired parole period and the failure of release to parole for the [Bankstown Local Court] sentences”. Her Honour subsequently determined that “in the application of s 56 and noting the discretion it provides nonetheless there ought be a wholly consecutive sentence imposed upon the overall non-parole period imposed by Johnson J”.

   135. It is necessary to turn to the relevant provisions of s 158 and then to s 126 of the Crimes (Administration of Sentences) Act 1999 (NSW) as they were at the relevant time. They are both within Part 6 of the Act which is headed, “Parole”.

   “158 Effect of parole orders made by court

   (1) A parole order made by a court under section 50 of the Crimes (Sentencing Procedure) Act 1999 in relation to a sentence is conditional on the offender being eligible for release on parole in accordance with section 126 of this Act at the end of the non-parole period of the sentence.

   (2) If the offender is not eligible for release at that time, the offender is entitled to be released on parole as soon as the offender becomes so eligible.

   …”

   136. Was the applicant “eligible for release on parole in accordance with section 126 … at the end of the non-parole period of the [Local Court] sentence[s]”? Section 126 provides (relevantly):

   “126 Eligibility for release on parole

   (1) Offenders may be released on parole in accordance with this Part.

   (2) An offender is eligible for release on parole only if:

   (a) the offender is subject to at least one sentence for which a non-parole period has been set, and

   (b) the offender has served the non-parole period of each such sentence and is not subject to any other sentence.

   …”

Submissions for the applicant

137. The applicant referred to s 3(1) of the Crimes (Sentencing Procedure) Act which provided that “convicted inmate has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999”.

138. The Crimes (Administration of Sentences) Act provides in s 3(1) that “convicted inmate means a person referred to in section 4(1)(a), (b), (c), (c1), (d1) or (d2)”. Only s 4(1)(a) could be relevant:

“4 Application of Part

(1) This Part applies to—

(a) any person the subject of a warrant under section 62 of the Crimes (Sentencing Procedure) Act 1999 by which a court has committed the person to a correctional centre to serve a sentence or the remainder of a sentence by way of full-time detention, other than a person who is on release on parole …”

139. The applicant submitted that none of the provisions referred to in s 4(1) pertaining to the meaning of “convicted inmate” applied to him at the time of committing the offences. At the expiry of the non-parole periods, he was to be released to parole pursuant to the parole order made by the Local Court under s 50 of the Crimes (Sentencing Procedure) Act. He was excluded from the description of persons in s 4(1)(a) who were the subject of a warrant under s 62 of the Crimes (Sentencing Procedure) Act because he was “a person who is on release on parole”. Being in custody on remand in respect of the ss 27 and 31 charges was captured by s 4(1)(d) of the Crimes (Administration of Sentences) Act but that was not included in the definition of “convicted inmate” for the purposes of the Crimes (Sentencing Procedure) Act.

Submissions of the Crown

140. The Crown submitted that there was no error in her Honour finding the applicant was a “convicted inmate” for the purposes of s 56. As at the date of the offences (15 May 2017) he was in custody, having completed the non-parole period but not the total sentence of imprisonment imposed on 20 January 2016 at Bankstown Local Court and had not been released on parole. He was also on remand for the matters later dealt with in the Supreme Court.

141. The Crown submitted that the applicant was a “convicted inmate” under s 4(1)(a) as he was still serving the head sentence and he had not been released on parole (the final words of s 4(1)(a)), notwithstanding he was eligible for release.

Resolution

142. Resolution of this issue turns on the correct construction of the statutory provisions as to the meaning of the term “convicted inmate of a correctional centre” in s 56(1)(a) of the Crimes (Sentencing Procedure) Act.

142. The starting point is the definition of “convicted inmate” in s 3(1) of the Crimes (Sentencing Procedure) Act which relies on the definition of that term in s 3(1) of the Crimes (Administration of Sentences) Act which the refers to part, but not all, of the provisions of s 4(1). It is only s 4(1)(a) that could be apt. Its terms have been set out above.

143. The use of the expression “other than a person who is on release on parole” is clearly meant to exclude a person who would otherwise be within the preceding expression: “any person the subject of a warrant under section 62 of the Crimes (Sentencing Procedure) Act 1999 by which a court has committed the person to a correctional centre to serve a sentence or the remainder of a sentence by way of full-time detention”.

144. The applicant was a person described by the first expression. Standing alone that would render him a “convicted inmate”. However, he was also a person within the second expression. This operates to exclude him from that first description. The parole order made by the Local Court operated as a direction that the applicant be released on parole as of 18 February 2017. There was nothing in s 126 of the Crimes (Administration of Sentences) Act that qualified the applicant’s eligibility for release in accordance with the parole order made by the Local Court under s 50 of the Crimes (Sentencing Procedure) Act. Therefore, from the expiry of the Local Court non-parole period on 18 February 2017, the applicant was only in custody because he had been refused bail for the ss 27 and 33(1)(b) offences.

145. Accordingly, the applicant was not a “convicted inmate of a correctional centre” at the time of the commission of the two offences for which Culver DCJ was called upon to impose sentence. Section 56 of the Crimes (Sentencing Procedure) Act did not apply.

146. That is sufficient to explain why Ground 2 of the appeal concerning the sentence imposed in the District Court must be upheld.

147. For the purpose of resentencing it is appropriate to note the important policy underlying s 56 and the potential application of that policy even in cases to which the section does not apply. Johnson J referred to this in his remarks on sentence:

“[315] … In R v Windle [2012] NSWCCA 222, Basten JA (Price J agreeing) noted at [56](b), in the context of a serious offence of violence committed by one inmate against another whilst in custody, the importance of maintaining discipline within the prison system and protecting other offenders from criminal assaults by fellow inmates, a matter which is reflected in the general requirement for such offences to be the subject of cumulative sentences.

[316] In R v Jeremiah [2016] NSWCCA 241, the Court of Criminal Appeal (Meagher JA, Davies and Fagan JJ), in the context of a Crown appeal concerning a sentence imposed for a serious offence of violence committed by one inmate against another in custody, said at [9]-[10]:

‘9 Accompanying the need to reflect total criminality is the Court’s concern to maintain public confidence in the administration of criminal justice. The concurrence ordered by his Honour, if allowed to stand, would undermine that confidence and give rise instead to a perception that a person who has committed a serious offence has escaped effective punishment: Regina v Wheeler [2000] NSWCCA 34 at [36] – [37]; Pannowitz v R [2016] NSWCCA 13 at [40]. A case such as the present involves an especially important factor relevant to general deterrence which must be taken into account in determining whether concurrence of any degree (and, if so, what degree) will be consistent with the imposition of a sufficient penalty overall. Namely, the sentence must effect sufficient general deterrence to demonstrate that violence and disorder between prisoners in custody will not be tolerated by the courts: R v Fyffe [2002] NSWSC 751 at [33]; R v Hoskins [2004] NSWCCA 236 at [62] – [63]; R v Windle [2012] NSWCCA 222 at [56].

10 This consideration was stated in these terms by Barr J in R v Fyffe at [33]:

“It is particularly important that courts impose sentences calculated to deter the commission of offences in prison. Officers who administer prison communities are entitled to expect that inmates will be deterred from offending. Equally, inmates serving their sentences as best they may are entitled to as much protection as the courts can afford them”.’

[317] Even where the case did not fall strictly within the terms of s.56(2), the Court in R v Jeremiah applied the policy of consecutive sentences at [12]:

‘Full accumulation of the sentence in this case would be consistent with the legislative policy underlying s 56(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). […] The respondent was not a ‘convicted inmate’ at the time of the assault. Section 56 does not apply to him. But the full accumulation which the Court on this appeal considers appropriate is certainly not in tension with the objectives of s 56.’”

149. N ADAMS J: I have had the significant advantage of reading the judgments of Beech-Jones CJ at CL and R A Hulme J in draft. I agree with the orders proposed by Beech-Jones CJ at CL for the reasons provided by both his Honour and R A Hulme J.

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Amendments

13 July 2022 - Name of counsel appearing for Applicant added to the coversheet.

Decision last updated: 13 July 2022