Jones v The King

Case •

[2025] NSWCCA 28

•

05 March 2025

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Jones v R [2025] NSWCCA 28
Hearing dates: 14 February 2025
Decision date: 05 March 2025
Before: Leeming JA, Dhanji and Yehia JJ
Decision:

1. Extend the time within which to appeal to 14 February 2025.

2. Refuse leave to appeal in respect of proposed grounds 1 and 2.

3. Grant leave to appeal in respect of proposed ground 3 as amended on 14 February 2025.

4. Appeal allowed.

5. Quash the sentence imposed by the District Court on 6 March 2020, and in lieu thereof impose an aggregate sentence of 12 years imprisonment commencing on 29 August 2018 and expiring on 28 August 2030, with a non-parole period of 7 years and 4 months, commencing on 29 August 2018 and expiring on 28 December 2025. The applicant will first be eligible for release to parole on the expiration of the non-parole period on 28 December 2025.

Catchwords:

CRIME — appeal against sentence — whether error in applying discount for guilty pleas — whether error in failing to have regard to offender’s mental illness — whether additional evidence of historical sexual abuse should be admitted on appeal — no challenge to such evidence and its effect on offender’s later life — evidence admitted appeal allowed and offender resentenced

Legislation Cited:

Crimes Act 1900 (NSW), ss 51B, 86, 99, 154A, 154F, 192E, 547D

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 44, 53A

Criminal Procedure Act 1986 (NSW), ss 166, 294

National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth), ss 16, 29, 54

Road Transport Act 2013 (NSW), s 53

Cases Cited:

Bao v R [2016] NSWCCA 16

Barnes v R [2022] NSWCCA 140; (2022) 299 A Crim R 483

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

Bugmy v R (2013) 249 CLR 571; [2013] HCA 37

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

Elali v R [2025] NSWCCA 9

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

JL v R [2014] NSWCCA 130

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

Khoury v R [2011] NSWCCA 118; 209 A Crim R 509

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207

R v AWF (2000) 2 VR 1; [2000] VSCA 172

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Shortland v R [2024] NSWCCA 174

Category:Principal judgment
Parties: George Edwin Jones (Applicant)
Crown (Respondent)
Representation:

Counsel:
H Maarraoui (Applicant)
A Isaacs (Respondent)

Solicitors:
O’Brien Winter Partners (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2019/00190220; 2018/00265186
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
06 March 2020
Before:
Wass SC DCJ
File Number(s):
2019/00190220; 2018/00265186

JUDGMENT

  1. THE COURT: Mr George Edwin Jones seeks leave to appeal, substantially out of time, from an aggregate sentence imposed by the District Court on 6 March 2020 of 13 years imprisonment with a non-parole period of 8 years. That sentence was back-dated to 29 August 2018, the date of his arrest. The sentence was imposed for a suite of offending, all of which occurred in August 2018. He had been released on parole on 18 July 2018, following his earlier conviction for serious offences of possessing two firearms without a licence.

  2. The prosecution proceeded on two charge certificates. The first identified charges of detaining the victim in company with the intention of committing a serious indictable offence (larceny), while occasioning actual bodily harm contrary to s 86(3) of the Crimes Act 1900 (NSW), a charge of stealing a motor vehicle (a Harley Davidson motorcycle) contrary to s 154F of the Crimes Act, a charge of demanding property (a Harley Davidson motorcycle) with menaces in company with intent to steal the property contrary to s 99(2) of the Crimes Act, and a further charge under that section for demanding with menaces in company with intent to steal money and firearms. There were also four related offences within the meaning of s 166 of the Criminal Procedure Act 1986 (NSW): driving while unlicensed contrary to s 53(1)(a) of the Road Transport Act 2013 (NSW), driving a stolen vehicle contrary to s 154A(1)(b) of the Crimes Act, driving a vehicle knowing police officers were in pursuit and not stopping contrary to s 51B(1) of the Crimes Act and carrying a cutting weapon at the time he was apprehended contrary to s 547D of the Crimes Act. All these charges related to offending on the evening of 25/26 August 2018.

  3. A separate charge certificate identified a charge of driving a stolen vehicle contrary to s 154A(1)(b) of the Crimes Act, coupled with a related offence under s 192E(1)(a) of the Crimes Act of obtaining some 12.76 litres of petrol by deception. These charges related to offending on 18 August 2018.

  4. The maximum penalties for the principal offences were:

  1. Detain in company with intent to commit serious indictable offence while occasioning actual bodily harm: 25 years imprisonment;

  2. Steal Harley Davidson motorcycle: 10 years imprisonment;

  3. Demand property with menaces in company with intent to steal (x 2): 14 years imprisonment;

  4. Drive a stolen motor vehicle: 5 years imprisonment.

  1. The sentencing judge erroneously stated that the maximum sentence for the second offence (the theft of the Harley Davidson motorcycle) was 5 rather than 10 years imprisonment. It was not suggested that that error was material, and in any event, it was favourable to the applicant.

  2. The applicant pleaded guilty in the Local Court, and was entitled to a 25% reduction for his pleas. Following a sentencing hearing on 5 March 2020, the sentencing judge imposed sentence on 6 March 2020. Her Honour indicated (in accordance with s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW)) the following sentences for the individual offences:

For the specially aggravated detain in company with an intent to gain advantage, occasioning actual bodily harm, I indicate a period of 12 years imprisonment;

In respect of the stealing the Harley Davidson motorcycle, I indicate two years imprisonment;

In respect of the demanding property with menaces with intent to steal the motorcycle, I indicate eight years imprisonment;

The demanding property in company with menaces to steal the cash and firearms, I indicate eight years imprisonment;

The driving conveyance without the consent of the owner and with the obtaining petrol by deception on the Form 1, I indicate a term of imprisonment of 12 months;

In respect of the related matters, I indicate a term of 18 months imprisonment for the police pursuit.

In respect of the other matters, I have dealt with them under s 10A and impose no further penalty.

The offending

  1. The applicant gave evidence at the sentencing hearing and was cross-examined, with the sentencing judge expressing scepticism with parts of his evidence. Indeed her Honour said, by reference to particular aspects of his evidence, that “he was willing to say whatever might assist him on sentence”. Her Honour declined to accept parts of his evidence.

  2. Sentence was imposed on the basis of agreed facts, which were recited by her Honour and from which the following is taken.

The offending on 25/26 August 2018

  1. The principal victim, to whom her Honour referred as “Mr M”, was following marital problems staying with a friend in New Lambton. On the weekend of 25 and 26 August 2018, Mr M’s friend was away and Mr M was alone at the house. On the Saturday afternoon he looked at a website with classifieds for sexual encounters. He responded to an ad by “Sarah” and arranged to pick her up from Hamilton train station. They returned to the unit and had a couple of drinks. Sarah tried to initiate sex with him but he said he was not interested. She mentioned calling some other friends of hers around for group sex, and sent some messages and talked to people on her phone. At one point she asked to use Mr M’s mobile phone as she was out of credit, and he let her do so. She then said her friends were coming over. At no point was there any mention of money or paying for any type of sexual acts.

  2. Some time during the night Sarah received a phone call. After the call, she told Mr M her family had been involved in a car accident and she needed to go and pick them up. Mr M agreed to let Sarah drive his vehicle as he had been drinking alcohol. She drove to an address in Lambton where police were attending a car accident. She drove to a house further down the street from that accident, went into the house, and returned not with her family but with the applicant and another male and female, who came running out and got in the car, followed by Sarah.

  3. The group drove back to the unit at New Lambton. The applicant asked for a drink for himself and for the female and male that he had arrived with. Mr M then went and prepared drinks for them and for himself. Mr M overheard the offender calling Sarah “Skye”, as well as the offender talking about being the head of his gang “DTR” and how he had been in prison before. Another two people, a male and female, arrived at the unit some time later by Uber.

  4. The offender said to Mr M, “You owe her,” pointing to the blonde girl who had arrived last at the unit and the other male, “$500 for coming here for sex.” Mr M said, “I never called her. Sarah did. I’m not paying for anything.” The offender punched Mr M with a closed fist on the chin, causing him to collapse to the floor. The offender then kicked him in the stomach and head a couple of times and caused him to lose consciousness for a moment.

  5. When Mr M regained consciousness and realised he needed to get away from the unit or he was going to be hurt more, he went to the back of the unit and tried to leave through a side gate but it was padlocked. The applicant came outside and threw Mr M onto the ground, causing his knees to hit the cement. He grabbed Mr M by the shirt and said, “I’ll bash your fucking skull in if you try to leave.”

  6. The applicant then told Mr M that he was going to drive him and the blonde girl into Newcastle. He complied, fearing that he would be bashed if he did not. Mr M got into his blue car with the applicant and the blonde girl sitting in the back of the vehicle. The applicant had the handle of either a gun or a knife poking out of his shoulder bag. The handle was wrapped in electrical tape. The applicant told Mr M to drive down a dark alley in the Newcastle CBD area and stop. He did as he was told. Mr M then overheard the applicant saying to the blonde girl something like, “Your choice. Your money or we can let him bleed out here if you want.”

  7. Mr M thought the applicant was either going to shoot or stab him. The applicant told Mr M that he was going to drive now. Mr M let the applicant drive, as he was scared of getting hurt or killed. The applicant drove recklessly through Newcastle, speeding and running red lights.

  8. They ended up at the Newcastle boardwalk where the applicant said, “You get $400 out for her time.” Mr M felt he could not say no, as he feared a further assault. The applicant then drove to Hunter Street and parked at the northern end of the mall and the three of them then walked to a shop at the corner. Mr M was intending to withdraw the $400 from an ATM but they did not have one. Mr M was told that there was one just a short walk up the mall. They walked to that ATM and at about 4.55am on Sunday 26 August 2018 Mr M withdrew $400 from his National Australia Bank account. He handed that money to the applicant. That was depicted on high quality CCTV footage.

  9. They then walked back to Mr M's car and Mr M got in the back. The applicant got in the driver's seat and the blonde girl in the front passenger seat. The applicant gave the girl $200 and said it was her half and he kept the other $200. The applicant then drove around Newcastle, making threats that he was going to cave Mr M's head in and other threats of violence against him. At about 5.04am he drove to McDonald’s. The applicant ordered food and drinks totalling some $56 and forced Mr M to pay for it, which he did with his National Australia Bank debit card.

  10. The applicant then drove to Marketown and demanded another $600 from Mr M. Mr M told him he did not have any money and the applicant told him he was “full of shit” and that he had a credit card that he could transfer the money from. The applicant then told Mr M that he had to get another $600 to make everything square and then he would take him home. Mr M believed that if he did not get the money out, the applicant would further hurt him. He walked over to the Commonwealth Bank and withdrew $600 from his account, returned to the back seat and gave it to the applicant.

  11. The applicant then drove back towards Mr M's unit. As they neared the unit, the applicant veered off and drove around the corner. He did this a couple of times before returning to the unit. When Mr M walked into the unit, he saw that the ground floor had been trashed, with all of the drawers pulled apart, and that the television was missing. The woman Mr M knew as Sarah and the other female and male whom he had picked up originally with the applicant had gone. Another female was now at the unit. She had a bandana pulled over the lower half of her face. Mr M described her as being of Aboriginal descent and gave a further description and said that she was wearing a grey hoodie. Mr M heard the applicant call this female his sister.

  12. The applicant was upset that the others had left and started talking to the remaining female about what they would do with Mr M. The applicant pulled out what Mr M perceived to be a Glock pistol from his shoulder bag and pointed it at him.

  13. The sentencing judge noted that she had imposed sentence on the basis that the Crown could not prove beyond reasonable doubt that it was a pistol.

  14. Mr M thought that the applicant was going to shoot him. The applicant punched Mr M repeatedly in the head. He was unsure whether or not he was also hit with what he thought was the gun. The applicant then tied Mr M’s hands behind his back with a USB cable. The applicant then sat Mr M down on a dining chair and continued to punch him in the face and head, and threatened him with the gun.

  15. The applicant demanded the key to Mr M’s Harley Davidson motorcycle which was parked in the garage. That motorcycle had been handed down to Mr M by his father and held great sentimental value. Mr M said he did not know where the key was and so the applicant and the female pulled Mr M off the chair and marched him upstairs. They threw him to the ground in the bathroom and he was kicked by the applicant numerous times to the body.

  16. Mr M thought that they were going to kill him. The applicant threw the victim into the shower stall and then left him for a period of time on his knees. Mr M could hear the applicant and others downstairs going through both his and the owner of the unit's possessions. Mr M heard the applicant directing the others about what to take and what to leave. Mr M heard the applicant talking about leaving some stuff to make out that Mr M had done everything. The applicant came back to the shower a short time later and demanded money from him as well as firearms, as they had found some ammunition. Mr M denied that there were any firearms and said that the applicant had already taken all of his money. The applicant then grabbed him, dragged him downstairs and threw him on the ground.

  17. The applicant told Mr M that they were going to drive to pick up the applicant’s family. The female told the applicant to put a bag over Mr M’s head so he could not see her car. Mr M did not have a bag, so the applicant put a tablecloth over his head, covering his eyes, and walked him out to his car. Mr M was put in the back seat and the applicant again drove. Mr M now noticed that the car was full of electronic equipment from the unit, including some owned by his friend.

  18. The applicant stopped across from the Hunter Stadium at Lambton. A short time later, the female and male that Mr M had originally picked up at the accident got back into the car and the applicant started driving back to the unit. Mr M was still tied up.

  19. The female asked Mr M something and he told her he did not understand what was going on. She then yelled at him and said, “You’re fucking kidnapped. Wait the fuck or I’ll elbow you in the face.” The applicant kept asking where the blonde woman and the male had gone and Mr M said he did not know. The applicant then asked the female and the other male companion, and they seemed not to know either. The applicant kept saying to them that they had abandoned their post and that he had left his mobile phone at the unit. The applicant then drove around looking for the people who had left. The applicant drove to Adamstown train station where he made the girl get out and look for them at the station. They continued to drive around but were never found. After a while, the applicant drove them back to the unit and Mr M talked about them getting a trailer to take more of his and his friend’s possessions.

  20. At the unit the applicant told Mr M that he was going to take off the USB cable and to put his hands out to the side and to lay down on his front. Someone removed the cord and Mr M did as he was told. At this time, Mr M saw another male that he had not seen before. The applicant told Mr M that he was going to love what was going to be put into him. Mr M was then injected with what was described in the facts as “ice” but which the sentencing judge said appeared to be a mixture of methylamphetamine and other toxic and illicit drugs.

  21. The sentencing judge noted that although Mr M believed it to be the applicant who had injected him, the applicant was sentenced on the basis that the Crown could not prove beyond reasonable doubt that it was the applicant who did the injecting or whether it may have been done by a co-accused. In the circumstances the distinction is immaterial to the applicant’s culpability.

  22. Mr M felt the needle burn into his right arm. He felt a massive adrenaline rush and felt like his heart was going to explode. He did not move as they were injecting him. The applicant said, “Don’t move or it will hurt more,” or something to that effect.

  23. The applicant and others then pulled up Mr M, tied his wrists again behind his back with the cable and took him to the kitchen. Mr M told the applicant that the cable was too tight. The applicant and the others started arguing about killing Mr M in the back yard. Mr M believed that they were going to kill him. The applicant went over to him and demanded that he start the Harley Davidson motorcycle. Mr M told him that the cabling was too tight. The applicant picked up a pair of wire cutters and walked behind the victim.

  24. Mr M felt another kind of restraint being put on and pulled tight and then the original restraints were cut. In the process of changing the restraint, the applicant nicked and cut Mr M’s wrists.

  25. The applicant picked up Mr M, and marched him out to the back yard to start the motorcycle. He had to cut a padlock on the side gate because he did not have the key. The applicant cut Mr M’s wrist restraints. The bike was parked outside the gate. Mr M pretended he did not know how to start the bike and the applicant continued to threaten his life if he could not get it started. One of the co-accused then came out and pressed the starter, which started the bike. The applicant told Mr M not to call the police or he would be killed and also to wait 20 minutes before getting any help. Mr M pleaded with the applicant not to take the bike, to which the applicant replied, “I’ll bring it back if you give me $2,000.” Mr M said that he would. Mr M saw the applicant get onto the bike, put on a helmet and ride out of the driveway.

  26. When Mr M went back into the house there was no one left. He saw that his car had been stolen. He felt hazy from the effects of the drugs and started to panic. He was scared that the applicant and others would return to kill him and eventually he went to another address in New Lambton and rang the doorbell constantly until it was answered by that resident. By that time, he was hysterical and not making much sense. He had marks on his knees, blood on his arm and was very distressed. He eventually told that person that he had been held at gun and knifepoint all night. He also said that he had been injected with something and he told that person to call the police. He was at first reluctant to do that because of the threats that had been made to him and his family if he called police. Once he had calmed down, he allowed that person to call police.

  1. Police attended the unit and Mr M was taken to the Mater Hospital and examined. He was still, by that stage, extremely upset and distressed, and described the recent sustained traumatic abduction during which he claimed (which was of course true) to have been held down and injected with a drug. He was crying intermittently and looking around in an agitated manner and said that he felt paranoid about the possibility of further attacks. He had bruising to his knees and mild tenderness to his back. He stayed overnight in hospital for observation.

  2. At 9am on 27 August he was still anxious and complained of tenderness. His vital signs by that time were normal but he was still anxious and teary. The result of urine screening detected cannabinoids, amphetamines and benzodiazepines in his system, and other drugs.

  3. Police seized a number of physical items, took fingerprints and found the applicant’s DNA at the scene.

  4. At about 12.15am on 29 August police were patrolling in Kurri Kurri and observed the applicant driving in a motor vehicle. He was travelling about 90 kilometres per hour in a 60 kilometre per hour zone. There were no other passengers. The plates on the vehicle belonged to a vehicle with a different description and the applicant did not have permission to drive this vehicle. The applicant did not slow to the prevailing speed limit. As he turned into John Renshaw Drive, he reached speeds of no less than 140 kilometres per hour in a clearly signposted 90 kilometre per hour zone. Police continued their pursuit along John Renshaw Drive through a number of suburbs of outer Newcastle and reached speeds of no less than 160 kilometres per hour in a 100 kilometre per hour signposted zone area. Police continued their pursuit through roadworks, at which time the applicant appeared to lose traction and only then slowed significantly to about 70 kilometres per hour. The applicant travelled through to Hexham and along the Pacific Highway, also known as Maitland Road, at speeds of no less than 160 kilometres per hour in a clearly signposted 80 kilometre zone. He turned right into Wallsend Street at Sandgate and travelled at about 140 kilometres per hour in a 60 kilometre per hour zone. Police continued the pursuit through Shortland. As the applicant negotiated a left-hand bend, he again lost traction, crossed to the incorrect side of the road momentarily, before driving into Birmingham Gardens. As he entered Birmingham Gardens, he attempted to negotiate a right-hand bend, again lost traction and collided with the kerb on the corner. He continued up onto the footpath and collided then with the stone fence of the premises on that corner.

  5. The applicant got out of the vehicle and attempted to run into the driveway of premises but was caught up in a picket fence, where he was arrested. At that time he had, and indeed said he had, a knife in his pants and told police to be careful. As police were assisting the applicant to his feet, a meat cleaver came out of his right track pant leg and fell onto the footpath. A further knife was located on the floor of the driver's seat of the vehicle. A small sledgehammer was also found. Two masks were found on the back seat. One was inscribed “DTR”. Also in the vehicle were items belonging to Mr M and his friend.

  6. The applicant was taken to Waratah police station. He agreed to participate in an interview, replied “no comment” to most questions but falsely denied assaulting, detaining or threatening anyone and denied knowing Mr M. The CCTV footage was shown to him, where he agreed that the person alleged to be him looked strikingly similar, including the tattoos and clothing, and he further stated in further response to questions about that topic, “no comment”.

The offending on 18 August 2018

  1. On 18 August 2018 an unidentified male, not the applicant, armed with a knife, threatened the owner of a taxi. About four hours later on that same day the applicant drove that taxi to a service station in Shortland, took $19.67 worth of fuel put into the taxi and drove away without paying. He was again captured on CCTV footage, which also shows an unidentified person in the passenger seat of the taxi.

  2. On 21 August police found the taxi at the rear of a townhouse complex in Cooks Hill. Again DNA was found on the gearstick and steering wheel of the taxi and provided a partial profile. There was a mixed profile also found on the driver’s headrest where the applicant could not be excluded. The profile on the steering wheel and the major profile, however, matched the applicant.

  3. The applicant was interviewed about this after his arrest on 29 August, but declined to comment. On 19 June 2019 the applicant was again spoken to in custody about that matter and again declined to make any comment. He consented to a forensic procedure to provide his DNA.

Proposed Ground 1

  1. This proposed ground was as follows:

The sentencing remarks do not show how on a Plea of Guilty the 25% discount was taken into account in respect of each of the indicative sentences.

  1. The sentencing judge stated at [49] that the applicant had pleaded guilty in the Local Court “and will receive a 25 percent discount upon his sentence”. At the conclusion of her reasons, after stating that an aggregate sentence would be imposed, her Honour indicated the sentences that would have been imposed for the individual sentences, as reproduced in [6] above. In so doing, her Honour did not explicitly state that those indicative sentences incorporated a 25% discount, although there is nothing to suggest that the indicative sentences did not incorporate such a discount. Her Honour then pronounced the aggregate sentence of 13 years imprisonment with a non-parole period of 8 years.

  2. The applicant contended, by reference to Bao v R [2016] NSWCCA 16, that it was necessary for the 25% discount to be applied to the indicative sentences. As much is well settled. However, as reflected in the formulation of this ground, it was contended that the failure explicitly to state that when formulating the indicative sentences reflected error. It was said that the applicant was left in doubt as to whether the sentencing judge had complied with this aspect of sentencing principle.

  3. There is nothing in this proposed ground. First, there is no dispute that her Honour said that a 25% discount would be received, and there is nothing to indicate that her Honour departed from principle. It is for the applicant to make out error. A mere speculation that the sentencing judge might have committed error will not suffice.

  4. That is sufficient to resolve this ground, but there is more. First, immediately after her Honour’s oral remarks were given, she said “are there any issues with either the remarks or the terms”, and was told by counsel then appearing for the applicant that there were not.

  5. Secondly, the applicant’s case was not that the sentencing judge said that a 25% discount would be applied, but then forgot to do so. It was that the 25% was applied, but in a way which was inconsistent with Bao. That means that the applicant’s case was that the 13 years incorporated the 25% discount but the indicative sentences did not. That seems most unlikely. As the Court observed during the hearing, when the structure of the sentence is considered, it is tolerably plain that there is a link between the 13 years imposed and the individual offences, all of which took place as part of a continuous series of events over a short time period on the evening of 25/26 August 2018, save for the separate offending concerning the taxi, a week earlier. And indeed her Honour said at [104], when addressing totality, that “Sequences 1, 6, 10 and 11 all arise from the same incident and the sentence in respect of them, had I not been imposing an aggregate sentence, would have been highly concurrent, if not completely concurrent”, and that the sentences imposed for the offending relating to the taxi would be concurrent, and that “there will be some accumulation between those two sets of offending”. That tends to strengthen the inference that her Honour addressed the 25% discount in the conventional way. The applicant made no submission in response to what had been said by her Honour concerning totality, or the inferences which could be drawn from what was said.

  6. Thirdly, as was also pointed out during the hearing, the applicant’s approach leads to the implausible result that her Honour had relied on an undiscounted starting point of 17 years and 4 months. That is an unlikely starting point to comprehend the outcome of an instinctive synthesis in accordance with Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 of the various objective and subjective features present in the offending for which the applicant was sentenced.

  7. We would not grant leave to advance this proposed ground. But one further point should be added. The applicant maintained in his written submissions in support of this ground that the sentence was “excessive”. The submission was repeated orally, but it was not elaborated. It was not suggested that the sentence was manifestly excessive, which is to say that it should be inferred by its length that there had been some reviewable error of discretion when it was imposed. All that could have been conveyed was that within the range of sentences which were available in the proper exercise of the discretion by the sentencing judge, this particular sentence was on the high side. That submission does not advance the analysis.

Proposed Ground 2

  1. This proposed ground is as follows:

Her Honour appears to have failed to appropriately consider any psychiatric issues.

  1. The sentencing judge received evidence of the applicant’s serious psychiatric issues. That evidence informed the sentencing discretion in a number of ways, to which her Honour expressly had regard.

  2. The first was at [74]-[78] of her reasons which described the applicant’s diagnoses and the medication he was taking, but was critical of some of the statements made by him, in particular the statements concerning his “under-controlled anger” which in her Honour’s view were “a gross understatement”: at [88].

  3. Her Honour returned at [95] to the issue and noted that he had a diagnosis of schizophrenia and was on medication, and observed at [98] that if he were to return to the community, he would need substantial support having regard to, amongst other things, his mental health issues.

  4. Secondly, concerning general deterrence, her Honour accepted a submission made during the sentencing proceedings at [102]:

This is a case where general deterrence has a lesser role to play, lesser than punishment denunciation [of] the crimes and protection of the community, which all loom large. Where the offending is a result of a seeming inability to control violent behaviour and theft, brought about, at least in part, by the offender’s mental health issues, like offenders are unlikely to be deterred by heavy sentences.

  1. Finally, her Honour returned to the issue when making a finding of special circumstances, at [107] where the first of four matters to which her Honour referred was “the offender’s serious psychological issues”. The finding of special circumstances was highly favourable, resulting in a ratio between the non-parole period and the total sentence of 61.5%. That represents a lessening of the non-parole period of 1 year and 9 months (from 9 years and 9 months to 8 years) from the default provision under s 44(2B) of the Crimes (Sentencing Procedure) Act which applies in the absence of a finding of special circumstances.

  2. It may also be noted that the sentencing judge backdated the sentence to commence from the date of his arrest on 29 August 2018, notwithstanding that there were some 20 months remaining to be served on his sentence for earlier unrelated offending, which expired on 9 April 2020, although her Honour did not expressly link the decision to backdate the sentence to his psychiatric conditions.

  3. It is quite plain that the sentencing judge had regard to the applicant’s psychiatric issues, and in a number of ways which were favourable to the applicant. It was not suggested that any of the matters mentioned above reflected error.

  4. The applicant repeatedly maintained in oral submissions that the sentencing judge had not had “appropriate” regard to those issues. That was consistent with the way the ground is formulated, but is unhelpful, because it falls short of identifying appellable error. The applicant’s counsel was given every opportunity to characterise the form of error for which he contended. He was unable to do so, save for the contention that it was not readily apparent what use was made of the evidence of the applicant’s psychiatric illness.

  5. The submissions advanced in support of this proposed ground fall well short of establishing appellable error. There was no deficiency in the reasons given by her Honour, and there could be no basis for a complaint as to the weight which was given by her Honour to this evidence.

  6. Once again, we would not grant leave to appeal in respect of this proposed ground. To be quite clear about it, the reason we propose that there not be a grant of leave extending to proposed grounds 1 and 2 is that those grounds are so weak that they were, at best, only barely capable of being maintained in this Court.

Proposed Ground 3

  1. As formulated in the draft notice of appeal and the applicant’s written submissions, this ground was as follows:

The objective seriousness of each of the offences could not have been fully considered without the evidence of Mr Jones’ long history of sexual abuse.

  1. There was no evidence of any sexual abuse before the sentencing judge. This ground was accompanied by a suite of affidavit and documentary evidence. The Crown had flagged in its written submissions that it opposed the tender of most of that evidence insofar as it supported this ground, although it did not oppose the evidence of the steps taken between the imposition of sentence in March 2020 and the filing of a notice of appeal in August 2024. The Court indicated at the outset of the hearing that it proposed to reserve on the admissibility of the evidence to which objection was taken, and hear both sides in full both on the tender of that evidence and in elaboration of this proposed ground of appeal. There was no objection to that course.

The amendment to the proposed ground of appeal

  1. As formulated in the draft notice of appeal, proposed ground 3 patently is bad in law. The evidence of sexual abuse in Mr Jones’ youth does not bear on the objective seriousness of his offending. This is fundamental. So much was pointed out in writing by the Crown in advance of the hearing. The Crown’s written submissions referred to Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] where a unanimous High Court said:

Meaningful content cannot be given to the concept [of objective seriousness] by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.

  1. The present case is one very far removed from one in which the mental condition of an offender might have an impact on the objective seriousness of their offence (as to which see DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [94]-[96]). We had thought prior to the appeal being heard that proposed ground 3 reflected a serious and unfortunate error in drafting, and that counsel having been directed in terms to what the High Court had said would rapidly confirm that what was intended to be put was that the new evidence of sexual abuse sustained by the applicant as a boy altered the moral culpability of his offending.

  2. Ultimately it fell to the Court to direct counsel for the applicant to that paragraph of the reasons for judgment in Muldrock, and to point out that while it was easy to see how a history of sexual abuse as a child and adolescent might bear upon his moral culpability, it was difficult if not impossible to see how it might bear upon the objective seriousness of the offending.

  3. At the suggestion of members of the Court, the applicant’s counsel was asked if he wished to amend this proposed ground of appeal to:

The moral culpability of the applicant with respect to each of the offences could not have been fully considered without the evidence of Mr Jones’ long history of sexual abuse.

  1. Counsel applied to amend. Perhaps fortunately for the applicant, given the lateness of the application, the Crown did not oppose the amendment or alter its position with respect to not requiring the applicant for cross-examination.

The evidence in support of this ground

  1. The principal evidence sought to be relied on was the applicant’s own statement dated 17 November 2022 made to a Queensland firm of solicitors, the reports of two psychiatrists (Dr Foxcroft dated 7 November 2022 and Dr Bench dated 28 November 2023), affidavits sworn by the applicant on 7 and 21 January 2025, a substantial solicitor’s affidavit filed on 16 January 2025 explaining the steps taken between the imposition of sentence and the filing of a notice of appeal, and a further solicitor’s affidavit annexing a letter from the State of New South Wales dated 20 August 2024.

  2. The applicant deposed in his affidavit of 7 January 2025 that the statements he made to Drs Foxcroft and Bench were the truth, and that the statement he made to Little Lawyers on 17 November 2022 was entirely true.

  3. The statement of 17 November 2022 included material the substance of which had been before the sentencing judge. The applicant was born in November 1985. He said that as a young child he was exposed to much domestic violence, and was beaten by his father. He said his father was a Romani gypsy and the family were nomadic. On occasions when his father had left his wife, the department intervened. He was placed in foster care for around 3 months in 1997 and for the ensuing three years was in and out of placements with foster families and in the care of the Director-General. On 30 June 2000, aged 14, he was first admitted to custody in juvenile detention.

  4. Turning to the additional evidence that was adduced to sustain this ground, the applicant described four periods of time when he sustained sexual abuse between the ages of around 10 and 16.

  1. The first was when he was a student at Kendall Grange School in the mid 1990s, when he was aged around 10. He said that when he was well behaved, he was sent to the kitchen by a teacher so as to obtain a reward of a milkshake. He said that a brother in the kitchen would make the milkshake, but prior to receiving it, the brother would digitally rape him, make him touch his penis with his hands, force him to perform oral intercourse, and then anally rape him. He said that the brother told him that if he told anyone about the abuse he would have to stay longer at Kendall Grange and that he would tell his mother that he had been naughty. He said that because of his deep feelings of shame and embarrassment he had never told anyone about the abuse. He said that his anus hurt for an extended period of time, but that he never sought medical attention.

  2. The second occasion was when he was in Reiby Juvenile Justice Centre. He said that he had had penile vaginal and oral intercourse with a female officer, originally in a hospital, and then in his cell at the centre in the evenings, and once in the laundry. He said that after each incident, the officer would give him a couple of cigarettes.

  3. The third set of events overlapped with the second. The applicant said that a male juvenile justice officer abused him approximately once every fortnight. He said that he had seen him having sexual intercourse in the laundry and threatened to tell his mother. He said that on that occasion and many others, the officer “would then pull my pants down, digitally rape my anus, and then proceed to anally rape me”. After each incident, he would be given cigarettes “as bribery so I wouldn’t tell anyone”.

  1. The fourth occasion was a single incident at Frank Baxter Juvenile Justice Centre. He said he was anally raped in his cell by a male officer. He did not report the abuse.

  1. The applicant said that he disclosed the abuse by the female officer at Reiby to a friend (whom he identified), who had himself been sexually assaulted at that centre, and who continued to this day to be a good friend.

  2. Dr Foxcroft’s report contains a very similar history of childhood sexual abuse, which appears largely to have been derived from the same statement. The doctor expressed the opinions that:

Mr Jones developed post-traumatic stress disorder because of his childhood by way of physical and emotional abuse at the hands of his biological father and then catastrophic sexual abuse whilst in the Kendall Grange Boys’ Home, the Reiby Juvenile Justice Centre and the Frank Baxter Juvenile Justice Centre. Mr Jones has experienced severe and catastrophic psychosocial stressor which would cause a severe reaction in the average person. He was a small child at the time, reacted with feelings of helplessness and horror at the time and then describes symptoms of flashbacks, intrusive thoughts, nightmares and re-experiencing phenomena which have been present ever since. He reports nightmares most nights, flashbacks during the day, during sexual activity and in many other situations including many social situations and Mr Jones reports irritable moods, angry outbursts and anxiety symptoms. He fills criteria A and B for post-traumatic stress disorder (PTSD).

Mr Jones describes symptoms of emotional numbing. He reports commencing illicit substances and initially alcohol, then cannabis and then amphetamines and then narcotics. He said his substance use and cannabis use commenced around age 11 or 12 when he commenced high school and has persisted ever since with a progressive escalation in his symptoms. He reports using the drugs to “block out the pain” and to get sleep and to block out the nightmares. He said it is very hard to achieve this.

  1. The report addresses other aspects of the applicant’s deprived background, to which we shall return. It concludes with the following opinion:

OPINION: This man has developed a clinically severe post-traumatic stress disorder, secondary polysubstance use disorder, secondary chronic paranoid drug-induced schizophrenia and an antisocial personality disorder as a consequence of the history of severe catastrophic childhood traumas including physical abuse at the hands of his father, and severe and sustained sexual assaults and abuse at the Kendall Grange Boys’ Home and then to a lesser extent the assaults which occurred at the Reiby Juvenile Justice Centre and Frank Baxter Juvenile Justice Centre when he was a minor whilst under the care of the state of New South Wales. Prior to being made a ward of state he was subjected to early trauma at the hands of his father by way of physical violence and had been involved in and had witnessed the domestic violence towards his mother by his father.

He had experienced anxiety and did have some evidence of early post-traumatic stress disorder arising from these experiences although the content of his nightmares, flashbacks and other symptoms of PTSD is by far dominated by the history of the sexual assaults that occurred at the Kendall Grange Boys’ Home and also the Juvenile Justice Centres.

  1. Dr Bench was briefed with most of the materials available to the sentencing judge, with the sentencing remarks, and with Dr Foxcroft’s report. His report includes the following.

2. Noting the absence of significant childhood and adolescent abuse history in the psychologist's report prepared for sentencing and its inclusion in the later report of Dr Foxcroft, please provide an opinion as to why the childhood and adolescent abuse history was not provided by Mr Jones to the psychologist who provided a report for the sentencing court.

Rather than an opinion, I can only state what Mr Jones informed me. He reported he was sexually assaulted on a repeated basis around age eight to nine whilst at Kendall Grange Boys Home. He reported dating back to adolescence, he has avoided any triggers that remind him of the trauma. Most notably, he has been using large quantities of drugs and alcohol dating back to adolescence in order to avoid being triggered back to the trauma. He noted in this context, he had never spoken to anyone about the sexual abuse as a child or adolescent due to his significant shame and embarrassment. With regard to the sexual abuse it is noted such is very typical with individuals frequently failing to report sexual abuse (or any other trauma) out of embarrassment and shame. The initial report prepared by Liz Duffy was completed over three years ago. It is likely the appellant was still using significant drugs at the time and in this context was not wholly cognisant of his issues and the like. Moreover, he was engaging in a high degree of avoidance. Since that report was completed, he reported having maintained abstinence from all illicit substances. Such has likely allowed a significant clearing of his memory and cognition. It may well have also allowed him to come to terms with the abuse such that he has been able to report it for the first time in his life.

…

9. Please provide an opinion about whether Mr Jones’ history of childhood and adolescent abuse contributed to his criminal offending history.

The appellant was exposed to a lot of violence throughout his childhood and adolescence. Moreover, he was repeatedly and seriously sexually assaulted on a repeated basis. There is clear evidence that individuals exposed to violence, substance abuse or sexual abuse through childhood and adolescence are at increased risk of various adverse outcomes, including with regard to academic failure, unemployment, negative physical health outcomes, psychiatric illnesses, substance abuse, aggression and anxiety. Moreover, individuals with such trauma are at greatly increased rates of mistrust of authority. In this context, it is the evaluator’s opinion the appellant’s traumatic childhood and adolescence has likely had a contributing impact on the pattern of offending behaviour throughout his life.

  1. The applicant also relied on a letter to him signed by the “Director Joint Child Protection Response Program” in the Department of Communities and Justice dated 20 August 2024. The author says that she apologises sincerely and unreservedly for the abuse described by the applicant as a young person in the State’s care. The author says she writes on behalf of the State of New South Wales. The applicant also relies on the receipt of payment of $133,000 as a result of the abuse suffered as a child.

The Crown’s attitude to the additional evidence

  1. The Crown made two submissions in response to the applicant’s affidavit and the reports of the two psychiatrists:

  1. the Crown submitted that the evidence was not “fresh” evidence, because by reasonable diligence it could have been placed before the sentencing judge, and

  2. the Crown submitted that there was no miscarriage of justice because there was no basis to conclude that the additional material would have made any substantial difference to the exercise of the sentencing discretion.

  1. In relation to the first objection, it was said that “[a] background of sexual abuse as a child would have been well known to the applicant at the time of sentence, but was not referred to in the evidence given and tendered by him at that time”, and that there was no explanation from him of why this was not done, nor from the barrister or solicitor who then appeared for him. The Crown referred to question 2 asked of Dr Bench, and said that “Dr Bench did not provide an opinion in response, but relayed that the applicant told him that he avoided any triggers that reminded him of the trauma, and additionally, that the applicant had never spoken to anyone about the sexual abuse as a child or adolescent due to significant shame and embarrassment”.

Consideration of Crown’s first basis of objection

  1. The entirety of question 2 and Dr Bench’s answer to it has been reproduced above. In part it records the account given by the applicant, which was the subject of the applicant’s further testimonial evidence that what he told Dr Bench was true. But in part it does more than merely recount the explanation provided by the applicant. It goes on to say that shame and embarrassment as reported by the applicant “is very typical with individuals frequently failing to report sexual abuse (or any other trauma) out of embarrassment and shame”. Dr Bench also hypothesised that the applicant had ceased illicit drug use for some years, which “has likely allowed a significant clearing of his memory and cognition”, and “may well [have] allowed him to come to terms with the abuse” so as to be able to report it.

  2. Importantly, the Crown did not challenge the credibility or reliability of any aspect of the applicant’s evidence. That was an important forensic decision, where the applicant had a criminal history which included a conviction for obtaining money by deception, where he had been regarded as unreliable by the sentencing judge, where he had used illicit drugs for much of his life, and suffers from serious mental illness. The Crown confirmed in terms that if the additional evidence were admitted, it was to be taken at “full value”. The Crown did not challenge any of the opinions expressed by Dr Bench.

  3. In those circumstances, we are not persuaded that the evidence could by reasonable diligence have been placed before the primary judge. It is true that there was no evidence from the legal practitioners who appeared at the sentencing proceedings, and no evidence of how precisely the applicant had come to disclose the abuse to the Queensland firm of solicitors who took the statement from him. However, in circumstances where there was no challenge to the evidence of the applicant and Dr Bench reproduced above, we do not think anything turns on that. Delay in making a complaint of childhood abuse is not uncommon, and indeed legislation such as s 294 of the Criminal Procedure Act recognises that complainants in cases of sexual offending may make no complaint for many years. The unchallenged lay evidence was that the applicant felt great shame and embarrassment about the abuse, and the unchallenged expert evidence is that at the time of sentencing, he was suffering from the effects of illicit drugs and engaging in a great deal of avoidance.

  4. That is to say, we cannot accept that the mere fact that the claimed abuse happened to the applicant, who therefore by definition knew of it, is sufficient to dispose of the question whether the evidence of abuse was available with reasonable diligence. There are two other matters which strengthen that conclusion.

  5. The first is that this was a case where the lawyers acting for the applicant at the sentencing hearing took steps to advance a case which would engage the principles in Bugmy v R (2013) 249 CLR 571; [2013] HCA 37 based on his unsettled and violent early family life, with early teenage years spent in care. Although there was no evidence of this, it seems improbable that the lawyers would not have sought instructions about whether the physical maltreatment he had sustained at the hands of his father was repeated when he was in foster care or in the care of the State.

  6. Secondly, he gave the following evidence in chief in the sentencing proceedings:

Q. And how long were you in foster care?

A. A few years.

Q. And what was your experience like in foster care?

A. I got hit around and stuff.

Q. What does “and stuff” mean?

A. Just not treated very nice.

Q. And who did that to you?

A. The husband of the lady I was in care.

Q. And as a result, did you leave foster care?

A. Yes.

  1. Bearing in mind that evidence, and the evidence in this Court, we would infer that the lawyers who had formerly acted for him had sought instructions about his treatment after he had left the family home, and were not told of any sexual abuse.

Consideration of Crown’s second basis of objection

  1. Nor do we accept the second submission advanced by the Crown. The Crown referred to the considerable body of material before the sentencing judge concerning the subjective circumstances of the applicant, including his mental health issues, deprived childhood, unstable family background and involvement in crime as a young person that plagued the applicant. It was said that:

Given the extent of the subjective material already before the sentencing judge the question posed ‘is whether the evidence “may have had a real bearing on the exercise of the sentencing discretion”’ [referring to Barnes v R [2022] NSWCCA 140 at [43]]. For the reasons set out, it would not.

  1. There are two reasons why we cannot accept that submission.

  2. The first is that on the account on which the applicant was sentenced, he had had a distressing early childhood, including being beaten, witnessing domestic violence and seeing his father repeatedly walk away from the home for periods of time. But after being taken into the care of the State, while there was undeveloped evidence that he had been treated harshly while in foster care, there was no suggestion of any form of sexual abuse let alone sustained sexual abuse over five or six years at the hands of four perpetrators.

  3. The evidence which has now been led on appeal contains accounts of sexual abuse of the most severe kind extending throughout the applicant’s late childhood and adolescence. The quality of the maltreatment is different and worse, and it extended over a much longer timeframe. We would confidently conclude that it “may have had a real bearing on the exercise of the sentencing discretion”. The test of “may have had a real bearing” is not an especially demanding one.

  4. Secondly, decisions are authority for propositions of law, not of fact. However, the distinction between a childhood environment marred by violence, and a childhood environment marred by both violence and sexual abuse, was clearly drawn by this Court in Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207, where Bell P said at [11]:

An environment of “childhood deprivation” in which “abuse of alcohol and alcohol-fuelled violence” are endemic (the circumstances which were addressed in Bugmy) may be conceptually different from an environment in which a child has been subject to a traumatic event such as an actual or attempted sexual assault or other physical or psychological abuse. There may also be a significant conceptual distinction between circumstances of sustained sexual or other abuse of a child and a single instance of sexual abuse or attempted sexual abuse.

  1. Further, the recent decision of this Court in Elali v R [2025] NSWCCA 9 at [136]-[137] rejected the same submission advanced by the Crown in a comparable case, finding that there was a connection between the abuse and the offending. In the present case, the Court has the benefit of the unchallenged evidence of Dr Bench that the history of childhood and adolescent abuse likely had a causal connection on the offending behaviour in the applicant’s later life.

  2. Applying the same reasoning, we would reject the Crown’s submission that the additional evidence could not have had a material impact upon the exercise of the sentencing discretion.

The additional affidavit evidence should be admitted

  1. It appeared to be common ground when the appeal was argued that if the Court were satisfied that rejection of the evidence would lead to a miscarriage of justice, it should be admitted. That accords with what was said in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]:

As a general rule, the appellate court’s assessment of whether some other sentence is warranted in law is made on the material before the sentencing court and any relevant evidence of the offender's progress towards rehabilitation in the period since the sentence hearing. For the purposes of that assessment, an offender is not permitted to run a new and different case. This general rule does not deny that an appellate court has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice.

  1. In Shortland v R [2024] NSWCCA 174, this Court said at [45]-[49] that irrespective of whether there was any incompetence of counsel, a miscarriage of justice may arise where “material evidence was available and relevant to sentence” but the applicant was “deprived of the opportunity to have that material considered in mitigation of sentence”: at [46]. That reasoning was applied very recently in Elali v R at [131].

  2. We have rejected the submissions advanced by the Crown in opposition to the additional evidence. We have concluded that the evidence may have had a real bearing on the exercise of the sentencing discretion. It provides a further reason to diminish the significance of general deterrence, and it reduces the moral culpability of a man who, when young having been removed from a dysfunctional family, was repeatedly placed in further circumstances where he was abused by the very people in whom he should have been able to trust.

  3. The approach adopted by the parties eschewed a close examination of the decisions in this area, many of which were considered by Hamill J in Barnes v R [2022] NSWCCA 140; (2022) 299 A Crim R 483, as well as by Simpson J in Khoury v R [2011] NSWCCA 118; 209 A Crim R 509. That may well have been a consequence of the way in which the argument developed. To be fair to the Crown, until the applicant’s oral application to amend during the course of the appeal, the Crown was faced with a contention confined to the proposition that the evidence of childhood sexual abuse affected the assessment of objective seriousness of the offending, which plainly did not call for any extended examination of the authorities in this area. It is not entirely clear to us that the approach adopted in the most recent decisions, including Barnes and Shortland and Elali, is wholly consistent with earlier authorities in this area, which may adopt a slightly stricter approach. But in the absence of anything like full submissions on the point from either side, it is inappropriate to review the decisions in this area.

  4. The result is that there should be an extension of time, a grant of leave confined to ground 3 as sought to be amended during the hearing of the appeal, and the appeal should be allowed on that ground.

The apology and payment of monetary redress

  1. It follows from what has been said in relation to the affidavit evidence that nothing turns on the apology on behalf of the State, or the payment of money to the applicant by way of redress. Nonetheless, we should address the applicant’s submission that both were evidence that the applicant’s claim had been accepted under a redress scheme, and thus supported his claims.

  2. As presently advised, we are of the view that the fact that the applicant’s claims of childhood sexual abuse have been accepted under the redress scheme and have led to a payment of redress and an unequivocal apology is not an admission of anything relevant to any issue in this appeal.

  3. The following was not the subject of submissions, because the Court indicated that the best evidence of the claimed sexual abuse was the direct testimonial evidence of the applicant, who was not required for cross-examination, and whose evidence the Crown confirmed should be taken at face value. But acceptance of an application for redress does not involve a finding that the claimed abuse occurred. Nor does it involve a finding that more probably than not it occurred. It involves only the conclusion that it was reasonably likely that the person experienced abuse as a child. That is because of federal law, which provides that if it is considered that “there is a reasonable likelihood that the person is eligible for redress”, then an application under the scheme must be approved: National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (Cth), s 29(2).

  1. Further, it seems likely that the apology written on behalf of the State is a “direct personal response” under the National Redress Scheme pursuant to s 16(1)(c). A participant in a redress scheme is obliged to make a direct personal response if requested to do so: s 54(1). It follows that despite its language, the letter cannot be an admission that the abuse happened; it demonstrates only that an application was made under the scheme which sought a direct personal response, and that some person charged with administering the scheme determined that there was a reasonable likelihood that the claims made by the applicant occurred. We do not see how that assists the applicant in making out on the balance of probabilities a matter relied on in his favour, in accordance with R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]-[28] and Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64]-[66].

Resentencing

  1. It is necessary to resentence afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. In light of the success of ground 3 (as amended), that will occur on the basis that the applicant suffered a deprived background over the entirety of this youth, extending not merely to violence and the exposure to violence when as a young child he was in the care of his mother, but also sustained sexual abuse of the most serious kind on the part of four perpetrators after he was no longer in the care of his family. That different background affects the process of imposing sentence, but, in the facts of this case, not especially greatly. All cases turn on their own facts. However, the conclusion that we have reached concerning the effect of the additional evidence accords with what Ormiston JA had said in R v AWF (2000) 2 VR 1; [2000] VSCA 172 at [6]:

One should be careful, however, not to assume that abuse of that kind will automatically lead to some reduction of sentence… In general it is not so much the cause that is important: rather it is the consequences which flow from those earlier events. If there is evidence to link them to a condition or state of mind which is a proper basis for viewing the criminality of an offender as less serious and for saying that specific or general deterrence (or both) should have a smaller part to play in the overall sentencing process, then that condition will have a greater relevance and significance. [footnotes omitted]

That paragraph was repeated by Bell P, with implicit approval, in Nasrallah at [12]. Bell P also referred to what had been said by McCallum J with the agreement of Hoeben CJ at CL and Harrison J in JL v R [2014] NSWCCA 130 at [38]–[39] to the same effect. Her Honour there had also emphasised that sexual abuse did not automatically lead to a lesser sentence, and that the important factor was the consequences flowing from childhood events, concluding on the evidence in that case that the childhood abuse suffered by the applicant should be given only relatively minor weight in all the circumstances: at [49].

  1. The offending has been described above. The applicant has had a significantly deprived background as a child and adolescent. He began drinking and taking illicit drugs aged 14, and that continued including for periods of time while in custody. Most of his adult life has been spent in custody.

  2. Dealing with his offending as an adult, the custodial history shows a saddening pattern of re-offending shortly after release after the expiration of, or the grant of parole for, ever-increasing sentences. The most serious offending included assault occasioning actual bodily harm in February 2006 leading to the sentence of imprisonment for 3 months imposed by the Newcastle Local Court, common assault on 20 December 2007 leading to a sentence of 9 months imprisonment imposed by the Local Court, intimidating a police officer in the execution of his duty on 31 January 2008 leading to an 18 month sentence imposed by the Local Court. On 3 March 2009 the applicant committed firearms offences leading to a sentence of 5 years imprisonment. The applicant committed various drug supply offences in 2015, and had been released on parole while serving his sentence for firearms offences when the current offending took place.

  3. The periods when the applicant was not in custody over the last twenty years are:

  1. some 10 months between 3 April 2005 – 9 February 2006;

  2. some 3 months between 8 May 2006 – 30 August 2006;

  3. some 5 months between 29 August 2007 and 31 January 2008;

  4. 1 month after being granted parole on 6 February 2009 until 3 March 2009;

  5. almost 4 months between 19 December 2014 until 10 April 2015;

  6. some two weeks after being granted parole on 18 May 2016 until 6 June 2016, and

  7. finally the six weeks between 18 July 2018 and his arrest on the charges for the offending giving rise to the current appeal 6 weeks later on 29 August 2018.

  1. From the age of 13 to 21 he was in an intimate relationship, which the applicant described as “toxic” and which was marred by shared drug use and verbal and physical violence. There are two children from that relationship.

  2. The applicant became a member of the Nomads outlaw motorcycle club. Aged 23 he had shot and wounded a member of the Rebels outlaw motorcycle club leading to his imprisonment between around 2009 and 2014. He left the Nomads in around 2011, but operated as a dealer in methylamphetamine, and founded a gang known as “DTR” or “Down to Ride”. The letters “DTR” are tattooed under his right eye.

  3. In addition to the applicant’s diagnosis of schizophrenia, his taking of medication, his participation in addiction programs while in custody, and his claim that he has not consumed illicit substances for several years, there are some other factors weighing in favour of his prospects of rehabilitation. In terms of social connections and family support, the applicant says that his connection with his children has recently improved, and that he speaks with them, as well as his mother and sisters, daily. He describes this family support as being available to him “[f]or the first time in a long time”. He also says he has the support of his long-term partner and that they plan to get married upon his release.

  4. In terms of employment, the applicant says that he hopes to start a concreting business upon his release and to that end, he plans to complete a Certificate II in concreting through TAFE New South Wales. The applicant points to the compensation payment of $133,000 that he received through the redress scheme as providing the means by which he can start that business. He says that he will also use that money to fund stable living arrangements, a motor vehicle, and clothing and shoes, and notes that this is the first time that he has the means to live in a stable environment. The applicant has been employed while in custody and has signed up for courses in custody to further these ends. Finally, in addition to his medication, the applicant is also seeing a mental health support person once per month.

  5. It may be acknowledged that general deterrence had a lesser role to play in sentencing the applicant. The sentencing judge had regard to the applicant’s disadvantaged background, including physical abuse by the partner of his carer. However, in light of the additional evidence as to sexual abuse, the significance of general deterrence is further diminished.

  6. On the unchallenged evidence in this Court, the applicant’s moral culpability for his offending is somewhat less than found by the sentencing judge, with the result that less weight should be given to general deterrence, retribution and denunciation. Nonetheless, the offending was extremely serious, and was committed shortly after being released subject to conditional liberty. His prospects of rehabilitation and re-offending must still be treated as guarded.

  7. Most recently while in custody, the applicant had been found guilty of refusing to provide urine samples for drug testing on 18 and 23 September 2024. The applicant said that his medication made it difficult for him to pass urine. The third most recent prison infringement occurred three years earlier, in August 2021, which was a sewing machine needle hidden in his cubicle.

  8. To his credit, the applicant has engaged in programs within the correctional centre to address his addiction. He is being treated daily with Seroquel, and receives fortnightly injections for his schizophrenia, together with a monthly Buvidal injection to assist with his drug dependency. He says that he has not consumed illicit substances for several years.

  9. The most recent history provides a somewhat more favourable basis on which to assess his prospects of rehabilitation. The sentencing judge said that his prospects were “extremely guarded”, despite referring to his diagnosis of schizophrenia and the medication which by the time of sentence he had been taking as a matter in his favour. The evidence adduced for the purpose of resentence entitles a somewhat less pessimistic view to be taken of his prospects for rehabilitation. That said, in light of the serious offending which has rapidly recurred on every occasion in the last two decades after the applicant has been released from prison, it would be unduly optimistic not to consider that there was a real chance that he will once again reoffend.

  10. An aggregate sentence is appropriate. This Court’s sentence should follow the structure of the sentence imposed by the sentencing judge, with very substantial notional concurrency for the offending on 25/26 August 2018, with some accumulation on the less serious offending on 18 August 2018. There is no reason to depart from the decision to back-date the commencement of the sentence to 29 August 2018, the time of his arrest. That represents a significant amelioration, because the sentences for firearms offending committed years earlier still had some 20 months to run, during which there was (in light of the most recent offending) negligible prospects of a grant of parole.

  11. The following sentences, each of which incorporates a 25% discount, are indicated:

Specially aggravated detain in company with an intent to commit a serious indictable offence, while occasioning actual bodily harm: 11 years and 3 months imprisonment;

Theft of Harley Davidson motorcycle: 18 months imprisonment;

Demanding property with menaces with intent to steal the motorcycle: 7½ years imprisonment;

Demanding property in company with menaces to steal the cash and firearms: 7½ years imprisonment;

Driving conveyance without the consent of the owner and with the obtaining petrol by deception on the Form 1, imprisonment for 9 months;

In respect of the related matters, imprisonment for a term of 1 year and 3 months for the police pursuit. The other matters are dealt with under s 10A of the Crimes (Sentencing Procedure Act) and involve no additional penalty.

  1. The aggregate sentence will be 12 years imprisonment, with a non-parole period of 7 years and 4 months. That represents a ratio which is marginally less than the ratio applied by the sentencing judge consequent upon her finding of special circumstances. That sentence should be backdated so as to commence on 29 August 2018. It will expire on 28 August 2030. The applicant will first be eligible for release to parole on the expiration of the non-parole period on 27 December 2025.

  2. We propose the following orders:

  1. Extend the time within which to appeal to 14 February 2025.

  2. Refuse leave to appeal in respect of proposed grounds 1 and 2.

  3. Grant leave to appeal in respect of proposed ground 3 as amended on 14 February 2025.

  4. Appeal allowed.

  5. Quash the sentence imposed by the District Court on 6 March 2020, and in lieu thereof impose an aggregate sentence of 12 years imprisonment commencing on 29 August 2018 and expiring on 28 August 2030, with a non-parole period of 7 years and 4 months, commencing on 29 August 2018 and expiring on 28 December 2025. The applicant will first be eligible for release to parole on the expiration of the non-parole period on 28 December 2025.

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Decision last updated: 05 March 2025

Most Recent Citation
Cases Citing This Decision

1

Environment Protection Authority v Cadia Holdings Pty Limited [2025] NSWLEC 27
Cases Cited

19

Statutory Material Cited

5

Bao v R [2016] NSWCCA 16
Barnes v R [2022] NSWCCA 140
Betts v The Queen [2016] HCA 25