Koosmen v The King

Case •

[2025] NSWCCA 122

•

15 August 2025

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Koosmen v R [2025] NSWCCA 122
Hearing dates: 21 July 2025
Date of orders: 15 August 2025
Decision date: 15 August 2025
Before: McHugh JA at [1];
Hamill J at [2];
Yehia J at [3]
Decision:

(1)   Grant leave to appeal.

(2)   Allow the appeal.

(3)   Quash the sentence imposed on the applicant in the District Court on 26 April 2024, and in lieu thereof sentence the applicant to an aggregate term of 12 years’ imprisonment commencing on 1 December 2022 and expiring on 30 November 2034, with a non-parole period of 8 years’ imprisonment. The first date that the applicant will be eligible for release to parole is 30 November 2030.

Catchwords:

CRIME – appeals – appeal against sentence – Form 1 matters – where sentencing judge indicated a starting point for Count 1 before taking into account the Form 1 offences – whether an error in this approach

CRIME – appeals – appeal against sentence – where the sentencing judge failed to make findings in respect of the applicant’s remorse and prospects of rehabilitation – where evidence adduced in support of remorse and rehabilitation – where competing submissions made about mitigating factors – where the differences required “clear and transparent resolution” – appeal allowed

Legislation Cited:

Crimes Act 1900 (NSW), ss 18(1)(b), 52AB(1), 61, 112(1)(a), 112(2), 148, 154A(1)(a), 195(1)(a)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 21A(1)(b), 21A(2)(j), 21A(3)(i), 25D(2)(a), 32, 33, 53A, 53A(2)(b)

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Road Transport Act 2013 (NSW), s 54(1)(a)

Cases Cited:

Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413; [2013] NSWCCA 115

Alenezi v R [2023] NSWCCA 283

Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Baker v R (2022) 302 A Crim R 60; [2022] NSWCCA 195

Director of Public Prosecutions (NSW) v TH (2023) 307 A Crim R 149; [2023] NSWCCA 81

Huang v R [2019] NSWCCA 144

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

Li v R [2023] NSWCCA 112

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

Masters v R [2019] NSWCCA 233

Moananu v R [2022] NSWCCA 85

Nosti v R [2024] NSWCCA 158

Park v The Queen (2021) 273 CLR 303; [2021] HCA 37

Porter v R [2019] NSWCCA 117

R v Koosmen [2024] NSWDC 161

STB v R [2024] NSWCCA 36

Tukuafa v R [2024] NSWCCA 84

Category:Principal judgment
Parties: Benjamin Koosmen (Applicant)
Rex (Respondent)
Representation:

Counsel:
G Huxley (Applicant)
S Healy (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2022/00364441
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Citation:

[2024] NSWDC 161

Date of Decision:
26 April 2024
Before:
Sutherland SC DCJ
File Number(s):
2022/00364441

HEADNOTE

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

Mr Benjamin Koosmen (the applicant) sought leave to appeal against the aggregate sentence imposed by Sutherland SC DCJ in the District Court of New South Wales on 26 April 2024.

Following pleas of guilty, the applicant was sentenced for four offences all committed on 1 December 2022. The offences were manslaughter, aggravated break and enter and commit a serious indictable offence (intimidation), break and enter and commit a serious indictable offence (intimidation) and steal property in a dwelling-house. The applicant asked the Court to take a further six offences committed on 1 December 2022 into account on three Form 1 documents.

The applicant received an aggregate sentence of 15 years’ imprisonment, commencing on 1 December 2022 and expiring on 30 November 2027, with a non-parole period of 10 years, expiring on 30 November 2032.

The applicant relied on five grounds of appeal, namely:

  1. The sentencing judge erred in the process by which the Form 1 offences were taken into account on counts 1, 2 and 4.

  2. The sentencing judge erred in applying the discount for the applicant’s guilty pleas in relation to the indicative sentences on counts 1, 2 and 4.

  3. The sentencing judge erred by failing to make findings in relation to the applicant’s remorse and prospects of rehabilitation.

  4. In the alternative to ground 3, the sentencing judge erred in failing to give reasons for making no findings as to the applicant’s remorse and prospects of rehabilitation.

  5. The aggregate sentence imposed was manifestly excessive.

The Court held per Yehia J (McHugh JA and Hamill J agreeing) granting leave to appeal, allowing the appeal and re-sentencing the applicant:

As to grounds 1 and 2:

  1. It is not permissible to impose a distinct penalty for Form 1 offences. The fact that a sentence is to be determined by reference to the additional need for personal deterrence and retribution arising from the Form 1 offences means that the principle of proportionality falls to be assessed by reference to matters which include those additional factors. Consideration of those additional factors is part of the instinctive synthesis approach to sentencing. The discount for a guilty plea is to be applied to the sentence after Form 1 matters have been taken into account: Yehia J at [90]-[92] (McHugh JA at [1] and Hamill J at [2] agreeing).

  2. For Count 1, the sentencing judge indicated a starting point before discount and absent the matters on the Form 1. It is implicit in the approach taken by the sentencing judge in respect of Count 1 that his Honour identified an additional period that was added to the indicative sentence after the discount was applied. It is less clear whether the sentencing judge engaged in the same erroneous approach in respect of Counts 2 and 4. Having found error in relation to the approach taken in respect of Count 1, grounds 1 and 2 are made out: Yehia J at [93]-[104] (McHugh JA at [1] and Hamill J at [2] agreeing).

Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518, applied.

Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413; [2013] NSWCCA 115; Director of Public Prosecutions (NSW) v TH (2023) 307 A Crim R 149; [2023] NSWCCA 81; Nosti v R [2024] NSWCCA 158; Tukuafa v R [2024] NSWCCA 84; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Huang v R [2019] NSWCCA 144, cited.

As to grounds 3 and 4:

  1. Sentencing judges are required to take into account mitigating factors that are relevant and known to the court. The sentencing discretion requires more than a “tick a box” or mechanistic approach to mitigating factors. However, where mitigating factors are squarely raised and supported by evidence and submissions, and where competing submissions are made, “clear and transparent resolution” is required: Yehia J at [109]-[111] (McHugh JA at [1] and Hamill J at [2] agreeing).

  2. Competing submissions were made during the sentencing proceedings as to the applicant’s remorse and prospects of rehabilitation. No reference was made by the sentencing judge to the applicant’s oral evidence on remorse. The sentencing discretion miscarried because the sentencing judge did not determine the issues that were squarely raised in relation to the applicant’s remorse and prospects of rehabilitation. Ground 3 is made out. It was not necessary to further consider ground 4 (relied on in the alternative) or consider ground 5: Yehia J at [113]-[121] (McHugh JA at [1] and Hamill J at [2] agreeing).

Alenezi v R [2023] NSWCCA 283; Li v R [2023] NSWCCA 112; Masters v R [2019] NSWCCA 233; Porter v R [2019] NSWCCA 117; STB v R [2024] NSWCCA 36; Baker v R (2022) 302 A Crim R 60; [2022] NSWCCA 195, cited.

As to re-sentencing:

  1. In exercising the sentencing discretion afresh, the Court imposed an aggregate sentence of 12 years with a non-parole period of 8 years: Yehia J at [122]-[143] (McHugh JA at [1] and Hamill J at [2] agreeing).

Judgment

  1. MCHUGH JA: I agree with Yehia J.

  2. HAMILL J: I agree with the orders proposed by Yehia J and with her Honour’s reasons.

  3. YEHIA J: Mr Benjamin Koosmen (“the applicant”) seeks leave to appeal against the sentence imposed on him by Sutherland SC DCJ (“the sentencing judge”) in the District Court of New South Wales at Newcastle on 26 April 2024 pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

  4. Following pleas of guilty in the Local Court, the applicant was sentenced for four offences all committed on 1 December 2022. The offences included one count of manslaughter contrary to s 18(1)(b) of the Crimes Act 1900 (NSW), one count of aggravated break and enter and commit serious indictable offence, namely intimidation, contrary to s 112(2) of the Crimes Act, one count of break and enter and commit serious indictable offence, namely intimidation, contrary to s 112(1)(a) of the Crimes Act, and one count of steal property in a dwelling-house contrary to s 148 of the Crimes Act.

  5. The applicant asked the Court to take a further six offences into account on three Form 1 documents pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”). The additional six offences were also committed on 1 December 2022.

  6. The applicant was entitled to a discount of 25% to reflect the utilitarian value of his pleas of guilty entered in the Local Court. The applicant was sentenced to an aggregate term of imprisonment for 15 years, commencing on 1 December 2022 and expiring on 30 November 2037, with a non-parole period of 10 years. The applicant will first be eligible to be released on parole on 30 November 2032.

  7. The following table sets out the principal offences, the maximum penalties, the additional offences taken into account on the three Form 1 documents and the respective indicative sentences pronounced by the sentencing judge.

Principal offence

Maximum penalty

Offences on a Form 1

Indicative sentence

Count 1: Manslaughter (s 18(1)(b) Crimes Act)

Maximum: 25 years’ imprisonment

Drive motor vehicle whilst disqualified (s 54(1)(a) Road Transport Act 2013 (NSW))

Take and drive conveyance without consent of owner (s 154A(1)(a) Crimes Act)

Fail to stop and assist after vehicle impact causing death (s 52AB(1) Crimes Act)

12 years

Count 2: Aggravated (knowing person/s present) break and enter and commit serious indictable offence (intimidation) (s 112(2) Crimes Act)

Maximum: 20 years’ imprisonment

SNPP: 5 years

Common assault (s 61 Crimes Act)

3 years (NPP 2 years)

Count 3: Break and enter and commit serious indictable offence (intimidation) (s 112(1)(a) Crimes Act)

Maximum: 14 years’ imprisonment

18 months

Count 4: Steal property in a dwelling-house (s 148 Crimes Act)

Maximum: 7 years’ imprisonment

Take and drive conveyance without consent of owner (s 154A(1)(a) Crimes Act)

Destroy or damage property (s 195(1)(a) Crimes Act)

2 years, 6 months

Grounds of appeal

  1. The applicant relied on grounds of appeal filed on 19 May 2025 as follows:

1. The sentencing judge erred in the process by which the Form 1 offences were taken into account on counts 1, 2 and 4.

2. The sentencing judge erred in applying the discount for the applicant’s guilty pleas in relation to the indicative sentences on counts 1, 2 and 4.

3. The sentencing judge erred by failing to make findings in relation to the applicant’s remorse and prospects of rehabilitation.

4. In the alternative to ground 3, the sentencing judge erred in failing to give reasons for making no findings as to the applicant’s remorse and prospects of rehabilitation.

5. The aggregate sentence imposed was manifestly excessive.

  1. Grounds 1 and 2 are interrelated and will be dealt with together. Ground 4 is in the alternative to ground 3.

Circumstances of offending

  1. The factual background set out in the Remarks on Sentence (ROS) is derived from the contents of the Statement of Agreed Facts: R v Koosmen [2024] NSWDC 161 at [5]-[78]. The applicant also gave evidence in the sentencing proceedings. What follows is a summary of the facts.

Facts relevant to Count 1 – Manslaughter

  1. After the applicant finished work at 4:30pm on 1 December 2022, he went to a pub and consumed a schooner of beer, a line of cocaine, and then between a quarter and possibly a half of another schooner of beer.

  2. The applicant returned home between 6:30pm and 7pm and took his father’s Mitsubishi Triton utility. The applicant’s mother called the police and reported that the applicant had stolen the vehicle and was driving whilst disqualified.

  3. At approximately 9pm, police observed the applicant’s vehicle and began following it, with their lights and sirens activated at times. The applicant did not pull over.

  4. At times, the applicant was observed to drive at an estimated speed of 80 to 100km/h in a 60km/h zone. The applicant crossed double lines overtaking other vehicles and went through the intersection at Macquarie Road and Main Road in Fennell Bay at speed and through a red traffic light. Police followed the applicant for approximately 4 km before losing sight of him.

  5. At approximately 10pm, police regained sight of the applicant. At 10:07pm, the applicant drove through a red traffic light at the intersection at Macquarie Road and Main Road for the second time at “significant speed” and collided with the victim, Mr Langham, who was driving through the intersection on a motorcycle, in a T-bone manner. The victim was propelled into a telegraph pole and died at the scene.

  6. The applicant was charged and pleaded guilty to the substantive offence of manslaughter (Count 1).

Facts relevant to the offences on the Form 1 attaching to Count 1

  1. The Form 1 attaching to Count 1 contained three offences.

  2. The applicant had been prohibited from driving his parents’ vehicles because he was disqualified from driving. When the applicant took the keys to his father’s vehicle and drove away, prior to the collision, he did so without his father’s consent.

  3. The applicant was charged with driving a motor vehicle during a period of disqualification, contrary to s 54(1)(a) of the Road Transport Act 2013 (NSW). Such an offence carries a maximum penalty of 12 months’ imprisonment and an automatic disqualification from driving for 12 months.

  4. The applicant was also charged with taking and driving a conveyance without the consent of the owner, contrary to s 154A(1)(a) of the Crimes Act. Such an offence carries a maximum penalty of 5 years’ imprisonment.

  5. Immediately following the collision that caused the death of Mr Langham, the applicant got out of the utility he had been driving and ran from the scene towards premises further along Macquarie Road.

  6. With respect to the applicant immediately leaving the scene and failing to stop and render assistance he was charged with an offence contrary to s 52AB(1) of the Crimes Act. That offence carries a maximum penalty of 10 years’ imprisonment and an automatic disqualification from driving for 5 years. These offences were placed on a Form 1 to be taken into account with respect to Count 1.

Facts relevant to Count 2 – Aggravated break and enter and commit a serious indictable offence (intimidation)

  1. Following the collision, the applicant ran to the rear of premises on Macquarie Road. The premises were divided into two villas. The applicant went to the back deck of the rear villa where he tore open a screen door. The applicant pushed aside the occupant, Mr Wang, with closed fists and entered the house.

  2. The applicant was charged with aggravated break and enter and commit a serious indictable offence, namely intimidation, with the circumstance of aggravation being knowing person/s present (Count 2).

Facts relevant to Count 3 – Break and enter and commit a serious indictable offence (intimidation)

  1. The applicant then broke through the front door of the rear villa and exited the premises to a verandah shared with the second villa. The applicant entered the front villa through a closed but unlocked door. The applicant entered a bedroom before going to the living area and charging towards the occupant, Ms Orman.

  2. The applicant was charged with break and enter and commit a serious indictable offence, namely intimidation (Count 3).

Facts relevant to the offence on the Form 1 attaching to Count 2

  1. Mr Wang had followed the applicant from the rear villa into Ms Orman’s villa. The applicant went to leave but was struggling to open the door. Mr Wang placed a hand on the applicant’s shoulder. The applicant grabbed Mr Wang by the shoulders and shook him.

  2. This resulted in a charge of common assault contrary to s 61 of the Crimes Act. A charge under this section carries a maximum penalty of 2 years’ imprisonment. This offence was placed on a Form 1 to be taken into account with respect to Count 2.

Facts relevant to Count 4 – Steal property in a dwelling-house

  1. The applicant then left the premises on Macquarie Road by jumping a fence into the rear yard of adjacent premises on Jamboree Close. These premises were occupied by Mr King and his adult son. The applicant said to Mr King’s son, “There are people chasing me”. The occupant called police, before realising that the applicant had stolen car keys from the kitchen bench.

  2. The theft of the car keys was charged as a substantive offence of stealing from a dwelling-house (Count 4).

Facts relevant to the offences on the Form 1 attaching to Count 4

  1. The applicant took Mr King’s car, which was in the carport of the premises. The applicant then drove the car into the closed gate across the driveway two or three times before he was able to drive away.

  2. The applicant was charged with the offence of taking and driving a conveyance without the consent of the owner contrary to s 154A(1)(a) of the Crimes Act.

  3. The applicant was also charged with destroying or damaging property contrary to s 195(1)(a) of the Crimes Act. Both offences carry a maximum penalty of 5 years’ imprisonment.

  4. Both of these offences were placed on a Form 1 to be taken into account when passing sentence for Count 4.

Arrest

  1. The applicant drove back towards the scene of the collision. He was recognised by police, directed to stop the car, and apprehended.

  2. The applicant was taken to hospital, and a blood test was taken.

  3. His blood sample was analysed in due course and found to contain:

  1. Blood Alcohol Content: 0.029 g/100ml

  2. Amphetamine: 0.04 mg/L (likely from the metabolism of methylamphetamine)

  3. Methylamphetamine: 0.59 mg/L

  4. Cocaine: <0.005 mg/L

  5. Benzoylecgonine: 0.15 mg/L (being a metabolite of cocaine)

  6. Cocaethylene: <0.005 mg/L (being a by-product of cocaine and alcohol together)

  1. The forensic pharmacologist, Dr Judith Perl, opined that at the time of the impact the applicant would have had a blood alcohol range between 0.044 and 0.067 g/100ml, resulting in some impairment of driving ability. Dr Perl also opined that the blood concentration of methylamphetamine was within a range at which toxic effects could occur. Dr Perl opined that the significant combined effects of alcohol, methylamphetamine and cocaine would have led to very significant impairment of the applicant’s psychomotor functions and a very substantial impairment of his driving ability.

  2. In his evidence, the applicant expressed the belief that there may have been methylamphetamine in the cocaine that he had taken prior to the accident. He denied having consumed any methylamphetamine that evening. He described his memory of the events of the evening as “patchy at best”. He remembered driving at some points but asserted no memory of police putting on their lights or sirens. He described his memory as “flashes” and said that he remembered very little.

  3. The sentencing judge found that whether the applicant took methylamphetamine on the night and forgot that he did so, or whether there was methylamphetamine mixed with the cocaine he ingested, leads to little, if any, reduction in moral culpability with respect to his drug and alcohol self-induced state.

Findings of objective seriousness

  1. With respect to Count 1, the sentencing judge took into account the fact that the applicant was disqualified from driving and had ingested alcohol and illicit drugs. The applicant drove contrary to attempts by his parents to stop him, ignored the lights and sirens of a police vehicle and accelerated away from pursuing police at speed and over double lines in a manner which was clearly dangerous. He crossed through a major intersection contrary to a red light not once, but twice, displaying “an extreme level of recklessness”.

  2. The length of time the applicant was driving and the distance he had travelled was not insubstantial and reflected a real and continuing potential danger to other road users. The sentencing judge also found that the applicant’s failure to stay and render assistance, whilst separately charged, was reflective of an increased moral culpability with respect to the death of Mr Langham.

  3. His Honour found that Count 1 was “very high in the range of objective seriousness”.

  4. With respect to the fact that the applicant fled the scene, the sentencing judge rejected a submission that because the immediate death of the victim rendered it logically futile to provide assistance, the objective seriousness of the offence of failing to stop and assist on the Form 1 should be reduced. His Honour found that the objective seriousness of the offence of failing to stop and assist was “well within the mid-range”.

  5. With respect to Count 2, the sentencing judge took into account that the victim was home, alone, late at night. The applicant forcibly entered the villa and physically assaulted the homeowner. The sentencing judge found that this offence, whilst not at the lowest end of the range of objective seriousness, fell below the mid-range.

  6. The sentencing judge found that Count 3 similarly fell below the mid-range of objective seriousness.

  7. With respect to Count 4, the sentencing judge found that the theft of the car keys was opportunistic and took place while one of the occupants was present. Whilst his Honour considered it an inevitably serious theft because the theft of car keys almost invariably leads to the commission of another substantive offence (stealing a motor vehicle), the sentencing judge assessed the objective seriousness of this offence as “falling somewhere below the mid-range”.

Victim impact statements

  1. The sentencing judge had regard to victim impact statements provided by the mother, father, sister and partner of the deceased.

  2. His Honour recognised the enormity of the loss suffered by each of the victims and the emotional and psychological harm that they have endured. His Honour also recognised the loss to the community at large of the deceased’s good character and contribution to society.

Subjective case

  1. A report by Dr Richard Furst, Forensic Psychiatrist, dated 9 February 2024 was tendered by the applicant in the sentencing proceedings. Dr Furst interviewed the applicant and reviewed his medical records. As mentioned above, the applicant also gave oral evidence in the sentencing proceedings. The applicant also tendered three reference letters.

  2. The applicant was aged 33 at the time of offending and 34 at the time of sentence. For a period of two and a half years, the applicant was in an on-and-off relationship with a woman from whom he ultimately separated in October 2022. He then moved in with his parents. The applicant has two daughters from a previous relationship of 10-11 years’ duration who both reside with their mother.

  3. The applicant left school at about the age of 15 in year 9. He worked as a concreter until his early 30s.

  4. The applicant used cannabis from the age of 13 to approximately the age of 15. He began using amphetamines on weekends on a regular basis around the age of 15. His drug addiction gradually escalated and from his early to mid-20s he was using ice, heroin and cocaine. The applicant’s escalating drug use had an adverse effect on his work from around 2018-2019, which was also a period during which he was arrested and incarcerated on multiple occasions.

  5. The applicant also used anabolic steroids from the age of 16 to 17, with regular cycles over the following 14 years. Dr Furst opined that some of his emotional instability and anger issues dating back to his teenage years have likely been a product of anabolic steroid abuse.

  6. The applicant reported being a moderate drinker of alcohol, generally having a beer after work with the odd occasion of excessive drinking on weekends. Dr Furst noted that in the Reception Screening Assessment when the applicant went into custody in December 2022, he reported drinking 5 to 10 drinks per day in the period leading up to his arrest.

  7. The applicant described having had trust issues in his relationship with the mother of his children and experiencing symptoms of paranoia and anxiety. He took drugs to block out these feelings.

  8. A Mental Health Report prepared by Ms Karen Flanagan, a clinical nurse consultant, on 11 March 2019 indicated that the applicant had been using ice since he was 24 years of age. He had been released from custody on 1 March 2019 and immediately relapsed into using ice on a daily basis. The applicant reported that his drug use was making him anxious and paranoid and that he wished to address his addiction through admission to a rehabilitation centre.

  9. The applicant was referred to the Toronto Drug Court program in 2019 in relation to driving offences. He completed the Drug Court program, including a residential rehabilitation admission for 5 months at Dooralong Transformation Centre in Wyong and 18 months in total at Adele House in Coffs Harbour. In cross-examination, the applicant was challenged on the length of time he was in drug rehabilitation, and he acknowledged that his memory was not good on this point.

  10. The applicant had very little contact with his daughters until late 2021 or early 2022. Over a period of approximately 8 months, the applicant and his former partner worked towards joint custody. However, the applicant had relapsed and engaged in further drug abuse.

  11. Dr Furst had regard to an outpatient assessment by Dr Fieuw-Makaroff, General Practitioner at Booragul, on 30 January 2015. The symptoms which were reported dated back to 2014 and included emotional dysregulation and anger, irritability, insomnia and negative thinking. These dated from when the applicant was approximately 24 years of age. The applicant reported a history of previous suicidal thoughts, including thoughts of crashing his motor vehicle. He had called crisis helplines on a number of prior occasions.

  12. On 5 August 2016, the applicant attended the same medical centre and consulted with Dr Peter McGeoch, General Practitioner. The applicant reported a history of feeling “down” and having poor sleep. He was prescribed two antidepressant medications. Dr Furst suggested that the applicant’s depression and anxiety were clinically significant at that time.

  13. The applicant was admitted to the Mater Hospital in Newcastle in January 2021 after presenting with paranoid delusions against a background of drug use. At the time of admission, the applicant described feeling frustrated, agitated, paranoid and depressed. He believed that people were after him and wanted to get rid of him. He was prescribed anti-psychotic medication and his symptoms resolved fairly rapidly. His mood and affect returned to normal within about two days.

  14. The applicant had mental health follow-up appointments between 19 January 2021 and 12 February 2021. Clinical notes in January 2021 indicate that he had significant anxiety and paranoia symptoms and beliefs that people wanted to kill him. The applicant described these symptoms having persisted since an initial episode of psychosis eight to nine months earlier (an episode of paranoia and delusional thoughts that had lasted three to four days in March or April 2020). At the time of the assessment in January 2021, the applicant said that he thought people from his past were “coming to kill him”. He said that he was not using drugs at the time of his presentation in early January 2021, although he had been using cocaine and ice when he had the previous psychotic episode around April 2020. 

  15. In October 2021, the applicant attempted to hang himself whilst intoxicated with alcohol and cocaine. He was found by his mother with an electrical cord tied around his neck. He was admitted to the Mater Hospital from 9 October 2021 until 11 October 2021. He had not been taking the anti-psychotic medication that had been prescribed during his previous admission in January 2021. Multiple prior episodes of suicidal ideation were noted.

  16. The applicant reported that his moods had been “up-and-down” and that he had ongoing symptoms of paranoia during 2022 and leading up to the offending. However, Dr Furst noted that the various mental health assessments conducted when the applicant went into a custodial institution in December 2022 were indicative of psychotic symptoms not being present earlier in 2022. Dr Furst opined that the applicant’s ability to maintain a relationship in 2022 and the fact that he was still sufficiently functional to work, made the presence of a major mental illness, such as schizophrenic bipolar disorder, unlikely.

  17. With respect to the events of 1 December 2022, the applicant reported to Dr Furst that he felt “paranoid” and “stressed” and that his anxiety had been “through the roof” that evening. He reported only having one schooner of beer and a single line of cocaine. Dr Furst’s impression was that the applicant was “appearing to minimise his alcohol and drug consumption”.

  18. The applicant reported that he could remember “moments” of what happened including driving but that he had an incomplete recollection of the offending. He described thinking he had to “get away” and said that he was convinced of that belief at the time, suggesting he felt paranoid.

  19. Following the offending, the applicant was admitted to John Hunter Hospital. The Discharge Summary did not raise any concerns about his mental health.

  20. Dr Furst said that the applicant’s responses on the Reception Screening Assessment Questionnaire following his admission into custody, and the Kessler-10 in particular, do not support the presence of a pervasive or severe mood disturbance in the period prior to his arrest or the presence of a psychotic illness.

  21. Dr Furst referred to the blood sample which had been analysed in relation to pharmacology/toxicology and expressed the opinion that his driving would have been impaired and also his cognitive state, making acute drug intoxication the most likely cause of his disorientation, confusion and paranoia. Dr Furst opined that the applicant was most likely suffering from a substance-induced mental disorder at the time of his offending, which was a complication of his underlying substance use disorder. Resolution from this drug-induced psychosis within a matter of days was consistent with this diagnosis.

  22. Dr Furst opined that the most important factor in the applicant’s long term rehabilitation was ensuring abstinence from alcohol and drugs of abuse. The applicant would have good prospects of returning to the workforce and a lower risk of reoffending if he remained abstinent from those substances.

  23. The applicant commenced treatment with buprenorphine in custody in around April 2023. The applicant also completed the Positive Lifestyle Program whilst in custody prior to sentencing. The applicant gave evidence in the sentencing proceedings that the internal charges against him whilst in custody related to possession of “a bit of bupe” or buprenorphine and possession of a plastic knife which had been melted into an L-shape for the purpose of effecting tattoos whilst in custody.

  24. The applicant gave evidence that he was stabbed during a previous period in custody. He said that he had been put into protection after that happened, and that he was in protection at the time of sentencing. There were no records produced in relation to those circumstances.

  25. In the course of cross-examination, the applicant agreed that he had been drug affected at the time of an earlier collision where he had taken his mother’s car without her consent and whilst disqualified from driving. He said that he had reflected on how bad drugs were for him whilst in custody for three months following that collision. The applicant agreed that he knew that taking illicit drugs made him do reckless things.

  26. In further cross-examination, the applicant agreed that he had had another collision with a vehicle in which there was a mother and two children and that that matter had not been finalised when the present offending occurred.

  27. The applicant expressed remorse about the offending to Dr Furst and said that it was “massive to him”. He recognised that he “caused a lot of harm” and that “someone lost their life” and said, “it should not have happened”. Dr Furst described the applicant as expressing “a lot of regret and remorse about his offending actions that resulted in the death of the victim on 1 December 2022”. Dr Furst concluded that the applicant “appears to be remorseful”.

  28. The reference letter by the applicant’s mother described him as appearing to be in a paranoid state on the night of the offending. She said that when her son had telephoned her the following day in tears, he said the police had told him he killed somebody, but he could not recall the events. She described him having battled addiction and said that he had expressed remorse to her, saying how sorry he was for what had happened.

  29. A reference letter by the applicant’s ex-partner described the applicant wanting to take full responsibility for his actions by his pleas of guilty. She said that he had expressed to her his sincere remorse for the tragedy and how much he deeply regrets the pain and loss experienced by the victim’s family. She expressed the belief that with the right support and resources, he had the potential to contribute positively to society and rebuild his life.

  30. The sentencing judge also had regard to a third reference letter provided by the applicant’s friend.

  31. In the ROS, the sentencing judge did not refer to the oral evidence of the applicant with respect to remorse. The applicant’s evidence included that he was “deeply regretful and sorry”. He acknowledged that he “took” the deceased from the deceased’s family and friends and said:

“…I know it changed your life. It changed so many people’s lives. I live with shame, sadness, overwhelming guilt. I just – I can’t put into words how sorry I am.”

  1. The sentencing judge summarised the applicant’s criminal antecedents and traffic history at some length: R v Koosmen [2024] NSWDC 161 at [136]-[218]. His Honour observed the applicant’s “continued and repeated ignoring of conditions and constraints imposed upon him by Courts and his persistence in repeatedly driving while suspended or disqualified”. The applicant has an extensive criminal history, including numerous driving offences and infringements spanning decades.

  2. The applicant was subject to conditional liberty at the time of the offending, having been placed on an 18-month Community Correction Order in October 2022. The applicant was also subject to a mandatory interlock order and licence disqualification.

Other findings by the sentencing judge

  1. The sentencing judge found that the applicant’s criminal history and continued disregard for court-imposed sanctions and restrictions on driving required increased weight to be afforded to specific deterrence. It also required consideration of retribution and punishment.

  2. His Honour found that the nature of the offending required appropriate consideration of general deterrence.

  3. The principle of totality also required careful and nuanced consideration. There were numerous victims of “completely different crimes” to be reflected in the ultimate sentence, but his Honour was cognisant that the sentence must appropriately reflect the totality of the criminality.

  4. The sentencing judge made a finding of special circumstances because the applicant will require extended supervision upon his release.

Grounds 1 and 2

  1. Grounds 1 and 2 are related and concern the way in which the sentencing judge approached the determination of the indicative sentences which informed the length of the aggregate sentence. It is therefore convenient to deal with these grounds together. Central to this complaint is asserted error in the process by which the Form 1 offences were taken into account on Counts 1, 2 and 4 and the application of the discount for the applicant’s guilty pleas in relation to the indicative sentences for those counts.

  2. Under s 53A(2)(b) of the CSPA, the indicative sentences represent “the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence.” The aggregate sentencing provision in s 53A “applies once the sentencing judge has determined appropriate sentences for each of multiple offences”: Park v The Queen (2021) 273 CLR 303; [2021] HCA 37 at [27] (Kiefel CJ, Gageler, Keane, Edelman and Gleeson JJ).

  3. Part 3 Division 1A of the CSPA sets out the mandatory discounts to be applied for an offender’s guilty plea depending on the timing of the plea. The applicable provision in the applicant’s case is s 25D(2)(a) which required the sentencing judge to apply “a reduction of 25% in any sentence that would otherwise have been imposed”. The reference to the “sentence that would otherwise have been imposed” is a reference to a sentence reached through the process of instinctive synthesis weighing all of the relevant factors absent the applicable statutory discount for the guilty plea.

  4. Section 33 of the CSPA empowers the court to take further offences on a Form 1 into account when the preconditions in ss 32 and 33 are met. The principles relevant to a consideration of offences on a Form 1 were enunciated in Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 (“the guideline judgment”). The Court (Spigelman CJ, Wood CJ at CL, Grove, Sully and James JJ agreeing) relevantly held:

“[39] The sentencing court is sentencing only for the “principal offence”. It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a “discount” for the use of the procedure. This is not sentencing for the principal offence.

[40] In my opinion, it is pertinent to identify the elements to be considered in determining the sentence for the primary offence upon which the commission of other offences, for which no conviction is being recorded, may impinge. The case law has identified a number of distinct and sometimes overlapping purposes to be served by sentencing. In my opinion, not all these purposes are relevant to the process of taking other offences into account, when sentencing for a particular offence, i.e. the primary offence.

…

[42] The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.

…

[44] The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences. (See R v Kay at [69].)”

  1. The approach set out in the guideline judgment has been endorsed by this Court on several occasions: Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 (Bathurst CJ, Basten JA, Hoeben CJ at CL, Garling and Campbell JJ); Director of Public Prosecutions (NSW) v TH (2023) 307 A Crim R 149; [2023] NSWCCA 81 at [23]-[25] (Beech-Jones CJ at CL, Garling and Yehia JJ agreeing); Nosti v R [2024] NSWCCA 158 at [33]-[34] (Dhanji J, Harrison CJ at CL and Rigg J agreeing); Tukuafa v R [2024] NSWCCA 84 at [86] (Huggett J, Ward P and Chen J agreeing).

  2. It is not necessary to restate the principles in any greater detail. It is, however, important to emphasise the following matters. Firstly, it is not permissible to impose a distinct penalty for the Form 1 offences. Secondly, the fact that a sentence is to be determined by reference to the additional need for personal deterrence and retribution arising from the Form 1 offences, means that the principle of proportionality falls to be assessed by reference to matters which include those additional factors. Thirdly, consideration of those additional factors is part of the instinctive synthesis approach to sentencing explained by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]-[54], in determining the appropriate penalty for the offence for which the offender is convicted. Fourthly, the discount for an offender’s guilty plea is to be applied to the sentence after the Form 1 matters have been taken into account.

  3. The sentencing judge approached the determination of the indicative sentences as follows:

  1. In respect of Count 1, the sentencing judge indicated a starting point “before discount and absent the matters on the Form 1”, of 14 years’ imprisonment. After applying a 25% discount and taking into account the three matters on the Form 1, an indicative sentence of 12 years’ imprisonment was nominated.

  2. In respect of Count 2, the sentencing judge did not nominate a starting point and instead nominated an indicative sentence of 3 years’ imprisonment with an indicative non-parole period of 2 years “after a 25% discount and taking into account the common assault on the Form 1”.

  3. In respect of Count 4, the sentencing judge did not nominate a starting point but nominated an indicative sentence of 2 years and 6 months’ imprisonment “after discount and taking into account the Form 1 matters”.

  1. It was submitted on behalf of the applicant that this approach was erroneous. In respect of Count 1, it was asserted that the sentencing judge set an indicative sentence by reference to a starting point which did not take into account the Form 1 offences attaching to that count, discounted the sentence by 25% and then added 18 months to arrive at the indicative sentence of 12 years’ imprisonment.

  2. In respect of Counts 2 and 4, the applicant contended that the sentencing judge took the same erroneous approach in setting the indicative sentences because his Honour took into account the Form 1 offences after applying the discount.

  3. In support of the contention that the approach adopted by the sentencing judge was erroneous, the applicant relied upon Huang v R [2019] NSWCCA 144 at [41], [45] (Bell P, Bathurst CJ and Hamill J agreeing) (“Huang”).

  4. The respondent argued that the sentencing judge did not adopt an approach inconsistent with Huang, namely his Honour did not apply a sentencing discount and then, after applying that discount, took into account the Form 1 matters.

  5. In Huang, the complaint arose from the way in which the sentencing judge arrived at a sentence for the principal offence. In doing so, the sentencing judge said:

“In respect of the supply prohibited drug, I impose a head sentence of 14 years from which I take 25% for the plea of guilty and to that I add one year which is to represent the matters on the Form 1 document …”.

  1. The respondent’s attempt to distinguish Huang goes no further than a distinction as to form rather than substance. True it is that the sentencing judge in the present matter did not use the words “I add 18 months to represent the matters on the Form 1”, but it is implicit in the approach taken by his Honour, that he identified an additional period of 18 months that was added to the indicative sentence once a discount was applied. This is clear in respect of Count 1 where the starting point nominated was 14 years’ imprisonment. A 25% discount was applied resulting in a reduction of 3 years and 6 months to 10 years and 6 months’ imprisonment. The indicative sentence was then determined to be 12 years’ imprisonment which must mean that the applicant received an additional 18 months’ imprisonment for the Form 1 offences attaching to Count 1.

  2. The respondent’s alternative hypothesis, namely that the sentencing judge, after taking into account the Form 1 offences, considered an appropriate starting point of 16 years’ imprisonment and then discounted it by 25% resulting in an indicative sentence of 12 years’ imprisonment, is unpersuasive. That hypothesis assumes correctness in his Honour’s approach. It is even more unconvincing in circumstances where the sentencing judge did not articulate the way in which the Form 1 offences operated to increase the otherwise appropriate penalty.

  3. Less compelling is the submission that the way in which the sentencing judge approached the indicative sentences, was simply “with economy of language”. The ROS do not demonstrate economy of language or brevity. This was not an ex tempore judgment. The sentencing judge reserved from 9 April 2024 until 26 April 2024. The ROS contain 296 paragraphs. Eighty-two paragraphs are dedicated to the applicant’s criminal antecedents and traffic history and sixty-one paragraphs to summarising “comparable cases”. As to the latter, at [269] the sentencing Judge said of this Court’s decision in Moananu v R [2022] NSWCCA 85: “I am constrained to observe in passing, that there was no mention of THC being present in the blood of that driver in the entirety of the Court of Criminal Appeal judgment.” In fact, Hamill J referred to the presence of “cannabis” in the blood at [60] and, at [77] said “There was also a positive result for cannabis but no opinion was provided as to the impact this may have had on the applicant’s driving.” THC is the active intoxicant in cannabis. Price J explicitly adopted Hamill J’s summary of the offending at [32] and Leeming JA implicitly did so.

  4. I am satisfied that the sentencing judge erred in his approach to the Form 1 matters and the application of the discount in respect of Count 1. It is less clear whether the sentencing judge engaged in the same erroneous approach in respect of Counts 2 and 4. The sentencing judge did not nominate a starting point for the indicative sentences on Counts 2 and 4. The sentencing judge pronounced the indicative sentences for those counts “after discount and taking into account the Form 1 matters”. That sequence may reflect error particularly having regard to the approach adopted in relation to the indicative sentence for Count 1.

  5. Taken by itself, the language used in pronouncing the indicative sentences on Counts 2 and 4 would not necessarily demonstrate error but simply reflect an infelicitous way of expressing the fact that the sentencing judge had taken into account the Form 1 matters.

  6. In any case, having found that error is established in relation to the approach taken in respect of Count 1, I would uphold Grounds 1 and 2.

Grounds 3 and 4

  1. The applicant contended that the sentencing judge erred by failing to make findings in relation to the applicant’s remorse and prospects of rehabilitation. In the alternative, it was contended that the sentencing judge erred in failing to give reasons for making no findings as to the applicant’s remorse and prospects of rehabilitation.

  2. The respondent submitted that the absence of express mention of a relevant factor by a sentencing judge does not inevitably lead to the conclusion that the factor must have been overlooked. The respondent pointed out that the sentencing judge had set out the applicant’s subjective case at some length.

  3. Ultimately, the respondent contended that the sentencing judge was not obliged to make a determination about prospects of rehabilitation and remorse using a particular formulation of words. Instead, it can be inferred that his Honour did have regard to the applicant’s remorse because the applicant’s evidence on that topic was not challenged in cross-examination. The respondent submitted that “there was in substance no issue between the parties regarding remorse by the conclusion of the sentencing proceedings”.

  4. Furthermore, the respondent contended that the ROS, read as a whole, demonstrate that the sentencing judge was not persuaded that the applicant had established that his prospects of rehabilitation were good.

  5. Sentencing judges are obliged to take into account mitigating factors that are “relevant and known to the court”: s 21A(1)(b) of the CSPA. The factors identified in s 21A may properly be described as material and possibly mandatory considerations: Alenezi v R [2023] NSWCCA 283 at [24] (Basten AJA, Adamson JA and Sweeney J agreeing). As I said in Li v R [2023] NSWCCA 112 at [46] (Davies and Fagan JJ agreeing), the sentencing discretion requires more than a “tick a box” or mechanistic approach to the factors set out in s 21A of the CSPA. For instance, in a given case, a sentencing judge might comprehensively refer to the evidence about an offender’s prospects of rehabilitation, such that it can be discerned that the sentencing judge took into account that mitigating factor, notwithstanding that there was no express finding made.

  6. However, where mitigating factors are squarely raised and supported by evidence and submissions, and where competing submissions are made, what is required is “clear and transparent resolution” by the sentencing judge: Masters v R [2019] NSWCCA 233 at [31] (Hamill J, Bathurst CJ and Macfarlan JA agreeing). “The judicial burden is not only to pass judgment but to provide reasons for the judgment. The person who is the subject of the judgment, as well as the community at large, are both entitled to know why a judge has determined to imprison the person and how a particular period of imprisonment has been assessed”: per R A Hulme J, in Porter v R [2019] NSWCCA 117 at [67] (Hoeben CJ at CL and Davies J agreeing).

  7. As Lonergan J (with whom Price and Dhanji JJ agreed) observed in STB v R [2024] NSWCCA 36 at [45]:

“… Whilst it is not appropriate to parse remarks on sentence as if they are statute, and whilst it is obviously necessary to read the remarks on sentence as a whole, it is not sufficient for those remarks to make reference to evidence but then articulate no conclusion at all as to how that evidence informs the relevant aspects of the sentencing exercise. This is particularly so where there have been denials and lies by the applicant and ambiguities within the evidence relevant to those considerations such as has occurred here.”

  1. The respondent’s reliance on Baker v R (2022) 302 A Crim R 60; [2022] NSWCCA 195 (“Baker”), does not advance the respondent’s case. In Baker, the sentencing judge made considerable reference to the mitigating factors, the evidence and her Honour’s findings. Her Honour either addressed the mitigating factors by way of separate headings or otherwise addressed them in her reasons generally: see Baker at [66]-[68] (per Adamson J, N Adams J agreeing, Brereton JA dissenting).

  2. In the present case, the sentencing judge was assisted by the written submissions of the parties, filed prior to the sentencing hearing. In respect of remorse, it was submitted on behalf of the applicant that he had “genuine regret and remorse for his actions”. The Crown submitted, in writing, that the applicant’s remorse was “developing”. It is important to bear in mind in this context that for remorse to be established as a mitigating factor, the applicant must establish two matters, namely an acceptance of responsibility for his or her actions, and an acknowledgement of the injury, loss or damage caused by his or her actions: s 21A(3)(i) of the CSPA.

  3. On 9 April 2024, the applicant gave evidence before the sentencing judge including evidence of remorse. Following that evidence, it was submitted on his behalf that the sentencing judge would find that the applicant was “profoundly and deeply remorseful”. The Crown below made no oral submissions in relation to remorse, nor did she withdraw the submission that had been made in writing.

  4. The cross-examination of the applicant suggested that the applicant was not completely honest and forthright particularly in relation to his drug abuse. Given the interrelatedness of the applicant’s drug misuse and the offence of manslaughter, the applicant’s minimisation of his alcohol and drug consumption and his failure to grapple with the realities of his substance abuse, suggested a failure to accept responsibility for his actions.

  5. Far from being a settled matter, the question of the applicant’s remorse was still in play. On one end of the spectrum, it had been submitted that the applicant had demonstrated profound and deep remorse. On the other end of the spectrum, it was contended that his remorse was “developing”. Given the nature and seriousness of the offence of manslaughter, a finding in respect of the applicant’s remorse was critical in the process of instinctive synthesis. Here, not only did the sentencing judge fail to make a finding in respect of the applicant’s remorse, no reference at all was made to the applicant’s oral evidence about his remorse.

  6. Similarly, competing submissions were made in relation to the applicant’s prospects of rehabilitation. In written submissions relied upon by the applicant in the sentencing proceedings, his prospects of rehabilitation were said to be “reasonable”. Following his evidence, it was submitted that he had “good prospects” of rehabilitation. The Crown below submitted in writing that the applicant’s prospects of rehabilitation should be assessed as “guarded to dim”.

  7. The sentencing judge set out, at some length, the applicant’s criminal and traffic history. It might be inferred that given that history, and the applicant’s history of entrenched substance misuse, the applicant’s prospects of rehabilitation were dim. However, the applicant gave evidence, including evidence about having commenced (for the first time) the buprenorphine program, saying that it was “lifechanging”. He had also completed the Positive Lifestyle Program whilst in custody and expressed a willingness to engage in programs on parole. In those circumstances, it was incumbent on the sentencing judge to make a finding about the applicant’s prospects of rehabilitation. Alternatively, if the evidence was insufficient to make a finding, the sentencing judge should have said so.

  8. The finding of special circumstances on the basis that the applicant required extended supervision, said nothing, one way or another, about what finding the sentencing judge made in respect of prospects of rehabilitation. On the one hand, the extended period of supervision may have been required because the applicant had reasonable or good prospects of rehabilitation justifying a variation of the statutory ratio. On the other hand, the finding of special circumstances may simply reflect the need for a longer period of supervision because the applicant’s prospects of rehabilitation were poor. The finding of special circumstances in this case sheds no light on the sentencing judge’s assessment of the applicant’s prospects of rehabilitation.

  9. I am satisfied that the exercise of the sentencing discretion miscarried because the sentencing judge did not determine the issues that were squarely raised in relation to the applicant’s remorse and prospects of rehabilitation.

  10. I would therefore uphold Ground 3. It is not necessary to further consider Ground 4, which was relied on in the alternative.

Re-sentence

  1. Having determined that error has been established in relation to Grounds 1, 2 and 3, it is not necessary to determine the manifest excess ground.

  2. Where error is established, it is the duty of this Court to exercise the sentencing discretion afresh, taking into account the purposes of sentencing and the factors that the CSPA and any other Act, or rule of law, require or permit: see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ).

  3. An affidavit affirmed by the applicant on 3 July 2025 and an affidavit affirmed by the applicant’s solicitor, Mr Julian Stevens on 7 July 2025 were read on the usual basis without objection. The respondent read the affidavit of instructing solicitor Mr Steven Thomson sworn on 8 July 2025 on the usual basis without objection. I have had regard to the contents and annexures of these affidavits below.

  4. Whilst in custody, the applicant has been engaged in work as a clinic sweeper and as a leading hand in the bakery. The case notes on the applicant’s work performance are very positive. The applicant has demonstrated compliant and respectful behaviour whilst in custody. The applicant has also completed the EQUIPS Foundation program and the CONNECTS program and has indicated a willingness to complete more programs as they become available to him.

  5. Since sentence was imposed, the applicant has only had one custodial infringement on 29 December 2024, namely failing to comply with correctional centre routine.

  6. The applicant is presently receiving the buprenorphine injection. The applicant deposed that he feels “really stable mood wise” and has no current thoughts of substance use, which is “massive”. The applicant is also taking an anti-depressant.

  7. Since entering custody, the applicant has initiated a claim in relation to sexual abuse he suffered as a child at a Church. The applicant has also recently commenced attending upon a psychologist on a fortnightly basis. The focus of the sessions is grief counselling for victims of childhood abuse.

  8. The applicant’s father passed away from cancer recently, while the applicant was in custody. The applicant was moved to a different correctional centre to be closer to his father before he passed but his father’s ill health rendered him unable to travel. The applicant was unable to say goodbye to his father in person.

  9. The applicant deposed that upon release from custody, he wants to re-establish his concreting business, remain on the buprenorphine injection and focus on becoming a permanent figure in his children’s lives.

  10. No challenge was made to the sentencing judge’s findings about the objective seriousness of each offence. I adopt those findings as they accord with my own assessment of the objective seriousness of the offences.

  11. I have taken into account the Form 1 matters attaching to Counts 1, 2 and 4 by increasing the otherwise appropriate sentences for those offences to reflect the additional weight to be afforded to personal deterrence and retribution.

  12. The applicant has a significant traffic record demonstrating repeated non-compliance with court orders. The applicant’s criminal record disentitles him to leniency. He was subject to conditional liberty at the time he committed the offences, an aggravating factor pursuant to s 21A(2)(j) of the CSPA. These matters are relevant to the applicant’s prospects of rehabilitation and his likelihood of reoffending.

  1. I have had regard to the applicant’s subjective case and the progress he has made whilst in custody. The applicant’s participation in the buprenorphine program and his engagement in programs demonstrates a positive change. However, given the applicant’s entrenched substance abuse issues, the nature of the offences and his past criminal history, I am guarded about his prospects of rehabilitation. The applicant’s likelihood of reoffending will in large part depend upon his continued engagement in rehabilitative programs not just in a structured custodial environment but upon release to parole.

  2. I have had regard to the evidence relating to the applicant’s remorse. In particular, I have taken into account his sworn evidence in that regard, which was not challenged in cross-examination. The applicant expressed his shame and acknowledged the impact of his conduct on the deceased’s family.

  3. In addition, Dr Furst reported that the applicant “felt very bad about what had happened” and “it was massive to him”, that it had “affected a lot of people” and he “thinks about it daily”. The applicant also acknowledged he “caused a lot of harm”, that “someone lost their life”, and “it should not have happened”. To that extent, the applicant has demonstrated remorse and some acceptance of responsibility for his actions.

  4. However, when asked about his drug use, the applicant gave evidence, “I’m not concerned about relapsing, to be honest with you. This time I’ve, yeah, I’ve never felt like this. I’ve never had an incident change my life like this. As, yeah, the thought of actually using drugs quite makes me sick, to be honest with you”. The applicant’s evidence in this regard demonstrates a degree of overconfidence that perhaps reflects an absence of full insight into the entrenched nature of his drug misuse and its impact on his actions.

  5. It must be said, however, that it is not unusual for people with entrenched substance misuse issues to fail to grapple with their addictions and the consequences of those addictions. It is sometimes the case that while the stated desire to abstain is genuine and heartfelt, the reality in achieving that goal is more difficult. For someone with an addiction there is rarely a bright line between lack of insight and full insight. Rather, the process is more complicated and nuanced and involves a lengthy period of treatment and self-reflection.

  6. The purposes of sentencing are set out in s 3A of the CSPA. General and specific deterrence and denunciation are weighty considerations given the seriousness of the offending, particularly in relation to the offence of manslaughter. The applicant must be punished and held accountable for his actions. A countervailing factor is the promotion of the applicant’s rehabilitation. It is only by affording the applicant an opportunity for meaningful rehabilitation that the protection of the community is achieved.

  7. Each offence reflects discrete criminal conduct requiring a degree of notional accumulation. In determining the extent of notional accumulation, I have had regard to the principle of totality, noting that the offences essentially constitute one episode of offending.

  8. I make a finding of special circumstances warranting a variation of the statutory ratio. I make that determination because the applicant will require a longer than usual time of supervision in the community to receive treatment for his substance abuse issues. I have also had regard to the fact that there will be some degree of notional accumulation reflected in the aggregate sentence.

  9. The following indicative sentences reflect a discount of 25% to reflect the utilitarian value of the applicant’s guilty pleas:

  1. Count 1 - manslaughter, contrary to s 18(1)(b) of the Crimes Act, an indicative sentence of 10 years and 6 months’ imprisonment.

  2. Count 2 - aggravated break and enter and commit serious indictable offence (intimidation), contrary to s 112(2) of the Crimes Act, an indicative sentence of 2 years and 3 months’ imprisonment with a non-parole period of 15 months’ imprisonment.

  3. Count 3 - break and enter and commit serious indictable offence (intimidation) contrary to s 112(1)(a) of the Crimes Act, an indicative sentence of 18 months’ imprisonment.

  4. Count 4 - steal property in a dwelling-house, contrary to s 148 of the Crimes Act, an indicative sentence of 15 months’ imprisonment.

  1. Pursuant to s 53A of the CSPA, I would impose an aggregate term of imprisonment for 12 years commencing on 1 December 2022 and expiring on 30 November 2034, with a non-parole period of 8 years’ imprisonment. The first date that the applicant will be eligible for release to parole is 30 November 2030.

  2. Accordingly, I would propose the following orders:

  1. Grant leave to appeal.

  2. Allow the appeal.

  3. Quash the sentence imposed on the applicant in the District Court on 26 April 2024, and in lieu thereof sentence the applicant to an aggregate term of 12 years’ imprisonment commencing on 1 December 2022 and expiring on 30 November 2034, with a non-parole period of 8 years’ imprisonment. The first date that the applicant will be eligible for release to parole is 30 November 2030.

**********

Decision last updated: 15 August 2025

Cases Citing This Decision

0

Cases Cited

18

Statutory Material Cited

4

Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Alenezi v The King [2023] NSWCCA 283
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518