KS v The King

[2024] NSWCCA 147

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

KS v R [2024] NSWCCA 147

Hearing dates:

12 April 2024

Decision date:

07 August 2024

Before:

Adamson JA; Stern JA; Wright J

Decision:

(1)   Grant leave to appeal.

(2)   Dismiss the appeal.

Catchwords:

CRIME — appeals — appeal against sentence — manifest excess — where applicant challenged aggregate sentence on ground that indicative sentence was manifestly excessive — where applicant did not submit that aggregate sentence was manifestly excessive — where patent error was not alleged — whether alleged manifestly excessive indicative sentence caused sentencing discretion to miscarry — whether Court could re-exercise sentencing discretion on such basis

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 15A

Crimes Act 1900 (NSW), ss 18, 33

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 53A, 54D

Criminal Appeal Act 1912 (NSW), s 5

Cases Cited:

AJ v R [2023] NSWCCA 158

Aryal v R [2021] NSWCCA 2

Davidson v R [2022] NSWCCA 153; (2022) 300 A Crim R 214

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

House v The King (1936) 55 CLR 499; [1936] HCA 40

JM v R [2014] NSWCCA 297

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

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

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

Noonan v R [2021] NSWCCA 35

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

PN v R [2024] NSWCCA 86

R v DB [2010] NSWSC 812

R v Wolff (1914) 10 Cr App R 107

Ritchie v R [2023] NSWCCA 153

Stoeski v R [2014] NSWCCA 161

The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

Young (a pseudonym) v R [2021] NSWCCA 163

Category:

Principal judgment

Parties:

KS (Applicant)
Rex (Respondent)

Representation:

Counsel:
S Odgers SC (Applicant)
G Newton SC (Respondent)

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

File Number(s):

2021/266751

Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 578A of the Crimes Act 1900 (NSW), the publication or broadcasting or dissemination of any material that identifies or is likely to lead to the identification of the applicant, the applicant’s parents, the applicant’s siblings and any young person in connection with these proceedings is prohibited.

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

KS v R (No 1) [2023] NSWSC 696

Date of Decision:

23 June 2023

Before:

Yehia J

File Number(s):

2021/266751

HEADNOTE

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

KS (the applicant) pleaded guilty in the Children’s Court of New South Wales to one charge of murder and one charge of causing grievous bodily harm with intent to cause grievous bodily harm. The offending occurred in September 2017, after the applicant overheard the deceased and the victim of the grievous bodily harm offence in the lane behind his house yelling abuse about one of his friends. The applicant took a knife, which he had purchased earlier that month, into the lane and stabbed the deceased once in the chest, killing him, and stabbed the victim in the shoulder and hip.

The applicant was sentenced by Yehia J (the sentencing judge) on 23 June 2023 to an aggregate term of imprisonment of 16 years, with a non-parole period of 11 years. In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge indicated that the sentences that would have been imposed for each offence had separate sentences been imposed were a term of 14 years and 3 months for murder, and 7 years and 6 months for the grievous bodily harm offence.

The applicant sought leave to appeal against his sentence on the ground that the “aggregate sentence was imposed in error by reason that the sentencing judge determined a manifestly excessive sentence for the offence of cause grievous bodily harm with intention to cause grievous bodily harm”. He did not submit that the aggregate sentence was itself manifestly excessive. He relied on AJ v R [2023] NSWCCA 158 and submitted that the consequence of such an error in the indicative sentence was that the sentencing discretion had miscarried and he was entitled to be re-sentenced.

The Court considered the question of principle raised by the applicant’s submissions: whether manifest excess in relation to an indicative sentence, in the absence of an allegation that the aggregate sentence is manifestly excessive, requires the Court to set aside the aggregate sentence and re-exercise the sentencing discretion. It then addressed the applicant’s submission that the indicative sentence for the grievous bodily harm offence was in fact manifestly excessive.

The Court held (Adamson JA, Stern JA and Wright J) granting leave to appeal but dismissing the appeal:

Issue 1: whether manifest excess in an indicative sentence is sufficient to impugn the aggregate sentence

1. The characterisation of an indicative sentence as “manifestly excessive” involves a misconception. This kind of error arises where the result (the aggregate sentence) is unreasonable or plainly unjust but no relevant error is discoverable: at [66].

2. Even if an indicative sentence, viewed in isolation, is excessive this will not, of itself, be sufficient to impugn an aggregate sentence which is not alleged to be manifestly excessive. In the absence of patent error, an offender can only successfully impugn an aggregate sentence if they demonstrate that the aggregate sentence is manifestly excessive. This is the consequence of s 53A of the Crimes (Sentencing Procedure) Act: at [72]-[74].

   PN v R [2024] NSWCCA 86; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; House v The King (1936) 55 CLR 499; [1936] HCA 40, applied.

   AJ v R [2023] NSWCCA 158; Young v R [2021] NSWCCA 163, distinguished.

3. Where an identifiable (and therefore patent) error affects an indicative sentence, the resulting sentence is erroneous as a matter of process (rather than result). In such a case, it is not necessary to address whether the resulting aggregate sentence is, too, erroneous as the patent error is sufficient to require the sentence to be set aside: at [62]-[63].

Ritchie v R [2023] NSWCCA 153, cited.

Issue 2: whether the indicative sentence imposed for the grievous bodily harm offence was manifestly excessive

1. In light of the conclusion on issue (1) above, it was not necessary to review the indicative sentence imposed as, even if it were found to be manifestly excessive, it would not be appropriate for the aggregate sentence to be quashed on that basis: at [75]-[76].

2. Nevertheless, the indicative sentence for the grievous bodily harm offence was not manifestly excessive. The sentencing considerations (including the objective seriousness of the offence, general deterrence and denunciation, and the applicant’s subjective case) pointed in different directions and it was open to the sentencing judge to indicate the sentence of 7 years and 6 months imprisonment: at [78]-[82].

Judgment

1. THE COURT: By a notice of appeal filed on 31 January 2024, the applicant, KS, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence imposed upon him in respect of two offences by Yehia J (the sentencing judge) on 23 June 2023. The aggregate sentence imposed was for a term of 16 years’ imprisonment, commencing on 17 September 2021 and expiring on 16 September 2037, with a non-parole period of 11 years expiring on 16 September 2032: R v KS (No 1) [2023] NSWSC 696.

2. The pseudonym is used to give effect to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

Background

3. In the Children’s Court of New South Wales, the applicant pleaded guilty to one charge of murder and one charge of causing grievous bodily harm with intent to cause grievous bodily harm (the grievous bodily harm offence).

4. The sentence proceedings took place in the Supreme Court on 21 and 22 June 2023. The sentence was imposed the following day.

5. In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge indicated that the sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence were, after allowing a discount of 25% for the early guilty pleas, as follows:

Seq	Offence	Maximum Penalty	Indicative Sentence
1	Murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW)	Life imprisonment	14 years and 3 months
5	Causing grievous bodily harm with intent to cause grievous bodily harm contrary to s 33(1)(b) of the Crimes Act	25 years	7 years and 6 months

6. There was no applicable standard non-parole period for either offence as the applicant was under the age of 18 years at the time of the offending: Crimes (Sentencing Procedure) Act, s 54D(3).

Application for leave to appeal

7. A notice of intention to appeal was filed on 19 July 2023 and the notice of appeal was filed on 31 January 2024.

8. If granted leave, the applicant sought to rely on the following ground of appeal:

“The aggregate sentence was imposed in error by reason that the sentencing judge determined a manifestly excessive sentence for the offence of cause grievous bodily harm with intention to cause grievous bodily harm.”

9. This ground of appeal did not involve the contention that the aggregate sentence was itself manifestly excessive. Indeed, Mr Odgers SC, who appeared on behalf of the applicant, expressly eschewed such a submission. This ground raises important questions of principle regarding the relationship between an aggregate sentence and its constituent indicative sentences.

10. Before turning to those matters of principle, it is necessary to review the sentencing judge’s remarks on sentence. Since there was no challenge to the sentencing judge’s findings or assessments and there was no contention that the aggregate sentence was manifestly excessive, the review of the remarks may be briefer than would otherwise be the case.

Remarks on sentence

Introductory matters

11. The sentencing judge began by noting the tragic nature of the circumstances of the offending and that the crimes were committed by a 16-year-old boy using a knife but were not “adult acts”, as his self-regulation and capacity for mature reasoning about the consequences of his actions were not fully developed. Her Honour noted the maximum penalties for the two offences and the fact that there was no applicable standard non-parole period, given the age of the applicant. It was recorded that the utilitarian value of guilty pleas justified a 25% discount.

12. Her Honour referred to the victim impact statements and acknowledged the grief and harm caused.

Circumstances of the offending

13. The circumstances of the offending, which were contained in a statement of agreed facts, can be relevantly summarised as follows. The applicant, the deceased and the victim of the grievous bodily harm offence (the victim) all lived in the same area and there had been issues between the applicant’s group of friends and the friends with whom the deceased and the victim spent time. These issues were reflected in online abuse and threats. There was also, to the applicant’s knowledge, damage to the property of one of his friends although there was no evidence to link the deceased or the victim to that damage.

14. In June and July 2021, there was an online argument which resulted in an organised fist fight between the deceased and the applicant.

15. In early September 2021, the applicant’s mother and stepfather confiscated a knife from him. He subsequently purchased a second knife, about 30 cm in length and black in colour. Her Honour accepted that the applicant purchased the knife believing that he needed it for his own protection and without the intention of harming the deceased or any other person with it.

16. On the evening of 17 September 2021, the deceased and the victim were drinking alcohol with a group. They left to attend a friend’s birthday party. Their route included the rear lane behind the applicant’s house. The applicant and his mother and stepfather were sitting around a fire inside their backyard when they heard the deceased and the victim and another person yelling out abuse about the applicant’s friend, who lived nearby. Despite the warnings issued by his mother and stepfather that he not go into the rear lane, the applicant went into the house and (without his parents’ knowledge) took his knife to the rear lane, where it was very dark.

17. In the lane, the applicant approached the deceased, the victim and the other person and stabbed the deceased once in the chest, causing him to fall to the ground. The applicant said nothing before doing so. The deceased died soon afterwards.

18. The applicant, still holding the knife, approached the victim from behind and stabbed him in the rear left shoulder. The victim turned around and the applicant then stabbed him in the left hip. The victim tried to run away, jumping a hedge, but after realising the extent of his injuries he sought help at a house nearby and collapsed on the front porch. The other person who had been with the deceased and the victim followed and, on finding the victim, called 000.

19. At about this point, the applicant went to the front door of the residence of a friend who lived nearby and spoke to him. He appeared panicky, was talking fast and shaking. The applicant said: “[The deceased’s] been stabbed...I don’t know what to do”. Her Honour accepted that, at that time, the applicant was fully aware of what he had done but not aware of the extent of the harm inflicted.

20. Immediately following the stabbing, the applicant called another close friend and, sounding distraught, made admissions to the offending, saying that he was hiding in the backyard. Subsequently, the applicant’s mother called him and told him that the deceased was dead. The applicant called the close friend again and said: “He’s dead …, I killed [the deceased], he’s dead.”

21. Police and ambulance attended the scene shortly after and found the applicant who was cautioned and placed under arrest. The applicant declined to tell police what had happened, but, when asked about the weapon, he led police to the place where the knife was and showed it to them.

22. An autopsy of the deceased revealed that the cause of death was a stab wound to the chest that penetrated the lung and heart.

23. The victim was admitted to hospital and remained there for five days. He suffered four wounds to his central chest, left hip, lower back/flank and rear left shoulder. He underwent surgery in which an emergency sternotomy (splitting of sternum) was performed; his wounds were explored, cleaned and sutured; lacerations to his diaphragm and internal mammary/thoracic artery (below the heart) were repaired; pericardial effusion (removal of fluid around the heart) was completed; and a wedge resection of the right middle lobe of his lung was repaired due to laceration.

24. Although the Crown contended that the applicant stabbed the deceased with intent to kill, the sentencing judge sentenced the applicant on the basis that, at the time of stabbing the deceased, he intended only to cause grievous bodily harm to him.

Assessment of objective seriousness

25. The sentencing judge’s assessment of objective seriousness of the murder offence was summarised at [71] as follows:

“Because of the lack of planning and premeditation and the absence of an intention to kill, I find that this offence falls below the middle of the range of objective seriousness but not at the lower end of the range. I have made this finding because the offence involved the use of a weapon in a public place and while not premeditated or planned, there was a degree of deliberation in leaving the premises armed with a knife.”

26. In relation to the objective seriousness of the grievous bodily harm offence, her Honour took into account the nature of the injury which was found to be serious but did not result in permanent incapacitation and all the other relevant circumstances, concluding at [76]:

“In determining the objective seriousness of the present offence, I have had regard to the fact that the offence involved use of a weapon. This aggravating factor increases the objective seriousness of the offence. I take into account that [the applicant] inflicted four stab wounds. I have had regard to the lack of planning and impulsivity of the conduct. I find that this offence falls below the middle of the range of objective seriousness but not at the lower end of the range because there was a degree of deliberation in taking possession of the knife and there were multiple stab wounds.”

Applicant’s subjective case

27. The sentencing judge referred to and summarised the information concerning the applicant’s background provided in a report by Dr Collins, clinical and forensic psychologist, a Progress Education Report from Girrakool Education and Training Unit and a report prepared by Juvenile Justice, as well as a letter from the applicant’s mother, references and various certificates of completion.

28. It was noted that the applicant was the only child of his parents who separated when he was seven months old and that he had not had any contact with his father for the last six years. On the other hand, the applicant’s relationship with his mother was said to be positive and loving and the applicant described her new partner as “pretty fair” and denied any major problems in their relationship.

29. The applicant described his childhood as “alright” but said that he did not interact much with his peers and told Juvenile Justice that his poor decision-making before going into custody was due to depression. Her Honour noted comments by Dr Collins that the applicant wanted to write to the families of the deceased and the victim but he struggled to articulate how sorry he was about his offending.

30. The sentencing judge found that the applicant did not make many friends at the primary school he attended and was the victim of verbal and physical bullying which ended when he transferred to high school in Year 7. Her Honour said that at the end of Year 8, his interest in school deteriorated and he was introduced to drugs. He eventually left school in Year 11 and struggled finding employment during the Covid-19 pandemic.

31. The sentencing judge found it noteworthy that the applicant commenced using drugs, primarily cannabis, at a young age when he was experiencing symptoms of depression, and that he was smoking cannabis on a daily basis at the time of the offending. Her Honour considered that the material established a long-standing pattern of drug use, predominantly cannabis but there were also periods of abusing Valium, hallucinogens and other medications.

32. At the end of Year 10, the applicant’s friendship group changed and he began associating with the friend who lived nearby and others who are older than he was. This friendship was characterised by heavy cannabis use and involved “dramas and fights” with others including the deceased. Her Honour found that the applicant took the side of the friend who lived nearby and was loyal to him and said that this loyalty was relevant contextually to his actions on 17 September 2021. It was said to be against this background, and cognisant of the history between the deceased and the friend who lived nearby, that the applicant armed himself with a knife and attacked the deceased and the victim.

33. The sentencing judge accepted that the applicant wanted the conflict between those persons to end and he bought the knife for protection. Her Honour said at [96]:

“On the night of the offences, [the applicant] said that he heard some males go past his home when he was in his backyard with this mother and stepfather. He grabbed his knife and went out through the back gate. He felt “enraged” as he believed that they were going to his friend’s home to cause some damage. He went on to say that it was an “impulse decision” and acknowledged that he had not planned his actions or thought about the consequences. Observations of the demeanour of [the applicant] shortly after the event, support these representations.”

34. The sentencing judge accepted that the applicant was immature even at the age of 18 and that it was reasonable to infer that his degree of immaturity was far greater at the age of 16.

35. As to the clinical assessment of the applicant, her Honour recorded Dr Collins’ opinions that:

1. in the two months prior to the offending, the applicant was experiencing clinical depression, consistent with a diagnosis of major depressive disorder and he had attempted suicide on two occasions and felt hopeless;

2. it was apparent that he did not plan to engage in the offences and he impetuously reacted to hearing others walking near his friend’s home when his mental state was evidently poor; and

3. the applicant had expressed remorse for his conduct and demonstrated appropriate victim empathy.

36. The sentencing judge noted that since being on remand, the applicant’s mood had improved. He was supported therapeutically whilst withdrawing from drugs and was prescribed anti-depressants and drugs to assist with sleep. Her Honour also noted that the applicant had engaged well with therapy and education and that Dr Collins recommended that he remain in youth detention until 21.

37. The sentencing judge recorded that, while in custody, the applicant had started Year 11 but ceased because he wished to pursue more practical training. He had completed a Certificate II in horticulture and was engaging in a hospitality course. A representative of Confit Pathways who mentored the applicant provided a positive reference. The applicant engaged in extra-curricular activities including athletics, literacy and numeracy, gym and well-being programs and his interactions were positive and respectful.

38. The sentencing judge found that:

1. the applicant had reflected on the enormity of his actions;

2. he was remorseful for taking the deceased’s life and causing the injuries to the victim;

3. he demonstrated victim empathy and his plea of guilty reflected contrition and avoided retraumatising the victim and the family of the deceased;

4. he would live with guilt far longer than any sentence that was imposed;

5. the plea also demonstrated a willingness to facilitate the administration of justice as did his cooperation with police by leading them to the knife immediately on his arrest;

6. the reports of his progress in custody demonstrated he was capable of reform;

7. he had no criminal record and this was the first time he had come before the courts for any criminal offence; and

8. he had very good prospects of rehabilitation and was unlikely to reoffend.

39. The sentencing judge then recorded the relevant principles concerning the significance of the youth and immaturity of the applicant, referred to the principles in s 6 of the Children (Criminal Proceedings) Act and took all of those matters into account, along with the purposes of sentencing and the evidence of the applicant’s mental health issues. In addition, her Honour noted that the offending conduct was extremely serious, involving as it did the use of a knife in a public place, occasioning death to one victim, and grievous bodily harm to another, so that general deterrence remained a relevant consideration and the conduct must be denounced and punished. Furthermore, the onerousness of conditions when the applicant was transferred to an adult gaol were adverted to. Her Honour noted that the sentencing considerations pointed in different directions.

40. The sentencing judge then considered a number of cases said to be comparable to the present. These were focused upon the sentences for murder offences but one case, R v DB [2010] NSWSC 812, involved an overall sentence of 24 years with a non-parole period of 16 years for an offence of murder and an offence of wounding with intent to murder.

41. The sentencing judge considered that, given the circumstances in which the offences in the present case occurred, the indicative sentences should not be wholly cumulative. Nonetheless, because there were two separate victims and separate acts of violence, there would be a measure of notional accumulation. Her Honour said at [142]:

“In determining the extent of that accumulation, I have had regard to the principle of totality. The aggregate sentence must be a proportionate sentence, reflecting the objective seriousness of each offence, the relevant purposes of sentencing, and the young person’s subjective case and reduced moral culpability.”

42. There was a finding of special circumstances so as to justify a departure from the statutory ratio for the non-parole period. The ratio between the non-parole period and the total term was 69%.

43. There was no challenge in relation to any of the sentencing judge’s statements of principle, her Honour’s relevant findings, the application of relevant principles in the specific circumstances of the present case or the consideration of comparable cases.

The appeal

44. Mr Odgers submitted that the indicative sentence for the grievous bodily harm offence was manifestly excessive and that, accordingly, the sentencing discretion miscarried with the consequence that the applicant was entitled to be re-sentenced in accordance with Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37, notwithstanding that it was not submitted that the aggregate sentence itself was manifestly excessive.

45. While Mr Odgers accepted that an indicative sentence is not amenable to appeal, he submitted that any error in the indicative sentence (such as that it was manifestly excessive) justified the conclusion that the substructure upon which the aggregate sentence was based was faulty. He submitted that this approach had been endorsed by this Court in AJ v R [2023] NSWCCA 158 (AJ) at [37]-[38] (Button J, Simpson AJA and Hamill J agreeing), and that this Court was, accordingly, obliged to follow that approach.

46. The Crown submitted that the approach for which Mr Odgers contended was at odds with well-established authority and involved a misreading of AJ. Further, it submitted that the sentence indicated for the grievous bodily harm offence was not, in any event, excessive, much less manifestly so.

47. We are not persuaded, for the reasons given at the conclusion of this judgment, that if the sentence indicated in respect of the grievous bodily harm offence, had actually been imposed as an individual sentence and not an integer of the aggregate, it would have been manifestly excessive.

48. In deference to the parties’ submissions, we propose to address the question whether “manifest excess” in relation to an indicative sentence, in the absence of an allegation that the aggregate sentence is manifestly excessive, requires this Court to set aside the aggregate sentence and re-exercise the sentencing discretion.

The significance of indicative sentences when compared with an aggregate sentence

PN v R

49. Since the present application was heard by this Court, the Court’s decision in PN v R [2024] NSWCCA 86 (PN) has been delivered. A similar argument to that put by Mr Odgers in the present case was rejected in PN. In that case, the argument was not determinative as the indicative sentence in PN was not held to be manifestly excessive. However, the Court (Wilson J, Chen and Huggett JJ agreeing) addressed the principles with respect to a “ground of appeal that raises a complaint of manifest excess with respect to an indicative term without a corresponding complaint as to the aggregate sentence”. Wilson J said:

“47 Section 3 of the Crimes (Sentencing Procedure) Act defines a sentence’ that is imposed upon an offender as ‘the penalty imposed for an offence’. Section 53A of the Act provides for the imposition of an aggregate sentence where a court is sentencing an offender for more than one offence. In those circumstances the court may, pursuant to s 53A(1), impose an aggregate sentence ‘instead of imposing a separate sentence of imprisonment for each’ individual offence. Section 53A(2)(b) requires the sentencing court to make a record of ‘the sentence that would have been imposed for each offence […] had separate sentences been imposed instead of an aggregate sentence’. The indicative sentence is not of itself the sentence of the court, as it is not ‘the penalty imposed for an offence’. It should not be expressed as a sentencing order: R v Clarke [2013] NSWCCA 260 at [50]-[52]; Cullen v R [2014] NSWCCA 162 at [25]-[40]; JM v R [2014] NSWCCA 297 at [39].

48   This Court is empowered to hear appeals against ‘a sentence’ pursuant to the Criminal Appeal Act. The meaning of the word ‘sentence’ in the context of appeal proceedings is much broader than the definition provided by the Crimes (Sentencing Procedure) Act. Despite the breadth of the definition given by s 2 of the Criminal Appeal Act however, it does not encompass an indicative sentence. Axiomatically, this Court has no jurisdiction to consider an appeal against an indicative sentence. That is not to say that error in the determination of an indicative sentence is irrelevant to an appeal against an aggregate term of imprisonment, since the former could have a material impact on the latter. That is what I understand Button J to have said in AJ v R, at [33]. The position with respect to indicative sentences is as stated by R A Hulme J in JM, at [40(11)]:

‘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].’

49   On that basis, error in an indicative term does not, without more, give rise to the Court’s power to proceed to re-sentence. For that power to be enlivened, a further proposition, that the error in the determination of the indicative term led to error in the aggregate sentence that was imposed, must be established. Having so concluded, although I would grant leave to advance ground 1, it should be dismissed.”

50. We respectfully agree with Wilson J in PN.

AJ v R

51. Mr Odgers relied on this Court’s decision of AJ in support of his submission that an error in an indicative sentence can justify appellate intervention.

52. In AJ, there were two grounds of appeal: first, that the sentencing judge erred in indicating sentences close to the maximum penalties for the offences which led to error in the process of determining the aggregate sentence; and, second, that the aggregate sentence was manifestly excessive by reason of the error alleged in the first ground.

53. Button J said in AJ:

“30 It is trite law that only the aggregate sentence can be impugned directly by an appeal, simply because it is the only sentence actually imposed: see JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40]; Kerr v R [2016] NSWCCA 218 at [114].

31   Having said that, the statutory system of aggregate sentencing was introduced to relieve sentencing judges of legalistic and formalistic requirements with regard to setting cascading or interlocking commencement and expiry dates of sentences: see generally JM v R at [39]; R v Rae [2013] NSWCCA 9 at [43]-[45]; Truong v R [2013] NSWCCA 36 at [231]; and, more recently, Sharma v R [2022] NSWCCA 190 at [4].

32   It was not intended to change sentencing law substantively, including the availability of different kinds of appeal against sentence: see PG v R [2017] NSWCCA 179 at [90].

33   It is unsurprising in those circumstances that this Court has shown itself comfortable with grounds that attack aggregate sentences on the basis of the asserted errors in the indicative sentences that underpinned them: for a recent example, see Davidson v R [2022] NSWCCA 153 at [16], [39]-[43].

34   Here, it was inevitable that, for every offence, a very substantial indicative sentence would be provided, including when compared to the available maximum penalty. But I cannot accept that, with regard to count 1 and count 3, it could have been appropriate to adopt a starting point that was only two months short of the maximum penalty. Grave though the offending was in many ways, and limited though the subjective case was in some ways, I cannot accept that an instinctive synthesis of all relevant objective and subjective circumstances could have led appropriately to such a relationship between the starting point and the applicable maximum penalty.

…

37   Contrary to the submission of the Crown, the starting points of two of the indicative sentences upon which the aggregate sentence is based must be erroneous. Whether that is the result of arithmetical error, or inadequate reflection upon the starting point, or over-emphasis on objective features adverse to the applicant and under-emphasis on subjective features favourable to him, is of little moment. I am satisfied that a significant portion of the substructure upon which the aggregate sentence is based is faulty. That means, in my opinion, that this Court should turn to consider resentence.

38   Finally, to be clear, the question of whether the aggregate sentence is manifestly excessive need not be determined. All that the parties said about that topic will be reflected upon by me in the process of considering resentence.”

(Emphasis added.)

54. Mr Odgers placed great emphasis on the passage in bold from the extract above. He submitted that what AJ established was that, whether or not an aggregate sentence was manifestly excessive, an error in the indicative sentence was sufficient to require this Court to re-sentence the applicant. He submitted further that the nature of the error which affected the indicative sentence was irrelevant and thus there was no reason to distinguish the error established in AJ (where the inescapable inference was that the sentencing judge had applied the incorrect maximum penalty or misapprehended the principles in relation to imposing a penalty so close to the maximum) from the alleged error in the present case (alleged manifest excess in the indicative sentence). Mr Odgers also relied, by analogy, on the authorities which establish that an error in the integers germane to the exercise of a sentencing discretion can cause the discretion to miscarry and require it to be exercised anew by this Court. He submitted that unless this Court is satisfied that the error had no impact on the ultimate sentence (in this case, the aggregate sentence), then the appeal must be allowed and the applicant re-sentenced.

55. Even though he accepted that there was a substantial degree of notional concurrence (because the indicative sentence for the grievous bodily harm offence added so marginally to the aggregate, having regard to the indicative sentence for murder), Mr Odgers submitted that the alleged error in the indicative sentence for the grievous bodily harm offence had the “capacity” to affect the outcome and there was a “real possibility” that it did so, which ought lead this Court to set aside the aggregate sentence: Newman (a pseudonym) v R [2019] NSWCCA 157 at [11] (Basten JA).

56. Mr Odgers also referred to Young (a pseudonym) v R [2021] NSWCCA 163 (Young) in which similar errors to those identified in AJ were made by the sentencing judge, in that the sentences indicated were so inappropriately close to the maximum penalties that the error was patent. There was also an additional patent error in that the sentencing judge had applied a non-existent standard non-parole period. In Young, Beech-Jones J said, at [85]:

“In light of the applicant’s success on ground 1 [applying a non-existent standard non-parole period to the indicative sentence] it is not necessary to address the complaint of manifest excess in ground 3. The same applies to ground 2 although I observe that the process for fixing indicative sentences for sequences 27, 29 and 26 clearly miscarried. Prior to allowance for the applicant’s plea the sentences for those offences were either close to or at the maximum, yet the sentencing judge found that their objective seriousness was either at the mid-range or slightly above the mid-range. No matter what view one took of the applicant’s subjective case, those assessments could not justify those indicative sentences.”

57. There is a superficial attraction to Mr Odgers’ submission that an error in the indicative sentence, such as manifest excess, infects the legality of the aggregate, unless it can be positively established that it did not affect the outcome. So, too, is there apparent force in the argument that support for this proposition can be found in the wording of Button J’s judgment in AJ and, in particular, his Honour’s observation that it was not necessary to address the ground that the aggregate sentence was manifestly excessive. However, for the following reasons, Mr Odgers’ submissions must be rejected as they are at odds with fundamental and well-established principles of sentencing law, to which we now turn.

The relevant principles and their application

58. The classic statement of the principles in relation to appellate review of the exercise of the sentencing discretion is found in House v The King (1936) 55 CLR 499 at 504-5; [1936] HCA 40 where Dixon, Evatt and McTiernan JJ said:

“But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone L.C.J. said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R. v. Sidlow). Lord Reading L.C.J. said the court will not interfere because its members would have given a less sentence, but only it the sentence appealed from is manifestly wrong (R. v. Wolff). Lord Hewart L.C.J. has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R. v. Dunbar). See, further, Skinner v The King and Whittaker v. The King.”

(Footnotes omitted.)

59. Based on that passage as summarised in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (Markarian) at [25] by Gleeson CJ, Gummow, Hayne and Callinan JJ, it is evident that the errors in the exercise of the sentencing discretion which may attract appellate intervention are limited to the following:

1. the sentencing judge acted upon a wrong principle;

2. the sentencing judge allowed extraneous or irrelevant matters to guide or affect the outcome;

3. the sentencing judge mistook the facts;

4. the sentencing judge did not take into account some material consideration; and

5. in the absence of patent error (the kind of error in (1)-(4) above), the result is so unreasonable or plainly unjust that error, which “may not be discoverable”, can be inferred.

(the Markarian principles.)

60. The type of error identified in category (5) involves latent error and includes the conclusion that the sentence is “manifestly excessive” or “manifestly inadequate”: Markarian at [25]. This formulation appears to be derived from Lord Reading LCJ’s description in R v Wolff (1914) 10 Cr App R 107 of the sentence being “manifestly wrong”, which was quoted by the High Court in the above passage from House v The King. Reflecting the wording adopted by the High Court, it is well established that a sentence will only be manifestly excessive (or manifestly inadequate) if it is unreasonable or plainly unjust: see the authorities referred to in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing). As the High Court said in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J), manifest excess is a conclusion.

61. We reject Mr Odgers’ submission that, because Markarian pre-dated the introduction of s 53A of the Crimes (Sentencing Procedure) Act (which authorised the imposition of aggregate sentences), it says nothing about the approach which this Court ought take to a challenge to an aggregate sentence. Markarian set out how the principles enunciated in House v The King applied to the exercise of a sentencing discretion and how that exercise of discretion could be reviewed on appeal. The nuance provided by the introduction of aggregate sentences can readily be accommodated within these principles, thereby giving Markarian continuing relevance in a case such as the present.

62. In AJ, there was an identifiable (and therefore patent) error which affected the indicative sentences: the sentencing judge had plainly either applied the incorrect maximum penalty for counts 1 and 3 or misapprehended the principle that a penalty close to the maximum is to be reserved for the worst type of case, taking into account the nature of the crime and the circumstances of the criminal (The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [18] (Bell, Gageler, Keane, Nettle and Gordon JJ)). Because two of the indicative sentences involved patent error, the resulting aggregate sentence was necessarily erroneous as a matter of process (rather than result). It was apparent that the sentencing judge acted on the wrong principle (category (1) of the Markarian principles) because the indicative sentences were very close to the maximum penalties but the subjective and objective circumstances were not in the worst category and therefore, the length of the indicative sentences was unwarranted.

63. Because the process in AJ was erroneous, it was not necessary to address whether the result, too, was erroneous. The reason for this was that the result (the aggregate sentence) was necessarily affected by the error in the process, irrespective of whether the aggregate sentence, too, was independently erroneous (by being itself manifestly excessive). AJ was simply an example of a case where, patent error having been established, it was not necessary to address whether there was also latent error, the former being sufficient to require the sentence to be set aside and the sentencing discretion to be exercised afresh. As Adamson JA (McNaughton J agreeing) said in Ritchie v R [2023] NSWCCA 153 (Ritchie) at [13]:

“… manifest excess is a conclusion which does not depend on patent error. Thus, if the sentence is to be set aside for patent error (because one of the other grounds has been made out), there is usually no utility in expressing a view that the set-aside sentence was manifestly excessive, in circumstances where the Court on re-sentence is obliged to impose a sentence which is not manifestly excessive.”

64. We regard Young as illustrating only that where patent error in fixing indicative sentences has been established, the aggregate sentence must be set aside and the applicant re-sentenced. In such a case, it is not necessary to address a ground of manifest excess (for the reasons given in Ritchie).

65. In the present case, there was no ground of appeal that the aggregate sentence was affected by any of the types of error identified in (1) to (4) of the Markarian principles. Further, Mr Odgers expressly eschewed the submission that the aggregate sentence itself was “manifestly excessive” (Markarian principle (5)).

66. Moreover, the characterisation of an indicative sentence as “manifestly excessive”, and thus falling within the type of error in (5) above, involves a misconception. An error of type (5) applies in respect of “the result embodied in [the] order” if that result is unreasonable or plainly unjust but no relevant specific error is discoverable. In the present case, the result embodied in the order was the aggregate sentence and not the indicative sentences. The indicative sentences were merely integers which contributed to the result embodied in the relevant order. It is only the aggregate sentence which can be challenged on appeal.

67. Given the role played by the concepts of “manifest excess” and “manifest inadequacy” in the context of appellate review of the sentencing discretion, these concepts are not directly applicable to indicative sentences. That is not to say, however, that an indicative sentence which appears to be excessive or inadequate is not capable of providing guidance as to whether the aggregate sentence is manifestly excessive or inadequate. In Davidson v R [2022] NSWCCA 153; (2022) 300 A Crim R 214, Brereton JA summarised the principles at [16] as follows:

“An aggregate sentence is necessarily informed by, and represents an accumulation to some degree of, the indicative sentences. While, in an appeal from an aggregate sentence on the ground of manifest excess, a principal focus is whether the aggregate sentence appropriately reflects the totality of the criminality involved, and while the indicative separate sentences are not themselves amenable to appeal, error in an indicative sentence may assist a finding of error in the aggregate sentence, though it has been said that the latter conclusion does not necessarily follow …”

(Footnotes omitted.)

68. In JM v R [2014] NSWCCA 297 at [40] (R A Hulme J, Hoeben CJ at CL and Adamson J agreeing) said:

“Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive: PD v The Queen at [44], [82]; BJS v The Queen (2013) 231 A Crim R 537 at [252]-[254].”

69. Adamson J (Hoeben CJ at CL and Bellew J agreeing) explained the correct understanding and approach in Stoeski v R [2014] NSWCCA 161 at [43] as follows:

“The only purpose in examining the individual indicative sentences for counts 1 and 4 in the present application is that, if one or more of the individual indicative sentences is excessive, it may support the contention that the aggregate sentence was manifestly so. However, it must be borne in mind that the relationship between the indicative sentences for individual counts and the aggregate sentence depends at least as much on the degree of internal accumulation or concurrence implicit within the aggregate sentence as in the individual indicative integers. Furthermore, since manifest excess, like manifest inadequacy, is a conclusion, it is not necessary for the applicant to identify a specific error: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6].”

70. The specification of indicative sentences preserves the transparency brought about by the requirement which applied before the commencement of s 53A of the Crimes (Sentencing Procedure) Act (which was introduced to permit the imposition of aggregate sentences) that individual sentences for each offence be imposed (see Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57), while avoiding the inevitable complexities which arose from the need to specify commencement and expiry dates for each sentence.

71. The requirement to specify indicative sentences has several purposes and consequences, which include the following:

1. enabling comparisons to be made for the purposes of parity between co-offenders (JM v R at [39](6));

2. exposing the operation of the totality principle such as to reveal any defects in its application (Noonan v R [2021] NSWCCA 35 at [33] (Beech-Jones J, Bathurst CJ and Wilson J agreeing) and Aryal v R [2021] NSWCCA 2 at [46]-[51] (R A Hulme J, Johnson and Wilson JJ agreeing)); and

3. as occurred in AJ, enabling an inference to be drawn that the sentencing judge, by choosing a starting point for the indicative sentences which was only slightly below the maximum penalty, had committed a patent error of process.

72. What has been “lost” where an aggregate sentence is imposed, rather than individual sentences for each offence, is the offender’s right to challenge the sentences which have been indicated (the indicative sentences), rather than imposed (being the aggregate sentence or, where individual sentences are imposed, each individual sentence). This can be taken to have been a deliberate consequence of s 53A of the Crimes (Sentencing Procedure) Act, given the legal background against which it was enacted.

73. Returning to Markarian, it does not follow from the utility and purposes of indicative sentences that they can be regarded as a vehicle which can be used to impugn an aggregate sentence which is not said to be manifestly excessive (in the absence of a patent error of the kind described in (1)-(4) of the Markarian principles). The present case serves as an example: Mr Odgers accepted that the sentence which would have been imposed for the murder was only increased by 1 year and 9 months by reason of the grievous bodily harm offence and that, accordingly, it could not be said that the aggregate sentence was manifestly excessive.

74. In conclusion, even if an indicative sentence, viewed in isolation, is regarded as excessive this will not, of itself, be sufficient to impugn an aggregate sentence which is not alleged to be manifestly excessive. In the absence of patent error, the applicant can only successfully impugn the aggregate sentence if he demonstrates that the aggregate sentence is manifestly excessive.

Whether the indicative sentence for the grievous bodily harm offence was excessive

75. As referred to above, we are not satisfied that the indicative sentence for the grievous bodily harm offence was excessive. We set out our reasons for this conclusion below. However, before doing so, we confirm that, for the reasons given above, we do not accept that, even if we were satisfied that the indicative sentence for the grievous bodily harm offence were excessive, it would be appropriate for the aggregate sentence to be quashed on that basis, in circumstances such as the present where no submission is made that the aggregate sentence is manifestly excessive.

76. In the present circumstances, the following review of the indicative sentence is, having regard to the above, effectively moot.

77. In substance, Mr Odgers submitted that the sentencing judge’s finding that the objective seriousness of the grievous bodily harm offence “falls below the middle of the range of objective seriousness but not at the lower end of the range” mandated a lower indicative sentence than 10 years’ imprisonment (being the starting point for the indicative sentence before the application of the 25% discount for the plea of guilty), having regard to the maximum penalty of 25 years’ imprisonment for that offence. He also submitted that the applicant’s moral culpability was substantially reduced because of his youth, immaturity, clinical depression and mental health conditions. He submitted that the applicant’s subjective circumstances were favourable. Accordingly, he submitted that the indicative sentence of 7 years and 6 months imprisonment was excessive. Further, he relied on Judicial Commission statistics and case references which were annexed to his submissions.

78. Sentencing is not a mathematical exercise and there is no single correct sentence: Pearce v The Queen at [46]. While objective seriousness is an important factor, there are many purposes of sentencing, which include punishment of the offender, denunciation of the offence, general and specific deterrence, protection of the community, rehabilitation and recognition of the harm done to the victim and the community: s 3A of the Crimes (Sentencing Procedure) Act. As the sentencing judge observed, the sentencing considerations pointed in different directions.

79. Having assessed the objective seriousness of the grievous bodily harm offence as falling below the middle of the range but not at the lower end of the range, the sentencing judge said that she considered the seriousness of the offending to be heightened by the degree of the applicant’s deliberation in deciding to take the knife with him and the number of stab wounds inflicted on the victim. The harm to the victim required substantial surgery and although he did not suffer permanent incapacitation, the victim suffers “continuing psychological and emotional harm”.

80. It is also of significance that the sentencing judge specifically adverted to the importance of both general deterrence and denunciation. Her Honour said (after referring to the applicant’s youth):

“That said, the offending conduct is extremely serious, involving as it did the use of a knife in a public place, occasioning death to one victim, and grievous bodily harm to another. General deterrence remains a relevant consideration. The young person’s conduct must be denounced and punished. He must be held to account for his actions.”

81. The statistics and cases to which Mr Odgers referred must be viewed against the well-established principles regarding the limited utility of such material in both exercising the sentencing discretion and reviewing an exercise of sentencing discretion: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

82. The applicant armed himself with a large knife, ambushed and attacked the deceased and the victim in a dark location without warning. It was open to the sentencing judge to indicate the sentence of 7 years and 6 months imprisonment (after a discount of 25% for the plea) for the grievous bodily harm offence. The Court is not persuaded that the indicative sentence was excessive.

Leave

83. The Court is minded to grant leave because of the matters of principle raised by Mr Odgers on behalf of the applicant.

Orders

84. For the reasons given above, the Court orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

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Decision last updated: 07 August 2024