Kliendienst v R

[2020] NSWCCA 98

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Kliendienst v R [2020] NSWCCA 98
Hearing dates:	16 March 2020
Date of orders:	20 May 2020
Decision date:	20 May 2020
Before:	Simpson AJA at [1] Rothman J at [2] N Adams J at [3]
Decision:	(1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentence imposed on the applicant in the Port Macquarie District Court on 22 January 2019 is quashed. (4) In lieu thereof, the applicant is sentenced to an aggregate sentence of 3 years and 9 months to commence on 26 April 2018 and expire on 25 January 2022 and a non-parole period of 2 years and 1 month to commence on 26 April 2018 and expire on 25 May 2020. (5) Pursuant to s 53A(4) of the Crimes (Sentencing Act Procedure) Act 1999 (NSW) the indicative sentences are: Count 1: 18 months’ imprisonment. Count 2: 3 years’ imprisonment with a non-parole period of 2 years.
Catchwords:	CRIME – appeals – appeal against sentence – using offensive instrument with intent – reckless wounding – reference to R v Way – whether sentencing principles applied erroneously – applicant’s moral culpability – Bugmy factors – notional accumulation – whether failure to provide adequate reasons
Legislation Cited:	Crimes Act 1900 (NSW), s 27, s 33(1)(a), s 33B(1)(a) Crimes (Sentencing Act Procedure) Act 1999 (NSW), s 44(2) Criminal Appeal Act 1912 (NSW), s 6(3)
Cases Cited:	Berryman v R [2017] NSWCCA 297 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Burgess v R [2019] NSWCCA 13 Cahyadi v R [2007] NSWCCA 1 Campbell v R [2018] NSWCCA 17 Chaouk v R [2017] NSWCCA 295 Griffin v R [2018] NSWCCA 259 House v The King (1936) 55 CLR 499; [1936] HCA 40 JM v R [2014] NSWCCA 297 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Mifsud v Campbell (1991) 21 NSWLR 725 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 Osborne v R [2015] NSWCCA 260 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Rae [2013] NSWCCA 9 R v Way (2004) 60 NSWLR 16; [2004] NSWCCA 131 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 725; Horvath v R [2019] NSWCCA 285 Taitoko v R [2020] NSWCCA 43 Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 Tuite v R [2018] NSWCCA 175 Vaughan v R [2020] NSWCCA 3 ZA v R [2017] NSWCCA 132 Zreika v R (2012) 223 A Crim R 460
Category:	Principal judgment
Parties:	Orey Thomas Kliendienst (Applicant) Regina (Respondent)
Representation:	Counsel: T Quilter (Applicant) E Wilkins SC (Respondent)   Solicitors: Legal Aid Commission of NSW (Applicant) NSW Solicitor for Public Prosecutions (Respondent)
File Number(s):	2018/00132001
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court Date of Decision: 20 June 2019 Before: Robison DCJ File Number(s): 2018/00132001

Judgment

1. SIMPSON AJA: I agree with N Adams J.

2. ROTHMAN J: I agree with the orders proposed by N Adams J and generally with her Honour’s reasons therefor.

3. N ADAMS J: The applicant seeks leave to appeal against the aggregate sentence imposed on him on 20 June 2019 by Judge Robison in Port Macquarie District Court. The applicant “glassed” the victim at a hotel in Wingham on Anzac Day in 2018. He pleaded guilty to two offences arising out of this assault: using an offensive instrument with intent to commit an indictable offence (assault occasioning actual bodily harm) contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW) (maximum penalty 12 years’ imprisonment) and reckless wounding, contrary to s 35(4) of the Crimes Act (maximum penalty 7 years’ imprisonment, standard non-parole period (“SNPP”) 3 years’ imprisonment).

4. There is a degree of overlap in the criminality as between the two offences in that the “offensive weapon” the basis of the first count was the schooner glass the applicant struck the victim with which caused the wound the subject of the second count.

5. Judge Robison imposed an aggregate sentence of imprisonment of 4 years, with a non-parole period of 2 years and 3 months. The indicative sentences were 1 year and 10 months imprisonment for the use of the schooner glass and 3 years and 2 months imprisonment with a non-parole period of 2 years for the reckless wounding. The applicant’s non-parole period expires on 25 July 2020.

6. The applicant relies on three grounds of appeal:

1. Ground One:   The sentencing judge erred by applying the principles set out in R v Way (2004) 60 NSWLR 16; [2004] NSWCCA 131 (“Way”) rather than those set out in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39.

2. Ground Two:    The sentencing judge failed to make a proper assessment of the applicant’s moral culpability in light of his difficult and violent upbringing.

3. Ground Three:    The sentencing judge erred in his approach to the issue of notional accumulation, or, alternatively, failed to provide proper reasons for his approach.

Factual background

7. Agreed facts were tendered and can be summarised as follows.

8. The applicant and the victim had an acrimonious relationship at the time of the offences. They both resided in Wingham and had previously been friends. That ended in October 2014 when the applicant learned that the victim was having sexual intercourse with the applicant’s partner. Both the applicant’s relationship and his friendship with the victim ended as a result.

9. The applicant subsequently threatened the victim on a number of occasions either by Facebook or by attending his home. On 16 January 2015, the applicant damaged the victim’s car. The applicant also attended the victim’s workplace, attempted to have the victim’s employment terminated and threatened the victim in front of his children. During this time the applicant formed a new relationship and, as at 25 April 2018, had a 12-week-old baby.

10. On 25 April 2018, the applicant was drinking at the Australian Hotel in Wingham. He was asked to leave the premises after being observed urinating from the balcony. As he was being escorted out of the hotel through the beer garden, he saw the victim and began to yell at him. The victim responded by saying, “[l]ook Orey, that happened a long time ago. I’m sorry, I thought you would be over it by now. You’ve got a Missus and a kid.” The applicant then approached the victim and punched him in the face with his left fist. He then used his right hand to hit the victim over the head with a schooner glass. The applicant then left the hotel.

11. The strike to the victim’s head with the schooner glass resulted in a 7-9 centimetre laceration on the back of the victim’s head and a 3-4 centimetre laceration to the left side of his head. This required 20-23 stitches and left a permanent scar.

12. On 26 April 2018, the applicant attended Gunnedah Police Station and handed himself in to police.

Proceedings on sentence

13. The evidence before the sentencing judge comprised a Sentencing Assessment Report prepared by Jeff Mckenna from the Kempsey Community Corrections Office, a psychological report prepared by Megan Godbee, a letter from the applicant and the applicant’s criminal history.

14. The applicant is 33 years old and grew up in Wingham as one of seven children. During childhood he witnessed frequent domestic violence. His father would be violent towards his mother resulting in the applicant and his brothers running to their car with their mother in order to escape. The applicant’s father struck him with his fists as well as with objects such as a kettle cord. The applicant’s father would also encourage the children to physically fight each other. Although the applicant’s father spent periods of imprisonment in relation to violence committed outside the home (and supplying drugs), the applicant’s mother made no complaint about the violence inflicted on her and the family, thus, he was never dealt with for any of this domestic violence.

15. The applicant’s father abused alcohol, cannabis and methamphetamine. He was primarily supported by the Disability Support Pension as he had been diagnosed with schizophrenia. His father was prone to sudden and unpredictable anger. The applicant told Ms Godbee that if his father made a sudden movement the applicant would flinch thinking he was about to be hit for no reason. His father would say things to him the effect of which were that the applicant was a “waste of a good root”. The applicant’s father died four years before the applicant was sentenced from a lung infection related to Legionnaires disease.

16. The applicant was expelled from one school in Year 3 for being uncontrollable. His teachers did not pick up on the fact that by the time he left primary school in Year 6 he was still unable to read or write. He finally left school in Year 9. At age 13 he began smoking cannabis and at age 14 he began drinking alcohol.

17. After leaving school, the applicant worked on railways and cattle stations. He has always been seasonally employed. He was working for a building company at the time of his arrest in 2018. He had a five-year relationship with the woman who became involved with the victim. After this relationship ended, the applicant met his current partner. The two have a daughter, born 12 weeks before his arrest.

18. The applicant had previous convictions for assault: in 2006, he was placed on a s 9 bond for 18 months for assaulting police officers and damaging property. He was conditioned to accept supervision and counselling for his anger management and alcohol abuse. In 2007, he was fined for offensive conduct and failing to quit licensed premises. He was fined again in 2008 for failing to leave premises he was excluded from. In 2009, a suspended sentence of 7 months was imposed for assaulting police officers and damaging property. Again, he was required to obey all reasonable directions for, inter alia, alcohol rehabilitation. He was fined in 2011 for behaving in an offensive manner and fined again in 2015 for damaging property and common assault.

19. The applicant gave evidence at his proceedings on sentence and expressed remorse for what he had done and empathy for the victim.

20. The psychologist’s evidence was that the applicant had a “complex mental health history” including symptoms of Attention Deficit Hyperactive Disorder (“ADHD”), Autism Spectrum Disorder (“ASD”), drug induced psychosis, depression, anxiety and post-traumatic stress. One of his brothers has been diagnosed with schizophrenia whilst two others have been diagnosed with ASD. Many of his brothers also had problems with drugs and violence.

21. Ms Godbee observed that the applicant had “disrupted attachment to an unsafe caregiver”. During his childhood he experienced a trauma response to his father’s violence. He was “hypervigilant” to potential threat and used to experience intrusive memories of the violence. She observed:

“..[the applicant] reflected that his childhood experiences impacted his development into adulthood, and this suggests appropriate insight. Specifically [the applicant] endorsed some ongoing indicators of a trauma response such as difficulties trusting others, reckless behaviours (such as substance abuse) emotional dysregulation (such as suicide ideation) and difficulties with anger (as part of an exaggerated “fight or flight” responses).

Overall, [the applicant]’s account of his mental health suggests that he is currently struggling with: ruminative worry that impacts his sleep; ongoing paranoid thoughts; social difficulties potentially related to ASD and paranoia; and anger difficulties, likely to be associated with his exposure to violence and trauma in his early life.”

22. Relevantly to the first ground of appeal, the Crown provided written submissions on sentence which included the following at [7]:

“In assessing objective seriousness of the offending, the Court will be mindful of the legislative guideposts and the maximum penalties available. The maximum penalty can be viewed as an expression of the legislative intention or reflection of the public perception of the seriousness of the crime: R v Way (2004) 60 NSWLR 168.”

Remarks on sentence

23. The applicant was sentenced on 20 June 2019.

24. After noting the maximum penalties (and SNPP for the reckless wounding offence), his Honour noted that the applicant had been in custody since his arrest on 26 April 2018 and was doing “quite well” in custody. His Honour then stated:

“The offender who is 32 years of age now, is a person who has a number of personal issues such as anger management and problems with alcohol, other problems which have been detailed in the material that I have carefully considered.”

25. After setting out the agreed facts, the sentencing judge noted that the applicant had previous convictions for assaults. His Honour took these offences into account and noted that in 2006 the applicant was placed on a good behaviour bond with anger management and alcohol abuse supervision conditions. His Honour commented that “[i]t does seem from this history and certainly from the facts which are before me today that this man has had for a considerable period a time, difficulties controlling his anger”, and that there were other matters on his history which also “give rise to that issue of anger management”.

26. After noting the criminal history and previous opportunities to seriously address his alcohol and anger management issue, his Honour observed that “[s]adly, those periods of time when he was subject to supervision on conditional liberty had no lasting effect.”

27. As for the offending behaviour, his Honour noted that the applicant recalled becoming “unreasonably angered” when he saw the victim. Reference was made to the fact that the applicant attended the police station on 26 April 2018 which tended to show that the applicant understood the gravity of the offending. His Honour also took into account the early plea of guilty, noted the applicant’s family support and the fact that he had been assessed as a medium to low risk of offending in the Sentence Assessment Report.

28. His Honour then referred to Ms Godbee’s report and noted that the applicant’s background was really “not the subject of any particular challenge.” It was noted that

“..overall, the report indicates to me that there were particular problems with his father. To use his own words, he described his childhood as ‘fucked up’ and he added that he knew the way he was being raised was ‘not how other kids were being raised’.”

29. His Honour observed that the applicant certainly had:

“……a very disruptive childhood, both at school and having regard to his father, who apparently encouraged violence between the children. From what I have read in this report his father was hardly any role model for the offender.”

30. His Honour noted the applicant’s work and sport-related injuries but observed that he was not significantly impacted by these. Furthermore, his Honour noted that the applicant had sustained several injuries from fights, including having his eyebrows split and having been hit in the face with a schooner.

31. His Honour referred to the applicant’s drug use, which included use of cannabis and ecstasy. It was noted that the applicant had experienced suicidal ideation from an early age and had apparently attempted suicide some time before the offending. His Honour then stated that this was “certainly a subjective matter that indicates to this Court that he is a man who certainly needs intensive counselling and rehabilitation.”

32. In terms of mitigating factors, his Honour took into account the fact that the applicant appeared to be genuinely remorseful and had shown empathy for the victim. He also took into account the fact that the applicant accepted that he needed to be punished for the offence and appeared to be productive in custody.

33. When considering the possibility of an Intensive Correction Order for the offence, his Honour considered that the objective seriousness of the offence and gravity of the offence warranted a term of imprisonment. His Honour noted submissions from the Crown which indicated that “glassing” is a serious offence (citing Osborne v R [2015] NSWCCA 260 at [80]-[82]) and then said this:

“[w]hen it comes to the offence of reckless wounding with a standard non parole period I am mindful of what was said in R v Way (2004) 60 NSWLR 168. I am mindful of the need to acknowledge and take into account legislative guideposts and other matters that the court must take into account when there is a penalty that includes a standard non-parole period.”

34. His Honour also took into account the high degree of violence and ferocity involved in the offending and the fact that it was an unprovoked attack on an innocent victim. He found that the injuries and harm suffered by the victim were significant. Overall, his Honour found that the offending was in the mid-range of offending for similar offences.

35. His Honour then observed the following:

“Subjective considerations and the objective circumstances of the case are not mutually exclusive notions, they all need to be carefully taken into account and the court has to be careful to ensure that any subjective considerations do not cause inadequate weight to be given to these objective circumstances. I am mindful of the elements of each of the offences when it comes to any aggravating features and the court has to be careful not to double count those matters.”

36. Finally, his Honour made a finding of special circumstances and adjusted the statutory ratio between the non-parole period and the balance of the sentence: s 44(2) of the Crimes (Sentencing Act Procedure) Act 1999 (NSW) (“the Sentencing Act”). In doing so he observed the following:

“I do think his prospects of rehabilitation would be enhanced by virtue of a shorter non-parole period and the court has to be careful not to impose a sentence which would be crushing upon the offender. At the same time the court must be mindful to impose an appropriate sentence for each of these offences, the court needs to take into account any extent to which the sentences should be concurrent or partially so, then the court needs to step back and look at all of the offending. The question of totality is a matter that must be taken into account by the court as well.”

Grounds of appeal

Applicant’s Submissions: Ground One

37. The applicant’s first ground of appeal concerned the sentencing judge’s reference to Way. It was submitted that the sentencing judge had given the SNPP for the offence of reckless wounding (3 years imprisonment), determinative significance consistent with Way. His Honour set out the facts, subjective matters and a number of his findings and then, after citing Way, considered the objective factors and found that the offence fell within the mid-range. His Honour then considered any aggravating and mitigating factors, special circumstances and totality. This demonstrated, it was submitted, that his Honour had adopted the two-stage approach advanced in Way. The indicative non-parole period for the wounding offence was 2 years, which was “very close” to the SNPP of 3 years after the discount for the early plea of guilty is applied. Furthermore, the sentencing judge did not mention the principles contained in Muldrock.

38. It was submitted that a wrong legal principle was applied which called for this Court to resentence afresh. Reliance was placed upon the decision in Campbell v R [2018] NSWCCA 17, where the relevant error was a misstatement of the maximum penalty for an offence. By way of analogy, it was submitted that Robison DCJ’s reference to Way was a “shorthand reference to educated readers” that he was approaching the sentencing task consistent with the principles set out in that judgment.

39. It was further submitted that his Honour’s approach was ambiguous in that it was unclear what the sentencing judge meant when he stated that “subjective considerations and the objective circumstance of a case are not mutually exclusive notions”. In his submission, this statement was a “textbook quoting” of Way.

Crown Submissions: Ground One

40. The Crown submitted that the Remarks on Sentence did not demonstrate that the sentencing judge impermissibly used the two-stage approach apparently endorsed in Way. They do not disclose that his Honour considered reasons why he should depart from the SNPP after finding that the offence fell within the mid-range of objective seriousness. This is what would be expected if his Honour was erroneously following Way. Furthermore, the Crown submitted that his Honour made remarks which indicated that he was applying an instinctive synthesis approach, as evidenced by his observation (extracted above at [35]) that “[s]ubjective considerations and the objective circumstances of the case are not mutually exclusive notions.”

41. Rather, the Crown submitted that his Honour’s reference to Way was an acknowledgement of the written submission advanced by the Crown at the sentencing hearing (extracted above at [33]) in which Way was relied upon as authority for a different proposition. Although the two-stage approach was rejected by the High Court in Muldrock, many of the sentencing principles set out in Way are still applicable, albeit in the context of the instinctive synthesis approach. It was further submitted that it was “speculation” that his Honour cited Way in the manner advanced by the applicant.

Consideration: Ground One

42. It was common ground that had the sentencing judge applied the standard non-parole period by adopting the two-stage approach in R v Way that would have been an error. That aspect of the decision in Way was overturned by the High Court in Muldrock.

43. The determination of this ground turns on what his Honour meant when he citied Way as the relevant authority for when a SNPP applies.

44. Factors favouring the applicant’s contention that his Honour gave the SNPP determinative or primary significance are: the fact that his Honour mentioned Way and not Muldrock and the fact that the non-parole period for the indicative sentence for the reckless wounding was “close to” the standard non-parole period. Further, although the Remarks on Sentence were delivered ex tempore, they had been revised by the sentencing judge which makes it unlikely that the reference to Way was a mis-transcription or accident.

45. I do not accept the applicant’s submission that the structure of the Remarks on Sentence also supports its contention. There is nothing irregular in the fact that his Honour addressed objective factors first and then went on to consider the subjective factors, despite the fact that the finding of objective seriousness was not made until near the end of the reasons.

46. A significant factor favouring the Crown’s contention that his Honour did not give the SNPP determinative or primary significance is the fact that his Honour did not say he was doing so.

47. I have had regard to the Crown submission that the slip can be explained by the reference to Way in the Crown submissions on sentence. I have extracted the relevant portion above at [33]. There are three difficulties with this explanation. First, no pinpoint was provided to the reference in Way that was relied upon by the Crown before the sentencing judge so it is not clear what the relevant passage was.

48. Secondly, the proposition for which Way was cited by the Crown in the proceedings on sentence did not concern SNPPs. Rather, it was cited as authority for the (uncontroversial) proposition that a maximum penalty can be viewed as “an expression of the legislative intention or reflection of the public perception of the seriousness of the crime”. Interestingly, the words “public perception of the seriousness of the crime” do not appear in Way which makes it difficult to ascertain what passage in that decision the Crown was actually relying upon.

49. Thirdly, the passage in Way that does refer to maximum penalties is at [53] and is as follows:

“There is nothing in Division 1A to suggest that the statutory maximum ceases to provide a benchmark, or a reference point, in sentencing, so far as it is a manifestation of legislative intention as to the seriousness of the offence. The focus is, however, likely to shift more towards the standard non-parole periods where they apply, since they may be taken to express a legislative intention as to the minimum periods of actual imprisonment, which are appropriate for the relevant offences.”

50. Although the first part of this paragraph would survive the decision in Muldrock, the latter would not as it suggests that a SNPP is a “minimum period of actual imprisonment” appropriate to an offence.

51. For these reasons, I am not satisfied that his Honour’s reference to Way was in the context of the proposition advanced in the Crown sentencing submissions.

52. Despite the fact that I consider it unlikely that the sentencing judge meant to follow the decision in Way as being authority for the correct approach to sentencing for an offence to which a SNPP applies, the fact remains that the Reasons suggest that he did so. On this basis error is established.

53. I would allow Ground One.

Applicant’s Submissions: Ground Two

54. The applicant’s second ground of appeal alleges that his Honour failed to have regard to the applicant’s difficult and violent upbringing when assessing moral culpability as required by Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”).

55. It was contended that although his Honour referred to the crime as one that involved “inexplicable” violence, this violence was, in fact, explicable if regard was had to the applicant’s unfortunate childhood and upbringing. Although it was accepted that the sentencing judge dealt in some detail with the applicant’s background, at no point did his Honour specifically deal with how that background impinged on the applicant’s offending.

56. It was accepted that this point was not directly submitted before the sentencing judge, but it would be in the interests of justice to consider this ground. The evidence relevant to moral culpability was unchallenged at the sentencing hearing and therefore the considerations outlined by McCallum J (as her Honour then was) in Griffin v R [2018] NSWCCA 259 (“Griffin”) at [36]-[38] applied.

Crown Submissions: Ground Two

57. The Crown relied upon the fact that this argument was not raised before the sentencing judge. Further, to the extent that his Honour did not expressly state how he was taking these issues into account, it was submitted that adequacy of sentencing reasons depends on the way that the case has been conducted at trial. Reliance was placed on the decision in Mifsud v Campbell (1991) 21 NSWLR 725; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 725; and Horvath v R [2019] NSWCCA 285. The Crown submitted that this Court should give particular weight to the fact that this judgment was delivered ex tempore.

58. As for the applicant’s reliance upon the decision in Griffin, it was submitted that that case is distinguishable from the present facts. There was no psychiatric evidence before the sentencing judge that the applicant had a mental illness and his circumstances of deprivation were not as profound as they were in Griffin. The Crown also distinguished Griffin on the basis that the applicant in that case was aged 19 years and his youth was an important consideration for moral culpability. In this context, the Crown submitted that the sentencing judge made adequate references to the applicant’s background and psychological difficulties.

59. It was further submitted that the fact that the sentencing judge did give consideration to moral culpability was evidenced by his Honour’s detailed references to the need for the applicant to receive rehabilitation and counselling services. Counsel for the Crown submitted that it was:

“….[o]pen to [the sentencing judge] to say, regardless of any sympathies one might have for his terrible upbringing he is because of this highly dangerous and we may have to pass a more severe sentence because of it. The judge doesn’t do that, he takes it into account in some detail.”

Consideration: Ground Two

60. In Bugmy, French CJ, Hayne, Gummow, Kiefel, Bell and Keane JJ observed the following at [44] (footnote omitted):

“Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.” (Emphasis added.)

61. The evidence before the sentencing judge included the following:

1. The applicant’s anger difficulties are “likely to be associated with his exposure to violence and trauma in his early life”;

2. The fact that the applicant was fearful of his father “limited his opportunities to develop appropriate emotion regulation and interpersonal skills, and he instead developed a pattern of anger and mistrust”;

3. The applicant’s exposure to violence and drug abuse throughout his childhood “likely normalised these behaviours for him”;

4. The applicant, in adulthood, endorsed “some ongoing indicators of trauma response such as difficulty trusting others, reckless behaviours (such as substance use), emotional dysregulation (such as suicidal ideation) and difficulties with anger (as part of an exaggerated “fight” or “flight” response); and

5. The applicant’s depression, anxiety and anger difficulties appear to be a function of a complex trauma response to a persistent lack of safety throughout his early life.

62. It was common ground that no submission was put to the sentencing judge to the effect that the applicant’s moral culpability could be “substantially reduced” because of his childhood exposure to extreme violence and alcohol abuse which might explain his “recourse to violence when frustrated”. This is despite the fact that there was uncontested evidence of the applicant’s deprived up-bringing and expert evidence concerning his anger management difficulties.

63. The Crown relied upon the principles to be derived from Zreika v R (2012) 223 A Crim R 460 (“Zreika”) in this regard. As Johnson J observed at [81] in Zreika, in sentencing appeals to this Court:

“….the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made.”

64. Johnson J went on to observe at [82]:

“In rare circumstances, a factor which may operate in mitigation of penalty (and which appears clearly from the material before the sentencing Judge) may have been overlooked by defence counsel and the sentencing Judge. In such a case, this Court may be invited to have regard to it, often in circumstances where the Crown will accept that the relevant material raised a factor which should unequivocally operate in the offender's favour on sentence. As Warren CJ said in Bayram v R at [29],it may ‘render a serious injustice’ if an offender was not able to correct the error in such a case. This approach reflects the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance. At the same time, criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance.”

65. These principles are well established but they do not mean that this Court will never entertain a ground of appeal contending failure to have regard to a mitigating factor that was not specifically addressed at sentence. That this is so can be seen in the decision of McCallum J (as her Honour then was) (with whom Beazley P and Davies J agreed) in Griffin at [36]-[38].

66. In Griffin it was put for the first time in this Court that the sentencing judge had failed to have regard to the offender’s mental health. The Crown relied upon Zreika to argue that such a ground could not be raised for the first time in this Court. Her Honour observed at [36]:

“While counsel’s failure to address the issue in any helpful way was unfortunate and may go some way to explaining how the process may have miscarried, I do not think the observations made in Zreika should preclude the Court from entertaining the present ground. The ultimate question in sentence appeals is whether the applicant was sentenced according to law. That issue is not necessarily determined, as an issue raised in a civil appeal might be, by the answer to the question whether the point was taken in the court below.”

67. It is to be accepted that the facts in Griffin differed in significant respects to the present case. In that decision the applicant’s mental condition was not given any particular consideration by the sentencing judge, whereas it is common ground that in the present matter the sentencing judge clearly referred to the applicant’s childhood and the unchallenged evidence in the extracts I have set out above. But it seems to me that the fact that the applicant’s counsel did not expressly raise the Bugmy approach does not mean that there was no error in the failure to consider it given the uncontested material before the Court. Nor do I consider that the approach taken in Griffin is inapplicable to a case such as this applicant’s. That is, I do not accept the Crown submission that this Court ought to decline to entertain this ground because the applicant has not made out a case of profound deprivation of the kind observed in Griffin or, for that matter, Bugmy.

68. His Honour provided detailed reasons in this matter and made numerous references to the applicant’s difficult and violent upbringing, but the fact remains that there is no mention of the principles in Bugmy, nor to the question of the applicant’s moral culpability in the sentencing reasons. Contrary to the submission of the Crown, this case could be considered a classic Bugmy case where the “sins of the father” have resulted in the applicant turning to violence when frustrated. His inability to control that impulse reduces his moral culpability. Although it was not squarely put to his Honour that the Bugmy principles were relevant, they are nonetheless applicable when there is uncontested evidence that the factual basis for raising them is present.

69. I would allow Ground Two.

Applicant’s Submissions: Ground Three

70. The applicant’s third ground of appeal alleged that the sentencing judge erred in his approach to notional accumulation. When comparing the indicative sentences with the aggregate sentence it can be seen that the degree of accumulation must have been significant. The applicant submitted that this accumulation was an error of principle because of the “significant degree of overlap” between the two offences.

71. Furthermore, the applicant submitted that, although the sentencing judge dealt with the need not to impose a “crushing” sentence on the applicant, he did not explicitly deal with the “acute” overlapping criminality. This meant that the applicant was incorrectly “doubly punished”. Alternatively, the applicant submitted that there was an error of law in that the notional accumulation was not properly explained.

72. In oral submissions, counsel for the applicant distinguished the situation in this case from a case where there are multiple overlapping charges, using the example of 25 break and enters where each charge carried a term of imprisonment for 3 years. In such a case, the application of the principle of totality and accumulation could be done in an instinctive or intuitive way. However, when there were only two offences, the sentencing judge was required to give a rational transparent explanation as to how, why or if there was to be any accumulation, which did not occur here.

Crown Submissions: Ground Three

73. In response, the Crown submitted that the only relevant question for this Court was whether the sentence reflected the totality of the criminality, citing Burgess v R [2019] NSWCCA 13 at [40] (Hoeben CJ at CL). The Crown submitted that there was no complaint of manifest excess by the applicant and the sentencing judge was under no obligation to explain the role that accumulation played in the eventual aggregate sentence. The Crown submitted that accumulation is discretionary and intuitive. Furthermore, the sentencing judge had expressly considered totality and the need not to “double count”. The Crown also submitted that the two offences involved different criminality, as the first offence involved using the weapon with intent and the second offence involved “completing that intended violence”.

Consideration: Ground Three

74. This ground of appeal raises two questions for consideration: the extent to which complaint can be made about the degree of concurrence and accumulation in an aggregate sentence; and, whether the reasons regarding the way his Honour dealt with the overlap in criminality as between the two offences were adequate.

75. The applicant came to be sentenced for two offences arising out of the same act. The first offence arose from the use by the applicant of a schooner glass with the intention of committing an assault occasioning actual bodily harm. The actus reus of that offence is the use of the schooner glass whereas the mens rea is the intent to inflict actual bodily harm. The second offence was the reckless wounding. The actus reus of that offence is the act causing the wound where the mens rea is recklessness as to whether actual bodily harm is caused to that or any other person.

76. The applicant’s complaint is directed at the degree of accumulation and concurrence as between the two indicative sentences. Had the sentencing judge imposed separate sentences for these two offences his Honour would have been required to first arrive at an appropriate sentence for each offence and then have regard to issues of concurrence and accumulation according to principles of totality: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 (“Pearce”). As for the degree of concurrence and accumulation, in Cahyadi v R [2007] NSWCCA 1, Howie J (with whom Adams and Price JJ agreed) stated the relevant principles at [27]:

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

77. The extent of accumulation and concurrence is very much a matter of discretion for the sentencing judge. As Bell and Keane JJ observed in Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [37] (footnotes omitted):

“Just as a sentencing judge is accorded as much flexibility as is consonant with the statutory sentencing regime in determining the appropriate sentence, so, too, the judge is to be accorded the same flexibility in determining the structure of two or more sentences. The Sentencing Act does not confine the approach to be taken to the structure of two or more sentences. It assumes concurrency in the absence of a direction to the contrary.”

78. The above authorities concerned the imposition of individual sentences but the applicant was sentenced to an aggregate sentence pursuant to s 53A(1) of the Sentencing Act. In doing so, his Honour indicated the sentences he would have imposed if sentencing for each offence separately: s 53A(2).

79. Since its enactment on 14 March 2011, s 53A of the Sentencing Act has been judicially considered on numerous occasions. One of the early issues that gave rise to uncertainty following its enactment was the extent to which the totality principle and notions of accumulation and concurrence apply when imposing an aggregate sentence. Two decisions in 2013 which considered this issue were R v Rae [2013] NSWCCA 9 (“Rae”) and Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 (“Truong v R”).

80. In Rae this Court allowed a Crown appeal on the basis that the relevant indicative sentences for three counts showed that there had been no “notional” accumulation on two of them, even though they involved separate acts of serious criminality. Button J (with whom Macfarlan JA and Price J agreed) observed at [42]-[44]:

“It is true that, pursuant to the new procedure, a single aggregate sentence was imposed reflecting the criminality of all three offences. Therefore to speak of questions of partial accumulation is perhaps not entirely apt.

However, I consider that Parliament called for sentencing judges and magistrates to indicate the sentences that would have been imposed with regard to individual charges or counts so that an analysis of the kind that the Crown has asked this Court to undertake is available.

It may be that there was, with respect, perhaps some misunderstanding as to the relationship that an aggregate head sentence must have to indicative head sentences. It is noteworthy that, as I have said, his Honour imposed an aggregate head sentence that is identical with the longest indicative head sentence in circumstances in which both parties accepted that there must be partial accumulation.”

81. In Truong v R, on the other hand, the aggregate sentence arose from seven offences and a further nine offences on a s 166 certificate. In response to a complaint concerning accumulation Button J (with whom McClellan CJ at CL and Garling J agreed) said at [231]:

“… it is clear that the process of aggregate sentencing, unlike traditional sentencing, does not permit of a mathematical analysis of the degrees to which partial and complete concurrence or accumulation have been adopted by a sentencing judge. All one can really do is look at each of the individual offences for which the offender was to be dealt, consider the indicative sentences (though I appreciate that it is the submission of the Crown that many of these were erroneous as well), and then determine whether the aggregate head sentence and aggregate non-parole period are erroneous in light of that background. The whole point of aggregate sentencing is to free sentencing judges from the task of creating elaborate sentence structures. A logical consequence of that is that this Court is not in a position to undertake an analysis of explicit questions of concurrence and accumulation in the same way that it can analyse traditional sentencing structures.”

82. Justice R A Hulme collected and considered the decisions of this Court dealing with appeals from aggregate sentences in JM v R [2014] NSWCCA 297 at [39] (“JM”). Relevantly, his Honour observed at [39](4):

“It is still necessary in assessing the indicative sentences to have regard to the requirements of Pearce v The Queen [1998] HCA 57; 194 CLR 610. The criminality involved in each offence needs to be assessed individually. To adopt an approach of making a "blanket assessment" by simply indicating the same sentence for a number of offences is erroneous: R v Brown [2012] NSWCCA 199 at [17], [26]; Nykolyn v R, supra, at [32]; [56]-[57]; Subramaniam v R [2013] NSWCCA 159 at [27]-[29]; SHR v R, supra, at [40]; R v Lolesio [2014] NSWCCA 219 at [88]-[89]. It has been said that s 53A(2) is "clearly directed to ensuring transparency in the process of imposing an aggregate sentence and in that connection, imposing a discipline on sentencing judges": Khawaja v R, supra, at [18].”

83. His Honour then went on to observe at [40]:

“The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence: R v Brown, supra, at [17]; Nykolyn v R, supra, at [58]; PD v R [2012] NSWCCA 242 at [44]; R v Rae [2013] NSWCCA 9 at [32]-[33], [42]-[43]; Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [218], [227]; Subramaniam v R, supra, at [28]; SHR v R, supra, at [40]; R v Clarke, supra, at [56]; Martin v R [2014] NSWCCA 124 at [47]; JL v R [2014] NSWCCA 130 at [17]; Stoeski v R, supra, at [43]; CL v R [2014] NSWCCA 196 at [53]-[55].

…..

A principle focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved: R v Brown, supra, at [37]; R v Rae, supra, at [42]-[46], [62], [69]. This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures: Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [231]; Martin v R, supra, at [33]-[41].”

84. It is clear that the totality principle still applies to aggregate sentences. As R A Hulme J observed in JM, a sentencing judge is still required to assess the criminality of each offence separately before imposing an appropriate aggregate sentence. Despite this, it is also clear that the same transparency regarding the degree of accumulation and concurrence that is available when an offender is sentenced separately on each offence is not apparent when an aggregate sentence is imposed, with one exception: when an aggregate sentence is imposed for only two offences there is some transparency.

85. A common complaint to this Court when alleging manifest excess (or manifest inadequacy) of an aggregate sentence is to contend that the sentencing judge has erred in the degree of accumulation and concurrence. Such a complaint will be upheld in obvious cases, such as when the aggregate sentence is the same length as one of a number of indicative sentences showing there was no accumulation (as occurred in Rae cited above). But the failure to properly apply the totality principle must be able to be gleaned from the indicative sentences when compared with the aggregate sentence. That will often not be the case. This Court will not intervene where the failure to apply the totality principle is not apparent, nor when there is a complaint that the judge has failed to specifically state the degree of accumulation and concurrence. That this is so can be seen by reference to a number of decisions of this Court addressing this question.

86. In ZA v R [2017] NSWCCA 132 this Court considered an appeal against an aggregate sentence imposed for 10 offences. Two of the grounds of appeal were a claim of failure to provide adequate reasons for imposing the aggregate sentence and a contention that the sentencing judge “erred in the application of the totality principle”. Johnson and Fullerton JJ rejected both grounds. At [88] their Honours observed:

“This Court has observed that questions of accumulation are intuitive, and by nature limit the level of transparency that can be provided by the sentencing Judge: JT v R [2012] NSWCCA 133 at [73]. Since the introduction of aggregate sentencing, it has been said that absolute precision in specifying the degree of accumulation would be tantamount to expressing commencement dates for each indicative sentence contrary to one of the rationales for introducing aggregate sentencing: Beale v R [2015] NSWCCA 120 at [4]; JM v R (2014) 246 A Crim R 528 at 534-538 [34]-[40]; [2014] NSWCCA 297.”

87. Their Honours went on to observe at [90] and [91] that:

“We are satisfied that the sentencing Judge applied the totality principle in this case. It may be taken that the entirety of the sentencing Judge’s remarks on sentence served to explain the ultimate sentence which was imposed.

Given the indicative sentences for 10 separate offences, it is reasonable to conclude that there was a significant level of notional accumulation in reaching the aggregate sentence.”

88. Justice Payne agreed with their Honours noting that the sentencing judge expressly adverted to the principle of totality in his reasons.

89. In Chaouk v R [2017] NSWCCA 295, Fullerton J (with whom Macfarlan JA and Fagan J agreed) allowed a ground of appeal that alleged such an error and observed at [63]:

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

90. In Berryman v R [2017] NSWCCA 297, a ground of manifest excess was raised in relation to an aggregate sentence imposed for five offences. Leeming JA observed this at [50]:

“At one point, the applicant’s submissions suggested that the primary judge should have disclosed the precise degree of accumulation which had been applied. That submission must be rejected. Any such requirement would undermine the legislative purpose of aggregate sentencing, which is to obviate “the need to engage in the laborious and sometimes complicated task of creating a ‘cascading or “stairway” sentencing structure’ when the principle of totality requires some accumulation of sentences”: JM v R [2014] NSWCCA 297 at [39].”

91. His Honour then went on to observe that:

“However, even so the conclusion is irresistible that a greater degree of notional concurrency should have been provided in relation to the four offences which occurred in the afternoon.”

92. In Tuite v R [2018] NSWCCA 175 at [91], this Court considered a ground of manifest excess in relation to an aggregate sentence imposed for seven offences. Hoeben CJ at CL (with whom R A Hulme and Button JJ agreed) observed at [91]:

“It was implicit in the applicant’s submissions that his Honour erred in not giving reasons as to how the sentences were accumulated. His Honour was under no obligation to explain how questions of accumulation and concurrence were resolved or state the degree by which indicative sentences would be accumulated so as to arrive at an aggregate sentence (Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [164]). As R A Hulme J pointed out in Chamseddine v R [2017] NSWCCA 176 at [74] this is one of the ways that aggregate sentencing has simplified the task of sentencing for multiple offences. Accordingly, with an aggregate sentence, this Court is not in a position to analyse issues of concurrence and accumulation in the same way as it can analyse traditional sentencing structures. Such an approach is consistent with what was said in ZA v R [2017] NSWCCA 132 at [88] where Johnson and Fullerton JJ (Payne JA agreeing) observed that questions of accumulation are intuitive and by nature limit the level of transparency that can be provided by the sentencing judge: JT v R [2012] NSWCCA 133 at [73].”

93. In Burgess v R [2019] NSWCCA 13 (“Burgess”) this Court considered a ground of manifest excess in relation to an aggregate sentence imposed for only two offences. The sentencing judge imposed a head sentence of 6 years and 6 months with a non-parole period of 4 years. The indicative sentence for the first count was 5 years and 6 months with a non-parole period of 3 years and 6 months and the indicative sentence on the second count was imprisonment for 3 years with a non-parole period of 2 years. In dismissing that ground Hoeben CJ at CL (with whom Fagan and Wright JJ agreed) observed at [40]:

“…where an aggregate sentence is imposed, the appeal lies from the aggregate sentence. Another consequence of imposing an aggregate sentence is that questions of accumulation cannot be analysed in the same way as they can with traditional sentencing structures (Tuite v R [2018] NSWCCA 175 at [91]). Accordingly, the only relevant question is whether the sentence reflects the totality of the criminality. Since the extent of the notional accumulation does not dictate a conclusion that the aggregate sentence is unreasonable or plainly unjust, this ground of appeal has not been made out.”

94. Thus, in Burgess, although this Court acknowledged that questions of accumulation and accumulation cannot be analysed in the same way for an aggregate sentence as they can when individual sentences are imposed, their Honours were still able to have regard to the “notional accumulation” (given there were only two offences) to conclude that the sentence was not “unreasonable or plainly unjust”.

95. More recently in Vaughan v R [2020] NSWCCA 3 (“Vaughan”) this Court considered an appeal against an aggregate sentence of 21 years imprisonment with a non-parole period of 14 years for two offences, both of which had SNPPs. For the first offence (s 27 of the Crimes Act 1900) the indicative sentence was 17 years and 6 months with a non-parole period of 12 years and for the second offence (s 33(1)(a) of the Crimes Act 1900) the indicative sentence was 11 years and 3 months with a non-parole period of 8 years. The sole ground of appeal was that, regardless of how the indicative sentences might be accumulated, it was not possible to arrive arithmetically at the aggregate head sentence and non-parole period imposed

96. Johnson J (with whom Macfarlan JA and R A Hulme J agreed) observed at [87] that:

“In my view, the Applicant’s submissions in support of this ground of appeal are based upon a misconception concerning the operation of the statutory provisions providing for aggregate sentencing in this State.”

97. His Honour went on to observe at [91]:

“The principles of sentencing concerning accumulation and concurrency at general law, as explained in Pearce v The Queen, have no application where an aggregate sentence is used by the sentencing Court. The principle of totality has operation with the sentencing Court to undertake that task bearing in mind totality: ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132 at [68]-[84].” (Emphasis added.)

98. His Honour then extracted the relevant passages from JM before observing at [93]:

“There is no support in JM v R for a sentencing Judge to undertake a “shadow exercise” of the type argued for the Applicant in this case.”

99. The applicant in Vaughan had relied upon the decision in Rae in support of this ground. Johnson J went on at [94] to say this about that decision:

“What occurred in R v Rae was a variation of the problem referred to in JM v R at [39](4) (see [92] above). The impermissible “blanket assessment” referred to by R A Hulme J in that paragraph was criticised in decisions of this Court before the introduction of aggregate sentencing by reference to the principles in Pearce v The Queen: Porter v R [2008] NSWCCA 145 at [72]-[74].”

100. Having regard to what Johnson J stated at [93] and [94], and given the limited arithmetical argument before the Court in Vaughan, I am satisfied that his Honour’s observation in the first sentence of [91] was directed at the ground being considered by his Honour; that is, there can be no expectation when an aggregate sentence is imposed that an offender will be able to arithmetically align that aggregate sentence with the indicative sentences, as can be done when an offender is sentenced in the traditional way. The enactment of s 53A removed the obligation for a sentencing judge to provide the exact dates for each offence. I do not consider that Johnson J was stating in the first sentence of [91] that this Court is never able to look at the indicative sentences in order to assess in general terms the degree of concurrence and accumulation. That would be contrary to the principles derived from the decisions I have referred to above as well as to the fact that his Honour goes on in the next sentence in [91] of Vaughan to confirm that the totality principle still applies. His Honour also noted that, as occurred in Rae, error can be established if it is apparent that no, or no appropriate, degree of accumulation has occurred as between the indicative sentences when compared with the aggregate sentence.

101. More recently, in Taitoko v R [2020] NSWCCA 43, a ground of manifest excess was upheld on the basis that the totality principle had not been properly applied to an aggregate sentence imposed for five offences which occurred over a very short period of time. Leeming JA (with whom Hoeben CJ at CL and Lonergan J agreed) observed this at [131]:

“There is no rule that proximity in time necessarily leads to large degrees of concurrency for the sentences imposed for separate offending in a short time period. However, in the present case, the entirety of the offending occurred in slightly more than an hour, all following the applicant’s sustained drinking from 10 am that morning, and all was of the same general nature, although the harm was directed upon different victims. It is clear that this is a case where a deal of the criminality in each offence is best seen as comprehending and reflecting the criminality of the other offences, in accordance with what was said in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27].”

102. Leeming JA went on to observe at [133]:

“The same approach applies when ensuring that an aggregate sentence accords with totality. An example may be seen in this Court’s decision in Berryman v R [2017] NSWCCA 297, and indeed the reasoning at [57] is apposite.”

103. Having regard to these decisions, I am satisfied that, although it is not possible to ascertain the degree of concurrence and accumulation in an aggregate sentence by reference to the indicative sentences, it is not impermissible to have regard to the indicative sentences when looking at whether error is disclosed in the aggregate sentence. Moreover, although a degree of transparency still exists when the aggregate sentence is imposed for only two offences, that does not mean that when non-parole periods are included in the two indicative sentences, the aggregate sentence should arithmetically reflect the degree of concurrence and accumulation as between those two indicative sentences.

104. Turning to the complaint under this ground it should be noted that, with the exception of Vaughan, all of the above decisions concerned a ground alleging that the aggregate sentence was unreasonable or plainly unjust under the fifth limb of House v The King (1936) 55 CLR 499; [1936] HCA 40; that is, there was a complaint of either manifest excess or manifest leniency. The applicant does not complain that the sentence imposed on him was manifestly excessive; rather, the complaint is that his Honour either failed to have regard to the overlap in criminality as between the two offences, or failed to provide reasons as to how his Honour dealt with this issue.

103. The applicant’s complaint is similar to one of the complaints in Pearce. In Pearce, the offender came to be sentenced for a number of offences, two of which involved overlapping criminality. One of those offences was a count of maliciously inflicting grievous bodily harm with intent to inflict grievous bodily harm and the second offence was a count of breaking and entering a dwelling house and inflicting grievous bodily harm on a person therein. Justices McHugh, Hayne and Callinan observed at [40]:

“To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.”

106. Their Honours concluded at [49]:

“ … the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm.”

107. In the present matter, the first offence carried a maximum penalty of 12 years and an indicative sentence of 1 year and 10 months was stated. The second offence carried a maximum penalty of 7 years (and a SNPP of 3 years) and an indicative sentence of 3 years and 2 months with a non-parole period of 2 years was stated. Those two indicative sentences add up to of 5 years and an aggregate sentence of 4 years was imposed. To put this in another way, the aggregate non-parole period of 2 years and 3 months was 3 months longer than the indicative sentence for the reckless wounding and the aggregate head sentence was 10 months longer than the aggregate sentence for the first count.

108. I have had regard to the fact that, as a matter of general principle, error can be established in relation to double punishment without a sentence being manifestly excessive. Thus, I have considered the complaint of double punishment as a separate issue. I am not persuaded that there has been any impermissible double counting in this matter. The use of the weapon was sufficient to require some accumulation and I do not consider the degree of accumulation was so excessive as to indicate error. His Honour was afforded flexibility in the exercise of his sentencing discretion in this error and I am not satisfied that he erred in the exercise of this discretion.

109. Nor am I satisfied that there was an inadequacy of reasons as to the approach taken by his Honour on this issue. In the present case, the sentencing judge referred to the care necessary not to impose a “crushing sentence” on the applicant, to the need to impose an appropriate sentence “for each of the offences”, to the need to have regard to the “extent to which the sentences should be concurrent or partially so”, to the fact that the Court “then needs to step back and look at all of this offending” and also to the fact that the “question of totality is a matter that must be taken into account by the Court as well.” There is no criticism of these general statements of principle by the applicant nor could there be. The specific complaint is that in the circumstances of this particular case, the sentencing judge should have gone further and expressly stated that due to the significant overlap in elements there should be a significant degree of concurrence as between them.

110. I am not satisfied that Ground Three is established.

Re-sentencing

111. I am satisfied that Grounds One and Two are established. It is, thus, necessary for this Court to exercise its own independent sentencing discretion for the purpose of determining whether a lesser sentence should be imposed under s 6(3) Criminal Appeal Act 1912 (NSW): Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].

112. In undertaking the sentencing discretion afresh the Court is required to identify the factors relevant to the sentence, discuss their significance and then make a value judgment as to what is the appropriate sentence given all the factors of the case: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], confirmed by the Court in Muldrock v The Queen at [26]. The maximum penalties and SNPP are guideposts to which I must have regard.

113. I have set out the applicant’s subjective circumstances and the findings of the sentencing judge above at [29]-[36]. I adopt the same findings as the sentencing judge with the exception that I am satisfied that the offender’s moral culpability is reduced due to the violent upbringing he was exposed to. I would find special circumstances. The sentencing judge imposed a sentence which resulted in the non-parole period constituting 56% of the head sentence. Although this is a significant variation, I propose to adopt the same ratio given the need for the applicant to continue his rehabilitation in the community.

114. I have had regard to the degree of unprovoked violence involved in this offending. These were serious offences. I agree with the sentencing judge that this was not a matter that could have been dealt with by way of an intensive corrections order, no matter how strong the applicant’s subjective case was.

115. The sentencing judge was satisfied that the objective seriousness of the reckless wounding offence was “well within the mid-range of offending for like offences”. His Honour did so without finding that the offence was aggravated by the use of a weapon as that would have involved double counting with count 1. I will also adopt that approach. As for the application of the totality principle, I would arrive at indicative sentences and then have regard to the appropriate aggregate sentence. Given the use of the schooner glass, which is not an element of the reckless wounding count, I am satisfied that there should be additional punishment for the first count.

116. Having regard to all of these matters I have arrived at a sentence that is slightly less than that imposed by the sentencing judge.

ORDERS

117. I would propose the following orders:

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The sentence imposed on the applicant in the Port Macquarie District Court on 22 January 2019 is quashed.

4. In lieu thereof, the applicant is sentenced to an aggregate sentence of 3 years and 9 months to commence on 26 April 2018 and expire on 25 January 2022 and a non-parole period of 2 years and 1 month to commence on 26 April 2018 and expire on 25 May 2020.

5. Pursuant to s 53A(4) of the Crimes (Sentencing Act Procedure) Act 1999 (NSW) the indicative sentences are:

1. Count 1:   18 months’ imprisonment.

2. Count 2:   3 years’ imprisonment with a non-parole period of 2 years.

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Decision last updated: 20 May 2020