Kuruppu v The Queen - [2021] NSWCCA 261

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kuruppu v R [2021] NSWCCA 261
Hearing dates: 27 August 2021
Date of orders: 05 November 2021
Decision date: 05 November 2021
Before: Meagher JA at [1];
Wright J at [2];
Fagan J at [227]
Decision:
(1) The applicant is granted an extension of time in which to file a notice of application for leave to appeal in the matters with file numbers 2016/0019453, 2015/00101365 and 2016/000580335.
(2) The applicant has leave to appeal in each of the matters 2016/00194535, 2015/00101365 and 2016/00058033.
(3) The appeal in each of the matters 2016/00194535, 2015/00101365 and 2016/00058033 is dismissed.

Catchwords:
CRIME — appeals — appeal against sentence — application for leave to appeal — extension of time in which to appeal — manifest excess — reliance on cases said to be comparable — sentences not manifestly excessive — extension of time and leave granted — appeal dismissed
CRIME — appeals — appeal against sentence — application for leave to appeal — extension of time in which to appeal — misapplication of principle — whether sentencing judge erred in rejecting expert opinions of psychologist — whether sentencing judge failed to find special circumstances or give practical effect to such a finding — whether sentencing judge erred in placing too much weight on general deterrence — whether sentencing judge failed to request sentencing assessment report — whether excessive accumulation of sentences — no House v The King errors — extension of time and leave granted — appeal dismissed
CRIME — apprehended violence order — contravene apprehended violence order
CRIME — property offences — break and enter with intent to commit serious indictable offence — circumstances of aggravation
CRIME — violent offences — common assault — choking, suffocation or strangulation — cause grievous bodily harm with intent
WORDS AND PHRASES — “convicted inmate” — Crimes (Sentencing Procedure) Act 1999 (NSW), s 56

Legislation Cited:
Crimes (Administration of Sentences) Act 1999 (NSW), s 4
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 6, 7, 12, 44, 47, 53A, 56, 69, 76, 80, 88
Crimes Act 1900 (NSW), ss 33, 35, 37, 59, 61, 113
Criminal Appeal Act 1912 (NSW), ss 5, 6
Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Cases Cited:
Aslan v R [2014] NSWCCA 114
Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61
Banks v R [2018] NSWCCA 41
Chung v Anderson [2004] NSWCA 321
CM v R [2020] NSWCCA 136
Delaney v R [2013] NSWCCA 150; (2013) 230 A Crim R 581
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
GP v R [2017] NSWCCA 200
Haines v R [2021] NSWCCA 149
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jackson v R [2021] NSWCCA 15
JM v R [2014] NSWCCA 297; 246 A Crim R 528
Lai v R [2021] NSWCCA 217
Little v R [2009] NSWCCA 113
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Moodie v R [2020] NSWCCA 160; 284 A Crim R 87
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Pannowitz v R [2016] NSWCCA 13
Primmer v R [2015] NSWCCA 155; 71 MVR 300
R v Anderson (Court of Criminal Appeal (NSW), Lee CJ at CL, Mathews and Sharpe JJ, 9 April 1991, unrep)
R v Baker [2000] NSWCCA 85
R v Fyffe [2002] NSWSC 751
R v Hollaway [2013] NSWSC 218
R v Hollaway [2016] NSWCCA 166
R v Israil [2002] NSWCCA 255
R v Jeremiah [2016] NSWCCA 241
R v Toohey [2019] NSWCCA 182
R v Windle [2012] NSWCCA 222
R v XX [2009] NSWCCA 115; 195 A Crim R 38
Roach v R [2019] NSWCCA 160; 344 FLR 429
Tammer-Spence v R [2021] NSWCCA 90
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Tohifolau v R [2018] NSWCCA 283
Tsiakas v R [2015] NSWCCA 187
Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Yi Hong Puan v R [2009] NSWCCA 194

Category: Principal judgment
Parties: Sampath Kuruppu (Applicant)
Regina (Respondent)
Representation:
Applicant (self-represented)

Counsel:
Elizabeth Wilkins SC (Respondent)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2015/00101365; 2016/00058033; 2016/00194535
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

R v Kuruppu [2018] NSWDC 322

Date of Decision:

17 March 2017; 13 April 2018

Before:

Colefax SC DCJ; Sutherland SC DCJ

File Number(s):

2015/00101365; 2016/00058033; 2016/00194535

Judgment

MEAGHER JA: I agree with the orders proposed by Wright J for the reasons his Honour gives. I also agree with the additional observations of Fagan J.
WRIGHT J: The applicant, Mr Sampath Kuruppu, seeks leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against two separate sentences imposed on him, namely:

the aggregate sentence imposed by Colefax SC DCJ in the District Court at Parramatta on 17 March 2017 (First Sentence); and

the sentence imposed by Sutherland SC DCJ in the District Court at Penrith on 13 April 2018 (Second Sentence).

The two applications for leave to appeal were filed out of time and the applicant has sought extensions of time on the bases set out in his affidavit outlining the difficulties arising out of his being in custody, refused Legal Aid and unrepresented, and out of the fact that English is not his first language.
The Crown accepted there may have been some difficulties for the applicant in lodging his applications for leave to appeal within time as a result of being in custody, not having Legal Aid and being unrepresented. It was submitted, however, that it really came down to the Court’s view of whether it was in the interests of justice to allow an extension of time because there was substantial merit in one or more of the grounds raised by the applicant.
Given the particular circumstances of the applicant and the fact that the grounds of appeal were not so lacking in merit that they could be said to be bound to fail without detailed consideration, it appeared to me that it was appropriate to grant the extensions of time sought by the applicant.
The applicant’s grounds of appeal were supported by written and oral submissions. There were separate written submissions, both dated 18 March 2021, in respect of each of the applications for leave to appeal. In addition to certain evidentiary affidavits, the applicant also filed an affidavit dated 24 August 2021 which contained, in substance, his submissions in reply to the Crown’s submissions in both applications. This affidavit of 24 August 2021 was accepted and taken into account as submissions and argument, rather than as evidence.
It will be convenient to deal with the grounds of appeal raised in relation to the application for leave to appeal against the First Sentence separately from the grounds relating to the application for leave to appeal against the Second Sentence.

First Sentence

Background

On 12 August 2016, the applicant pleaded guilty in the Local Court to two charges: intentionally choking being reckless as to rendering the person incapable of resistance; and aggravated break and enter with intent to commit an indictable offence. The matter was committed to the District Court for sentence. In the District Court, the applicant was also to be sentenced for a related offence on a s 166 certificate of contravening an apprehended domestic violence order (ADVO) and for a breach of a s 9 bond which had been previously imposed for a domestic violence related common assault committed in April 2015.
The sentence proceedings were heard on 24 February 2017 and the applicant was represented by Mr Shridhar of counsel. At the conclusion of the hearing, Colefax SC DCJ stood the matter over for sentence to be passed on 17 March 2017.
On 17 March 2017, the sentencing judge imposed an aggregate sentence of imprisonment for 7 years, commencing on 23 February 2016 and expiring on 22 February 2023, with a non-parole period of 4 years and 3 months expiring on 22 May 2020.
As required by s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act), his Honour indicated the sentences that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence, as set out in the table below.

Count

Offence

Indicative sentence

1

Intentionally choking his wife reckless as to rendering her incapable of resisting contrary to s 37(1) of the Crimes Act 1900 (NSW) for which the maximum penalty is 10 years’ imprisonment.

4 years and 6 months

2

Aggravated break and enter with intent to commit serious indictable offence, knowing persons inside, contrary to s 113(2) of the Crimes Act for which the maximum penalty is 14 years’ imprisonment.

5 years and 3 months

Section 166 certificate

Contravention of an apprehended violence order, contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) for which the maximum penalty is 2 years’ imprisonment or 50 penalty units or both.

18 months

Breach of s 9 bond

Common assault contrary to s 61 of the Crimes Act for which the maximum penalty is 2 years’ imprisonment.

6 months

Grounds of appeal

The applicant’s grounds of appeal in relation to the First Sentence were formulated as follows:

“1. The overall sentence imposed on the Applicant is manifestly excessive. In particular, without limiting the generality of this ground of appeal, the applicant contends that the sentence is infected with the following errors:
a. The indicative sentence in respect of the Common assault, contravene prohibition/restriction in AVO (domestic), Intentional choking, Aggravated breaking entre [sic], offence was excessive,
b. The aggregate sentence involves an excessive measure of notional accumulation between the individual sentences for which it was imposed.

2. The learned sentencing Judge erred by rejecting Ms Alison Cullen’s (Forensic psychologise [sic]) opinions, resulting in a denial of procedural fairness and a miscarriage of justice.
3. The learned sentencing Judge erred by placing too much weight on the aspect of general deterrence and failed to give adequate weight to the applicant’s subjective circumstances (including inter alia, good character and a first custodial sentence, prospect for rehabilitation).
4. The learned sentencing Judge erred in not finding and failing to give practical effect to, a finding of special circumstances in the total effective sentence.
5. The learned sentencing Judge erred by not requesting a presentenced [sic] report as it is the applicants first time in prison.”

In light of the nature of the grounds of appeal, it is necessary to review the sentencing judge’s remarks on sentence in some detail.

Colefax SC DCJ’s remarks

At the outset, the sentencing judge identified the two principal offences for which the applicant was to be sentenced, namely, intentional choking with recklessness and aggravated break and enter with intent to commit a serious indictable offence. His Honour noted the maximum penalties for these offences and the fact neither had a standard non-parole period. In addition, it was observed that there were two other offences to be dealt with: a contravention of an ADVO on a s 166 certificate; and a breach of a s 9 bond for an offence of common assault. His Honour noted that the relevant maximum penalty for each of these offences was two years’ imprisonment and that he had revoked the s 9 bond on 24 February 2017.

Facts of the offending

It was then recorded that the facts relating to the offending conduct were generally agreed. The sentencing judge’s findings as to the facts are set out in the paragraphs which follow.

Offending on 6 April 2015 originally dealt with by way of a s 9 bond

The assault for which the s 9 bond was originally imposed occurred on 6 April 2015. At about 9 pm on that day, the applicant’s then-wife and their two children were in the lounge room eating dinner when the applicant entered and yelled at the children to go to bed. After the children had left the room, the applicant and his wife began to argue about a divorce and the children. During the argument, the applicant spat on the food that his wife had been eating and, when she went into the kitchen, he followed her and threw water on her. After his wife had collected her purse, car keys and mobile phone and begun to walk towards the garage, the applicant grabbed her with both hands by the shoulders and pulled her back into the house. She was crying, yelling to be released and struggling to get away. She was extremely scared and feared for her safety. She had pain in her shoulders and her shirt had been ripped. The applicant dragged his wife into their bedroom and said “calm down, settle down.” She responded by telling him to go away and not to touch her. The applicant then pushed his wife onto the bed and held her down with both of his hands, holding her by the shoulders. She was again very scared and fearful. A short time later, the applicant released his grip on his wife and she remained seated on the bed. After a short conversation about a divorce, the applicant’s wife then made numerous attempts to leave the bedroom but she was stopped on each occasion by the applicant.
Eventually the applicant’s wife left the bedroom and walked into the hallway and told him that she was going to call the police. The applicant grabbed her mobile phone and threw it to the ground. He then picked up the phone and again threw it to the ground causing it to smash and break. When his wife ran along the hallway towards the garage, the applicant again grabbed her on the shoulders with both hands and pulled her inside. As she was being pulled back into the lounge room, they fell onto the sofa and the applicant prevented his wife from freeing herself by the strength of his grip.
A short time later, the wife went to the bathroom and she was followed by the applicant. When he went to the lounge room to retrieve a laptop, the applicant’s wife took the opportunity to run towards the garage, get into her car and immediately lock the doors. She refused to open the doors for the applicant and he then lay down near the rear wheel of the motor vehicle. A short time later, however, he stood up and his wife reversed down the driveway and drove to the police station where she parked her car across the road from the station. The applicant also drove to the police station and parked in front of his wife’s car. Once again, she refused to open the windows in response to his demand. The applicant then left the scene but returned a short time later with the eldest of their two children. The sentencing judge said that the purpose of doing so is not clear but it was unlikely to have been benign. His wife lowered her window slightly and the applicant reached into the car at that point, threatening to break the window. Indeed, he put his left hand on the window and pulled it causing it to shatter. The wife then sounded the horn and the applicant left the scene. Police arrived soon thereafter.
The sentencing judge paused at that point to note that a substantially different, and exculpatory, version of the events of that evening was given by the applicant to the psychologist who prepared a report which was before his Honour. It was concluded that this was but one example of, at least, a lack of insight by the applicant as to his offending conduct in general.
Colefax SC DCJ assessed the objective seriousness of this common assault offence as “hover[ing] somewhere equidistant between the middle and the bottom of the range” and noted that the offence was aggravated by the fact that it occurred in the victim’s premises.
Following that incident, an ADVO was made against the applicant. It was noted that the applicant came before the Local Court on 26 August 2015 when the s 9 bond for 12 months was imposed for the assault offence.

Other offending in 2015 and 2016 dealt with separately

At this point, the sentencing judge outlined other offending involving domestic violence by the applicant on 15 September 2015 and 3 January 2016, which was dealt with in the Local Court pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). (The applicant’s written submissions included a paragraph noting that “a section 32 (under the Mental Health Act) application was successful on 14 January 2016”.)

Offending on 23 February 2016

As at February 2016, the applicant was subject to an ADVO and a s 9 bond as well as being on bail for the offences committed on 3 January 2016. By this time, the applicant and his wife had separated and he had left the former matrimonial home.
On 22 February 2016, the applicant contacted his former wife on her mobile phone sending both text messages and voicemails saying that he loved her and wanted her back. She told him to stop sending her messages. At 8:30 pm she contacted the police who came and took a statement from her, leaving at about 11:30 pm. The applicant’s wife then sent a text message to her sister indicating that she was relaxing on the sofa watching television.
On 23 February 2016 at around 1:30 am, the applicant’s wife finished watching television and prepared to go to bed. As she did so, she saw through a window a male figure crouching low and running across the backyard. She perceived it was the applicant and immediately ran into the bedroom of one of her children, which was located at the back of the house. That child was asleep. Keeping her mobile phone under the bedcovers, she sent a text message to her sister alerting her to the fact that the applicant was outside and she was scared.
About five minutes later, the applicant’s wife heard a huge bang and a crashing sound which caused the child to wake up. The noise had been caused by the applicant throwing a paver through the window of another bedroom. He entered the house climbing through the broken window, cutting himself while doing so. The applicant’s wife called 000. The applicant ran into the bedroom where his wife was with the child and he grabbed his wife with both hands, putting one hand over her mouth and the other around her neck. The 000 operator could hear screaming in the background. His Honour identified that these were the facts which constituted the offence of aggravated break and enter with intent to commit an indictable offence, namely, intimidation, and the contravention of the apprehended domestic violence order, which was the offence on the s 166 certificate.
Still having hold of his former wife, the applicant began to twist her head from side to side. She began to struggle and scream but could not get any air and found it harder and harder to breathe. The applicant pushed her onto the bed and put his fingers into her mouth and down her throat pushing them all the way down. Struggling to breathe, she began to pass out. Nonetheless, she managed to grab the applicant’s hand and attempted to pull his fingers out of her throat so that she could breathe again. She continued to fight against the applicant but he continued to squeeze her throat tighter and tighter. Ultimately she fell off the bed and the applicant let her go. The sentencing judge noted that these were the facts which constituted the offence of intentional choking with recklessness.
After a short conversation concerning whom she had been calling on the mobile phone, the applicant grabbed the phone and began scrolling through it to see whom, if anyone, she had been calling. At this point the applicant told the child who had been present during all of the preceding conduct to go into his brother’s room. The applicant then directed his former wife to go to the kitchen and he followed her there. She was directed to sit on the kitchen floor, which she did, and he crouched down in front of her so that they were at the same level. There was then a discussion about the failed marriage. During that discussion the applicant said:

“I’m going to kill you, and then the kids, and then kill myself.”

His Honour concluded that there was no reason to think that there was not at least an element of truth in that statement.

At about this time, the police arrived at the premises but the applicant pressured his former wife into seeking to deceive the police officers that nothing was amiss. In this she was unsuccessful and police entered the premises. The applicant was found hiding under a bed with a cut on his leg. Initially he lied to police and told them that his former wife had done it to him whereas, in fact, he had cut himself entering the house through the window. When asked by police how he got to the premises, the applicant told more lies including that his former wife had driven him there. The applicant was searched by police and, significantly, in his trouser pocket they found a roll of duct tape.
The applicant’s former wife was taken to hospital where the following injuries were noted: abrasions to the top lip and the back of the throat; tenderness to the facial cheeks; swelling to the right cheek; abrasions and scratches; abrasions to the neck; bruising to each side of the neck; a 3 cm bruise on the front of her left upper arm; a 1.5 cm bruise on the back of her left hand; an 8 cm by 7 cm bruise on her left inner upper arm; a 10 cm by 6 cm bruise on the front of her lower right thigh; swelling to her left knee; and difficulty breathing and speaking.
His Honour assessed the objective seriousness of each of the choking and aggravated break and enter offences as “above the midrange”.
The sentencing judge then observed that each offence was aggravated: by the fact that the offences were committed in the victim’s home; by the prior history of offending against the same victim; by the presence of at least one child; and by the fact that the applicant was on bail, on a s 9 bond and subject to an ADVO at the time.

Absence of victim impact statement

His Honour observed that there was no victim impact statement from the applicant’s former wife. Nonetheless, it was accepted that the events would undoubtedly have been terrifying for her, fearing not only for her own safety and life but also for those of her two sons.

Psychologist’s report

Colefax SC DCJ noted that the applicant did not give evidence in the sentence hearing but rather relied upon the contents of a psychological report prepared by Ms Cullen dated 12 December 2016, supplemented to an extent by a letter from the applicant to the Court.
His Honour made a number of comments concerning that report. First, it was noted that Ms Cullen’s report was based, in part, on reports by three other medical experts but those reports were not “more fully placed in evidence”. Notwithstanding that deficiency, the sentencing judge said:

“As neither party placed those reports into evidence, I shall assume that they are not inconsistent with the substance of Ms Cullen’s report. The health professionals who prepared those reports became engaged after the offender’s offending conduct began in 2015 – with, it would seem, little positive effect.”

It was also noted that the psychologist referred to the applicant commencing a re-offenders program concerning domestic violence since he was taken into custody. It was said that, assuming he has been on such a course, no evidence of what, if any, progress had been made was before the Court.

Secondly, it was noted that in Ms Cullen’s report the applicant was recorded as seeking to give an exculpatory version of the events of 23 February 2016. His Honour quoted from that report as follows:

“[The applicant] advised that he then attended the family home where he peered through the back windows. He explained that he saw his wife ‘wearing silk‘ and he also saw ‘Scotch and wine glasses.’ He then explained that ‘I thought she was sleeping with a police officer [and] that’s why she’s called them so many times …’ as he discovered when he went through her phone bills. [The applicant] became distressed at this point in the interview, exclaiming ‘I thought she was with another man… I obviously just panicked …’ and subsequently smashed the back door to gain access into the home.”

It was then observed that Ms Cullen relied upon that history in part to conclude that the applicant suffered from delusional beliefs, including when committing the principal offences.

The sentencing judge also noted that Ms Cullen’s report did not expressly address the existence, or the significance, of the duct tape which had been found on the offender. His Honour was of the view that this omission was important and undermined any opinion that in carrying out the principal offences the offender was suffering from any delusional belief. It was held that the presence of duct tape was indicative of a more sinister intent and was inconsistent with the exculpatory version offered by the offender. It was said to be consistent with the death threats made by the applicant to which his Honour had earlier referred. In the absence of any evidence from the applicant, the sentencing judge was not satisfied on the balance of probabilities that the offender was suffering from any delusional beliefs at the time he carried out the principal offences. In fact, he was satisfied beyond reasonable doubt that the offences of that night were premeditated.

Subjective circumstances

As to other aspects of the applicant’s subjective case, his Honour noted that the offender was 50 years of age at the time of the sentence proceedings and had been born in Sri Lanka. It was accepted that until he was 14 or 15 years old his childhood was unremarkable. At that age, however, his father died unexpectedly, which seemed to have given rise to long-term unresolved grief issues.
It was noted that the applicant left school at the equivalent of year 10 and initially obtained a diploma in hotel management and services. After working in the United States and Canada in accounting and hospitality, the applicant migrated to Australia in 1999 when he was 33 years old. His Honour found that since coming to Australia the applicant had completed degrees in IT and business studies and had been employed for nine years with Westpac until his most recent arrest.
The sentencing judge recorded that that there was a history of excessive alcohol consumption since the applicant was 27 years old, which may be related to his unresolved grief issues. It was also noted that the applicant’s criminal history in Australia began in 2000 and involved a mid range PCA offence and other similar offences in 2006 and 2012. It was also noted that his other offending conduct in Australia concerned violence towards his former wife. The sentencing judge accepted that the applicant had no criminal convictions in Sri Lanka.
Although there was a history of the applicant suffering head injuries, one from a motor vehicle accident and another from a fall at home, his Honour found there was no evidence that related those injuries to the offending conduct.
It was noted that Ms Cullen had diagnosed the applicant as suffering from severe alcohol use disorder, moderate persistent depressive disorder, and delusional disorder. The sentencing judge observed that while the first two diagnoses might be accepted, he had some doubts about the third for the reasons that had already been expressed. It was also noted that there was a history, which was not independently corroborated, of various attempts at suicide, including since he had been taken into custody. His Honour thought it significant that Ms Cullen opined that the applicant’s persistent lack of insight into what constitutes domestic violence together with a decline in mental health in the months preceding the events underlay the principal offences.
Because of that lack of insight and, to a lesser extent, the failure of the applicant to give sworn evidence at the sentence hearing, his Honour gave little weight to the expressions of remorse contained in the letter from the applicant to the Court.
It was also said to be significant that Ms Cullen wrote:

“The current risk to himself and his wife is deemed to be unacceptable in the absence of intense psychological/psychiatric support to address his delusions, depression, anxiety and alcohol misuse.”

At this point his Honour paused to note that he could not see on the material available that any such support was available or was likely to be available in the immediate future.

The sentencing judge did not accept Ms Cullen’s view that the applicant had accepted that there was no realistic possibility of reconciliation with his former wife and that, as she and the children were moving to New Zealand, the risk of future harm was reduced. His Honour said:

“In my opinion, and unless and until he receives that intense psychological/psychiatric report [sic – support], he continues to remain a real risk to his wife. The fact that he has lost his employment, that he has lost access to his children, that he has little family or community support, and that he is effectively homeless all mean, in my opinion, that the likelihood of improved psychiatric condition is remote.”

Colefax SC DCJ found that the applicant’s prospects for rehabilitation were poor, “notwithstanding the apparent support of his brother-in-law – support which curiously is not forthcoming from his own sister”.
As to the implications of the applicant’s mental health, the sentencing judge held:

“Whilst there may well be underlying psychiatric issues impacting upon the offender which would reduce his moral culpability, nevertheless other competing principles of sentencing, namely specific deterrence, denunciation and especially in this case the protection of the community in general, and his former wife in particular, remain significant considerations.”

His Honour was satisfied that, in each of the four matters before him, no sentence other than a period of full-time imprisonment was appropriate.
As result of his early guilty pleas, it was held that the applicant was entitled to a discount of 25%. It was noted that the applicant had been in custody since his arrest on 23 February 2016 and that the aggregate sentence would be backdated to commence on that date.
The sentencing judge made a finding of special circumstances based on the applicant’s mental health issues alone.

Sentence

His Honour then announced the indicative sentences he would have imposed in respect of each of the offences. In addition, it was said that the sentence for breach of the ADVO would have been totally concurrent with the sentence for the aggravated break and enter while the sentences for the remaining three offences would be partially accumulated with each other. The aggregate sentence referred to above was then imposed.

Consideration of grounds of appeal

Before considering the first ground of appeal which raises the issue of whether the First Sentence was manifestly excessive, I shall deal with the other four grounds of appeal which raise specific errors.

Ground 2

The second ground of appeal involved the contention that the sentencing judge erred by rejecting Ms Cullen’s opinions, and this was said to result in a denial of procedural fairness and a miscarriage of justice.
In considering this ground of appeal, it should first be noted that a sentencing judge is not bound to accept or act on the opinions of expert witnesses even where there is no challenge to those opinions: Primmer v R [2015] NSWCCA 155 at [31] (Hamill J, Garling J agreeing); 71 MVR 300; Chung v Anderson [2004] NSWCA 321 at [137] (McColl JA, Santow JA and Cripps AJA agreeing); Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [89] (Heydon JA).
In the present case, Colefax SC DCJ did not, in fact, reject all of the opinions of the psychologist, Ms Cullen. As outlined above, the sentencing judge accepted her diagnoses that the applicant suffered from severe alcohol use disorder and moderate persistent depressive disorder. His Honour did, however, express doubts about, and ultimately did not accept, her third diagnosis of delusional disorder. In his remarks on sentence, the sentencing judge explained the basis for his rejection of that third diagnosis. It was noted that the diagnosis was based, at least in part, on the account given by the applicant to Ms Cullen of his seeing, on the night of the offending, his former wife “wearing silk” and “scotch and wine glasses” and his belief that she was sleeping with a police officer. In the absence of any evidence from the applicant himself, the sentencing judge did not accept that the applicant actually saw those things or was suffering from a delusion that he did see those things at the time of the offending. Rather, it appears that the sentencing judge accepted that the applicant’s account of what he said he saw and believed which he gave to Ms Cullen was a version of events given with a view to exculpating himself. The sentencing judge also relied on the fact that Ms Cullen did not address the significance of duct tape being found in the applicant’s pocket when he was searched at the scene. His Honour was of the view that the presence of duct tape was indicative of “a more sinister intent” and consistent with the death threats made by the applicant. It was also found to be inconsistent with the exculpatory version offered by the applicant to Ms Cullen. These factual conclusions reached by his Honour were open on the evidence and provided a sufficient basis for him to reject Ms Cullen’s diagnosis of delusional disorder. No error in that regard has been established.
As to other opinions expressed or matters reported by Ms Cullen, the sentencing judge accepted some of those opinions; for example, the opinion that the applicant lacked insight into what constitutes domestic violence. Nonetheless, his Honour rejected other opinions or matters, especially where there was no independent evidentiary support for them. For example, the sentencing judge did not accept Ms Cullen’s views that the applicant had accepted that there was no realistic possibility of reconciliation with his former wife or that, as his former wife and the children were moving to New Zealand, the risk of future harm was reduced. These were, once again, conclusions which were open on the evidence and did not involve any error on his Honour’s part.
Furthermore, in relation to this second ground of appeal, the applicant submitted that “it was unfortunate that the Judge did not call Ms Alison Cullen … for any doubts”. The difficulty with that submission is that it was not the sentencing judge’s responsibility to call Ms Cullen for cross-examination. Her expert opinions and the assumptions and reasoning on which they were based were put before the Court by the applicant by way of Ms Cullen’s written report. The Crown chose, as was its right, not to cross-examine Ms Cullen. As explained above, the sentencing judge was not bound to accept Ms Cullen’s opinions, even if they were unchallenged and she was not cross-examined on them, especially since he found that the factual assumptions on which those opinions were based had not been otherwise established. In the circumstances of the present case, the learned sentencing judge did not deny the applicant procedural fairness, nor was there a miscarriage of justice, as a result of his Honour’s “rejecting a qualified Forensic Psychologist’s professional diagnoses”. In other words, this was not a case where the sentencing judge was not permitted to reject part of Ms Cullen’s expert evidence without her being cross‑examined, for the reasons explained above.
It can also be noted that the applicant placed some emphasis on the fact that he only had a copy of a report from Ms Cullen dated 26 September 2016 whereas the report before Colefax SC DCJ was dated 12 December 2016. From the applicant’s summary of the earlier report in his affidavit of 20 July 2021, it is clear that the later report was an updated version of the earlier report taking into account Ms Cullen’s consultation with the applicant on 9 December 2016. The opinions expressed by Ms Cullen in both reports appear to be substantially the same. The fact that the applicant only had a copy of the earlier report and not the updated, later report to substantially the same effect provides no basis for finding any error by the sentencing judge in relation to his consideration of Ms Cullen’s evidence.
Finally, the applicant also asserted in effect that there was a miscarriage of justice as a result of his legal representatives’ incompetence in failing to request further psychological reports, failing to call the applicant to give evidence and failing to call Ms Cullen to give oral evidence. The general principle is that, in adversarial proceedings including proceedings on sentence, parties are bound by the conduct of their legal representatives: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [8] (Gleeson CJ) and [79] (McHugh J). Notwithstanding this, it has been held to be possible for a miscarriage of justice to occur by reason of incompetent representation in sentence proceedings, for example where relevant and compelling material was not produced at the hearing, where relevant and significant material was overlooked by the carelessness of the legal representatives or where the sentencing court was deprived of a consideration of the offender’s circumstances: Tsiakas v R [2015] NSWCCA 187 at [44] (Beech-Jones J, Leeming JA and Johnson J agreeing) and the authorities there cited; Yi Hong Puan v R [2009] NSWCCA 194 at [54] (Howie J, Hodgson JA agreeing).
In the present case, apart from the opinions of the three other medical experts referred to in Ms Cullen’s report, no specific significant or compelling material was identified as not having been presented to the Court at the sentencing hearing. Notwithstanding that those three experts’ material was not before the Court except as summarised in Ms Cullen’s report, the sentencing judge expressly assumed that their opinions were not inconsistent with the substance of Ms Cullen’s report. To that extent, their opinions were taken into account.
Moreover, it was not established that the sentencing judge was deprived of a proper consideration of the applicant’s circumstances. From the material before the sentencing judge and from the applicant’s submissions in this Court, it can be seen that the decision not to call the applicant to give evidence was one which could be explained on forensic grounds rather than because of the incompetence of his legal representatives.
In all the circumstances, there does not appear to me to be any substance in the complaint that the applicant was incompetently represented before Colefax SC DCJ, even if it were accepted that this complaint fell within the second ground of appeal.
Consequently, for all of these reasons I would reject the second ground of appeal in relation to the First Sentence.

Ground 3

The third ground of appeal was that the sentencing judge erred by placing too much weight on the aspect of general deterrence and failed to give adequate weight to the applicant’s subjective circumstances (including inter alia, his good character, it being his first time in custody and his prospects of rehabilitation).
It is well established that challenges to the exercise of the sentencing discretion are confined by the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40, where it was held, at 505 by Dixon, Evatt and McTiernan JJ:

“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.”

Furthermore, in a sentence appeal, the mere assertion that insufficient weight has been given to a factor is not normally a proper ground of appeal: Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 at [16] (Bathurst CJ and Leeming JA) and the authorities there cited. It is implicit in the formulation of this ground of appeal that some weight was given to the applicant’s subjective circumstances as well as to general deterrence. Questions of weight in the exercise of a discretion are matters for the sentencing judge and the circumstances in which matters of “weight” will justify intervention by an appellate court are narrowly confined: R v Baker [2000] NSWCCA 85 at [11].
From Colefax SC DCJ’s remarks on sentence, it is obvious that significant consideration was given to both the objective seriousness of the offending and the applicant’s subjective circumstances. His Honour did not, however, find that the applicant’s mental health was such as to render the applicant an inappropriate vehicle for general deterrence, in accordance with the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (De La Rosa) at [177] (McClellan CJ at CL). Given the nature and circumstances of the offending which involved smashing a window to gain entry, serious domestic violence, death threats to his former wife and his children and the possession of duct tape which could be used in making good those threats, even taking into account the applicant’s subjective circumstances, it was entirely appropriate for the sentencing judge to give substantial, but not overwhelming, weight to general deterrence in this case.
Further and in any event, in the present case, it is beyond dispute that the sentencing judge took into account, and gave significant weight to, the applicant’s subjective circumstances, which he referred to at some length in his remarks. In particular, his Honour referred to and took into account the applicant’s background, psychological diagnoses, insight into his offending, prospects of rehabilitation and the other factors referred to in the remarks. The applicant’s character as disclosed by his criminal history and the penalties imposed as well as his brother-in-law’s letter also formed part of the sentencing judge’s consideration. Not all of the applicant’s subjective circumstances told in favour of mitigation of his sentence. Some of the circumstances pointed in the opposite direction. The sentencing judge was required to weigh all the relevant circumstances in determining the aggregate sentence to be imposed. No error has been demonstrated as contended under ground 3.
On these bases, I would reject the third ground of appeal in relation to the First Sentence.

Ground 4

The applicant’s fourth ground of appeal was that the sentencing judge “erred in not finding and failing to give practical effect to, a finding of special circumstances in the total effective sentence”.
This fourth ground of appeal against the First Sentence appears to be misconceived. It either:

proceeds on the basis of a misapprehension that Colefax SC DCJ did not make, or give effect to, a finding of special circumstances when imposing the First Sentence; or

only applies in relation to Sutherland SC DCJ’s consideration and imposition of the Second Sentence, if the reference to “the total effective sentence” is a reference to the combined effect of the First and Second Sentences.

The First Sentence, imposed by Colefax SC DCJ, was an aggregate sentence. The relevance of a finding of special circumstances in relation to an aggregate sentence is governed by s 44 of the Sentencing Procedure Act, which relevantly provides:

44 Court to set non-parole period
…
(2A) Without affecting the requirement to set a non-parole period for a sentence, a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences on an offender may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence.
(2B) The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).
…

By operation of s 44(2B), unless the sentencing judge finds there are special circumstances, the non-parole period must not be less than 75% of the aggregate sentence. (This percentage is another way of expressing the requirement in subs (2B) that the time to be served after the non-parole period must not exceed one-third of the non-parole period.)
In relation to the First Sentence, Colefax SC DCJ expressly made a finding of special circumstances on the basis of the applicant’s mental health issues alone. The aggregate sentence imposed by Colefax SC DCJ was 7 years’ imprisonment with a non-parole period of 4 years and 3 months. This non‑parole period was 60.7% of the aggregate sentence. Thus, the finding of special circumstances was given effect to in relation to the First Sentence.
Accordingly, insofar as this fourth ground of appeal was confined to the First Sentence and did not involve a consideration of the combined effect of the First and Second Sentences, there was no error by the sentencing judge in relation to giving effect to the finding of special circumstances.
To the extent that this ground concerned the overall effect of the First and Second Sentences, this did not involve any error by Colefax SC DCJ because the Second Sentence had not been determined at the time the First Sentence was imposed and, consequently, could not have been taken into account by his Honour.
In these circumstances, I would reject the fourth ground of appeal in relation to the First Sentence.

Ground 5

The fifth ground of appeal in relation to the First Sentence was to the effect that it was an error for the sentencing judge not to have requested a pre-sentence report, as it was the applicant’s first time in prison.
The Sentencing Procedure Act, at the time when the First Sentence was imposed, provided for assessment reports to be sought when consideration was being given to imposing various types of orders not involving serving a term of imprisonment in full-time custody. For example, s 69 of the Sentencing Procedure Act provided in relation to an intensive correction order as follows:

69 Referral of offender for assessment
(1) Before imposing a sentence of imprisonment on an offender, the court may refer the offender for assessment as to the suitability of the offender for intensive correction in the community.
(2) A court is not to refer an offender for such an assessment unless satisfied, having considered all the alternatives, that no sentence other than imprisonment is appropriate and that the sentence is likely to be for a period of no more than 2 years.

At the time of sentencing, under s 7(1) of the Sentencing Procedure Act, an intensive correction order could only be made where a court has sentenced an offender to imprisonment for two years or less. [1]

1. Such limits on the availability of an intensive correction order (ICO) are now stated in s 68 of the Sentencing Procedure Act, following amendments that came into effect in September 2018: Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW), Sch 1 [7] and [29]. In respect of an aggregate sentence, s 68(2) provides that an ICO must not be made if the duration of the term of the aggregate sentence exceeds three years.

Further examples of similar provisions included:

s 80 of the Sentencing Procedure Act in relation to assessment for a home detention order, which could not be made with respect to a sentence that exceeded 18 months, by operation of s 6(1) of that Act, or an aggregate sentence involving a domestic violence offence against any person with whom it is likely the offender would reside, or continue or resume a relationship, if a home detention order were made, by operation of s 76(g) of that Act; and

s 88 of the Sentencing Procedure Act in relation to assessment for a community services order.

In light of his Honour’s unchallenged finding that no penalty other than imprisonment was appropriate for each of the offences and the fact that the aggregate sentence in this matter was never likely to be for a period of no more than 2 years, the need for an assessment report under these types of provisions did not arise in the present case. Colefax SC DCJ did not fall into error by not obtaining an assessment report under these types of provisions.
There was no other provision which imposed an obligation on the sentencing judge to obtain a pre-sentence report in this case. Furthermore, the absence of a pre-sentence report in the circumstances of the present case did not involve any error in the sentencing process.
On these bases, the fifth ground of appeal in relation to the First Sentence should be rejected.

Ground 1

The first ground of appeal was to the effect that the First Sentence of 7 years’ imprisonment with a non-parole period of 4 years and 3 months was manifestly excessive. In addition, the applicant contended that the indicative sentences for each of the four offences was excessive and there was an excessive measure of notional accumulation between the indicative sentences inherent in the aggregate sentence.
The applicant also relied on a number of cases which were said, in effect, to be comparable and to establish that the aggregate sentence was excessive. The comparable cases identified were: R v Israil [2002] NSWCCA 255 (Israil); R v Hollaway [2016] NSWCCA 166 (Hollaway); and Little v R [2009] NSWCCA 113 (Little).
The general principles as to when this Court should intervene on the ground that a sentence is manifestly excessive are very well established. R A Hulme J usefully summarised those principles, and identified the High Court authorities on which they are based, in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing), as follows:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].
Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
It is not to the point that this Court might have exercised the sentencing discretion differently.
There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

In addition, when an aggregate sentence is challenged on the ground that it is manifestly excessive, the following principles, as set out in Jackson v R [2021] NSWCCA 15 at [116] (Price J, Hoeben CJ at CL and Fagan J agreeing) and JM v R [2014] NSWCCA 297 at [40(11)-(13)]; 246 A Crim R 528 (R A Hulme J, Hoeben CJ at CL and Adamson J agreeing), are to be applied:

The indicative sentences recorded in accordance with s 53A(2) of the Sentencing Procedure Act are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence.

Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive and determining whether the aggregate sentence is excessive depends principally on whether the aggregate sentence reflects the totality of the criminality involved.

In relation to reflecting the totality of the criminality in the notional concurrence or accumulation of indicative sentences in an aggregate sentence, assistance can be gained from principles applicable in relation to accumulation and concurrence of sentences more generally. Hall J distilled a number of relevant principles from the authorities in R v XX [2009] NSWCCA 115 at [52]; 195 A Crim R 38 (Tobias JA and Kirby J agreeing), including the following:

First, an appropriate sentence should be imposed in respect of each offence and, secondly, the total sentence imposed should properly reflect the totality of the criminality.

In applying the principle of totality in relation to two or more offences, the question to be posed is whether the sentence for one offence can comprehend and reflect the criminality of the other offence. If so, then the sentences ought to be concurrent, otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the totality of the two offences. If not, however, the sentence should be at least partially cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences.

The two principal offences for which the applicant was sentenced, intentionally choking and aggravated break and enter with intent to commit an indictable offence, attracted maximum penalties of 10 years and 14 years respectively. Their objective seriousness was assessed by the sentencing judge as being above the mid range in each case. These assessments were not challenged and, in light of the circumstances disclosed by the agreed facts and other relevant material concerning objective aggravating factors, were entirely justified.
The applicant’s subjective case included his mental health diagnoses of alcohol use disorder and depressive disorder, which were accepted and taken into account by the sentencing judge as reducing his moral culpability. This consideration and other positive aspects of his situation had the effect of mitigating the indicative sentences and the aggregate sentence. As noted above, other aspects of his subjective case, such as his prior history of domestic violence, his lack of insight into domestic violence offending, his lack of established remorse and his poor prospects of rehabilitation, tended in the other direction.
The indicative sentences for the choking offence and the aggravated break and enter offence, before applying any discount, were 6 years and 7 years respectively. After application of the 25% discount for the early pleas of guilty, those sentences were 4 years and 6 months and 5 years and 3 months respectively, and were not manifestly excessive taking account of the objective and subjective circumstances, the maximum penalties and the principles and purposes of sentencing.
The indicative sentence for the domestic violence assault, for which the applicant had originally received the s 9 bond, was 8 months, and the indicative sentence for breach of the ADVO was 2 years. After the application of a 25% discount, those indicative sentences were 6 months and 18 months respectively.
Those offences both carried relevant maximum penalties of 2 years’ imprisonment. The objective seriousness of the assault was found to be “somewhat equidistant between the middle and bottom of the range”. The circumstances of the assault were set out in the remarks on sentence. The findings in that regard were not challenged on appeal. The assault involved conduct which was not only violent and aggressive but also demeaning. A starting point of 8 months and an indicative sentence for this offending of 6 months, even taking into account the ameliorative aspects of the applicant’s subjective case, could not properly be seen to be excessive.
The breach of the ADVO by contacting the person in need of protection, approaching her house, breaking in by smashing a window and subjecting her to significant personal violence and fear can legitimately be seen as falling within the worst category of cases for this particular type of offending. In all the circumstances, the starting point of 2 years and an indicative sentence of 18 months was not, in my view, excessive.
Further and in any event, the sentencing judge found that the indicative sentence for the breach of the ADVO would, if an aggregate sentence had not been imposed, have been made totally concurrent with the sentence for the aggravated break and enter offence. This was reflected in the total notional concurrence of the indicative sentence for the breach of the ADVO with the indicative sentence for the aggravated break and enter and was appropriate since the criminality of the ADVO breach was entirely comprehended in the criminality of the more serious break and enter offence.
The domestic violence assault which occurred on 6 April 2015 was a separate and distinct incident from the later offending on 23 February 2016, which involved the breach of the ADVO, the aggravated break and enter and the intentional choking. The criminality of that assault was not comprehended or reflected in the criminality of the February 2016 offending. A substantial degree of notional accumulation of the indicative sentence for the assault offence on the indicative sentences for the other offences was, therefore, appropriate.
Furthermore, the criminality involved in the choking offence was not part of, or subsumed in, the criminality inherent in the aggravated break and enter offence. The criminality involved in each of those offences was in large measure separate and distinct, even though they were aspects of events that occurred on only one occasion. Thus, a degree of notional accumulation in relation to the indicative sentences for those offences was required in order to reflect the totality of the criminality involved in the offending on 23 February 2016.
It is well established that questions of accumulation and concurrence are matters to be determined in the exercise of the sentencing judge’s discretion: R v Toohey [2019] NSWCCA 182 at [56] (Gleeson JA, Button and Lonergan JJ agreeing); Pannowitz v R [2016] NSWCCA 13 at [40] (Davies J, Hoeben CJ at CL and Beech-Jones J agreeing). When the indicative sentences are compared with the aggregate sentence of 7 years (and a non-parole period of 4 years and 3 months), it can be seen that, while there is a degree of accumulation, it could not be concluded that there had been some error and that the degree of accumulation was excessive, in all the circumstances and given the requirement that the aggregate sentence reflect the totality of the criminality involved in the offending.
As to the cases relied upon by the applicant to establish that the aggregate sentence was manifestly excessive, it can be accepted that it is appropriate to have regard to sentences imposed in cases which are relevantly comparable for the reasons given by Bell P in Moodie v R [2020] NSWCCA 160 at [81] (Davies and N Adams JJ agreeing); 284 A Crim R 87. Most importantly, such a comparison serves the beneficial purpose of ensuring consistency in sentencing. Nonetheless, observing the sentences that have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [59].

As noted above, the applicant drew attention to Israil, Hollaway, and Little.
In Israil, the offender had pleaded guilty to one count of robbery armed with an offensive weapon, namely, a blood-filled syringe, and a second count of attempted armed robbery with an offensive weapon, namely, a mock rifle. Two additional charges were asked to be taken into account on a Form 1, namely, demanding money with menaces and another armed robbery. There were originally issues with the offender’s fitness to plead. When these were resolved, the offender pleaded guilty.
The sentencing judge in Israil found that the offender suffered from mental illness, including substance induced psychosis and mood disorder and likely an underlying psychotic disorder, either schizophrenia or bipolar mood disorder which had started to emerge before he commenced abusing illicit drugs. His prospects of rehabilitation were found to be good provided his treatment remained in place. In the circumstances of that case, the sentencing judge imposed a term of imprisonment for 2 years but suspended the execution of the whole of the sentence under s 12 of the Sentencing Procedure Act. The Crown appealed to this Court contending that the sentence was manifestly inadequate.
Spigelman CJ (Simpson J and Blanch AJ agreeing) held, at [23], that to the extent that mental illness explained the offending — as the sentencing judge had found to be the position in that case — then an offender’s inability to understand the wrongfulness of his actions, or to make reasonable judgments, or to control his or her faculties and emotions, would impact on the level of culpability of the offender, even where the illness did not amount to an excuse at law. It was also held in that case:

that mental illness may also lead to the conclusion in a particular case that the element of personal deterrence, not just general deterrence, is also entitled to less weight in the sentencing exercise than it may otherwise have, at [25]; and

a custodial sentence may weigh more heavily on a mentally ill person and that may be a material consideration in determining the length of the sentence to be served, at [26].

Those principles have been repeated in the later authorities; see, for example, De La Rosa at [177]-[178] and Aslan v R [2014] NSWCCA 114 at [33].
In Israil, Spigelman CJ then went on to dismiss the Crown’s appeal against sentence as follows:

“28 Her Honour made a number of findings of fact in this regard that I have set out above. She identified the mental illness as a relevant factor, both in terms of culpability and also in terms of rehabilitation. These findings were, in my opinion, open to her Honour. The mental illness involved in the present case was of a particularly high order and gave rise to issues of culpability, personal deterrence and general deterrence, as well as rehabilitation. In these circumstances, in my opinion, it was open to her Honour to conclude that a term of imprisonment of two years was appropriate.
29 Her Honour suspended the sentence on the basis of the significance of rehabilitation in the context of the Respondent’s mental illness. …”

In the present case, there was no psychiatric report establishing that the applicant’s mental illness was of a similarly high order. The psychologist said that the depressive disorder was moderate, although the alcohol use disorder was said to be severe, and the sentencing judge did find that the applicant’s mental illness reduced his moral culpability. Notwithstanding this, Colefax SC DCJ held that specific deterrence, denunciation and protection of the community in general and his former wife in particular remained significant considerations. These views were, in my opinion, open to his Honour in this case. In addition, in relation to rehabilitation, the sentencing judge noted the following in relation to the applicant:

“… it is significant to note that Ms Cullen also wrote:
‘The current risk to himself and his wife is deemed to be unacceptable in the absence of intense psychological/psychiatric support to address his delusions, depression, anxiety and alcohol misuse.’

I pause to observe that I cannot see, on the available material, where any such intense psychological or psychiatric support is now available to the offender or likely to be available to him in the immediate future.”

Thus, the circumstances of the present case were so different from those in Israil that the outcome in that case does not provide any appropriate basis for concluding that the aggregate sentence imposed by Colefax SC DCJ was plainly unjust or so far outside the range of available sentences as to be manifestly excessive.
Hollaway also involved a Crown appeal against sentence which was rejected. In that case, the offender was found guilty of attempting intentionally to choke her female partner with whom she had been in a relationship for eight years, although the relationship was described as “torrid and dysfunctional and marked by episodes of violence”. The offender was also sentenced following pleas of guilty for offences of intentionally damaging property and breaching an ADVO. At the date of the offending, the offender was on parole.
The sentencing judge in that case, McClintock SC DCJ, sentenced the offender for the primary offence to imprisonment for 1 year and 9 months with a non‑parole period of 1 year and imposed fixed term sentences of 3 months and 1 month for the other offences and ordered that all of the sentences commence from the same date. The circumstances were described by this Court as follows, at [42]:

“The [offender] did not suffocate or strangle her victim. She did not render her unconscious or insensible. She attempted to choke in order to render her incapable of resistance. It was undoubtedly a serious matter as the judge found, but he also found it occurred in the context of a ‘torrid and dysfunctional relationship marked by episodes of violence’; he could not determine how the fight started although it was likely to have arisen out of some dispute between the pair earlier in the day and whilst they were both very significantly affected by alcohol. There was also the fact, as the judge noted, that the victim did not sustain any apparent permanent injury but that the [offender] did.” (Emphasis in original.)

The lenient sentences imposed must also be viewed in light of the offender’s mental health which had been explored in greater detail in proceedings when the offender was earlier sentenced by Price J for manslaughter: R v Hollaway [2013] NSWSC 218. McClintock SC DCJ relied upon Price J’s assessment of the psychiatric evidence that was before his Honour on that occasion. Price J’s findings included:

“[26] It appears that the offender was sexually abused by her mother's partner when she was 11 years old. She described further sexual abuse by an elder brother and a neighbour. At the age of 13, she was made a ward of the State. The offender reported episodes to Dr Nielssen of deliberate self-harm from the age of 12 or 13 mainly by cutting her left forearm and that she developed symptoms of an eating disorder. She was admitted to Bloomfield Psychiatric Hospital, Orange, in December 2004 with a diagnosis of ‘Stress Reaction Disorder’, having cut her wrist following a miscarriage. The offender was then 15 years old. She presented to Dubbo Base Hospital in April 2005 with thoughts of self-harm and depression.
[27] The offender began drinking alcohol and smoking cannabis from her early teenage years. She reported the onset of abuse of methamphetamine at around the age of 18, which has from that time been her main drug of abuse. She was enrolled in the MERIT program and admitted to the Lyndon Community Rehabilitation facility to stop her drug abuse on two occasions, but relapsed soon afterwards.
…
[30] Dr Allnutt expressed the opinion (at p 5) that when he saw the offender, ‘she was manifesting residual symptoms of an almost fully resolved psychosis’ and was developing insight into her prior experience of auditory hallucinations. He considered that there remained a risk that she could experience a relapse or a risk of deterioration in her mental state.
[31] Dr O'Dea reported (at p 10) that the offender ‘with apparent prolonged abstinence from substance abuse in custody in the context of psychiatric treatment with antipsychotic medication...has reportedly been free of psychotic symptoms for approximately 1 month and presented at interview without evident psychosis.’ He opined that the offender must remain ‘abstinent from alcohol and other drug use in the community in the long term in order to manage and minimise her risk of engaging in further offending behaviour in the community in the long term, and to manage and minimise the risk of her suffering further psychiatric symptomatology.’
[32] In his report dated 5 June 2012 (at p 6), Dr Nielssen made reference to the ‘recent return of symptoms suggests that she may in time develop a chronic form of mental illness.’ In his later report, he was of the opinion that the offender might have an underlying schizophrenic illness for which she would need long term treatment with antipsychotic medication. Dr Nielssen considered that the offender has a high risk of developing symptoms of psychosis if she was to resume using cannabis or amphetamine. He recommended a long period of supervision of her mental state and abstinence from illicit drugs after release.”

By the time she came to be sentenced by McClintock SC DCJ those opinions were somewhat out of date but his Honour stated:

“She has had residual symptoms of a multiplicity of psychiatric disorders which I do not repeat. They are essentially on the public record and in respect of her sentence and I simply need to note that I take them into account. As his Honour notes, and I note there are considerations obviously in respect of the offender’s mental illness which make her a less appropriate vehicle for general deterrence that might otherwise be applicable, nevertheless as again is noted by Price J those matters are not entirely irrelevant to the sentencing exercise. I have to bear in mind, of course, issues of general deterrence, specific deterrence, denunciation, a protection of the community and rehabilitation are in the act of intuitively synthesising a sentence. There is obviously a need for assistance to the offender in respect of her psychological and psychiatric condition. Once she is released there is obviously a need for her to be given ongoing assistance with drug and alcohol counselling. This offence appears to be symptomatic in part of severe disinhibition. The problem appears to be exacerbated by the relationship she had with Ms Skene who also obviously had a difficulty with alcohol on the date of the commission of the offence.”

In my view, the applicant’s circumstances and offending are not realistically comparable with those of the offender in Hollaway so as to provide any substantial basis for concluding the aggregate or indicative sentences in the present case are manifestly excessive.
Little involved an appeal against sentence for three offences to which the offender pleaded guilty arising from an incident that occurred when he entered his former girlfriend’s premises and bound her hands for a short period. The offences were: detaining a person for advantage which carried a maximum penalty of imprisonment for 14 years; assault for which the maximum penalty was imprisonment for 2 years; and aggravated enter dwelling house with intent to commit a serious indictable offence, intimidation, for which the maximum penalty was imprisonment for 14 years. For the assault offence the offender was sentenced to a fixed term of imprisonment for 12 months from 14 August 2008. In respect of each of the other two offences the offender was sentenced to a non-parole period of 12 months and a balance of term of 18 months. Both of those sentences commenced on 14 August 2008 so that the offender was to be released to parole on 13 August 2009.
At the sentence hearing, unlike the applicant in the present case the offender gave evidence explaining and expressing his remorse. He also relied on a report from a psychologist who tested the offender to assess his “cognitive functioning which may have relevance to the offences”. The psychologist opined as follows:

“The results indicate an overall level of intellectual functioning in the Average Range. The results do however indicate deterioration of cognitive functioning in several areas including, processing speed, complex attention, planning skill, delayed visual recall and verbal learning. The deterioration is consistent with that seen in persons with mild generalized brain injury. …
…
The generalised nature of the injuries he has suffered to his brain is likely to have compromised the mechanisms of mood production and mood inhibition. He has provided a history of impulsiveness and poor control over his temper. Both of these factors are likely to be due to brain damage.
…
… The brain injury is likely to have resulted in difficulty with impulse control, increased emotionality, difficulty with control of his emotions and difficulty with foresight and ability to maintain attention on more appropriate courses of action. Furthermore consumption of alcohol would further potentiate problems with impulse control and emotional control.”

Even though his report had been admitted into evidence without objection, the sentencing judge in that case rejected the opinions of the psychologist largely on the basis that there was no medical evidence of brain injury. On appeal, this Court, at [17] and [18], accepted that the validity of the psychologist’s opinion was based upon tests he had performed, not upon whether or not the offender had suffered specific brain injury or trauma, and thus should not have been rejected. Nonetheless, it was held that even if it were accepted that brain injury was likely to have had some part to play in the offending, it was of little moment. It was also held, at [21], that there was no merit in the submission that the mental disorder from which the offender suffered was of a kind that would warrant less regard being paid to general deterrence, because:

“[i]t simply was not of such severity, nor had it such an effect on the applicant’s behaviour either in the commission of the offence or otherwise, that the principles considered in cases such as R v Engert (1996) 84 A Crim R 67 and R v Hemsley [2004] NSWCCA 228 applied. It is not every abnormal mental condition that will engage these sentencing principles: see R v Dagwell [2006] NSWCCA 98.”

Finally, Howie J (Grove and Buddin JJ agreeing) concluded, at [22], that:

“the sentences imposed were moderate, if not lenient. They did little to reflect general deterrence in any event. The applicant was fortunate to receive concurrent sentences for the two more serious offences. I am far from satisfied that any lesser sentence is warranted simply because of the material in the psychologist report.”

Once again, in my view, this case involved particularly lenient sentences. The issues raised in the circumstances were not strikingly similar to those in the present case. The outcome in Little does not demonstrate that the First Sentence in the present case was outside the range of available sentences which could be imposed in all the circumstances.
The offending involved and the circumstances of the offenders in these three cases were quite diverse. It did not seem to me that there were any particular unifying principles in relation to sentencing for the offences to which the applicant pleaded guilty that could be derived from these cases. The applicant did not identify any such principles. The first two cases were Crown appeals that involved examples of sentences at the lowest end of the range, which were explicable by reference to the unusual circumstances of the offenders and the offending. The third case involved lenient sentences which were not set aside on appeal. These cases at most give an indication of the bottom of the low end of the range of available sentences for the types of offences involved in each case. They do not give an indication of the full range of appropriate indicative sentences or of the appropriate aggregate sentence which might be available in the circumstances of the present case.
In short, the outcomes in these cases did not demonstrate that the indicative sentences or the aggregate sentence in this case were so far outside the range of available sentences that there must have been some error.
In relation to the first ground of appeal, the applicant has not established that the aggregate sentence imposed by Colefax SC DCJ was unreasonable or plainly unjust or that it was so far outside the range of available sentences as to be manifestly excessive. Accordingly, I would reject the first ground of appeal in relation to the First Sentence.

Other matters

At various points in his submissions concerning the First Sentence, the applicant also made comments which did not appear to be specifically linked to any of the five grounds of appeal. In relation to those matters, the following remarks can be made.
The applicant submitted, in par 14 of his written submissions in relation to the First Sentence that the “statement of agreed facts … essentially involved” what was set out in subpars (a) to (o) of par 14. This was not correct. The applicant’s version of what occurred generally did not accurately reflect what was in the document headed “Agreed Facts on Sentence” or the facts found by the sentencing judge in his remarks on sentence.
Further, in his submissions in reply the applicant submitted:

“30. The appellant told the victim “I am going to kill you, and then the kids and then kill myself”. There is no truth to this statement as crown failed to call upon crown’s key witness.” (Underlining in original.)

The words quoted in that par 30 were, contrary to that submission, said by the applicant to his former wife during the incident, as found by his Honour based directly on par 31 of the Agreed Facts on Sentence.

Similarly, at par 31 of his submissions in reply, the applicant denied that he had duct tape in his pocket when searched by police at the scene, contrary to what was expressly stated in par 40 of the Agreed Facts on Sentence which was accepted by the sentencing judge.
Similar submissions were repeated at par 53 of the applicant’s submissions in reply where it was said: “[a]s there is no truth to this duct tape and death threats, as it is a statement by the police to help their case”.
No ground of appeal sought to challenge the sentencing judge’s factual findings. No sufficient basis for rejecting the facts as stated in the Agreed Facts on Sentence or as found by the sentencing judge was established. The applicant should not be permitted, in relation to the present appeal, to depart from the facts as stated in the Agreed Facts on Sentence and accepted by Colefax SC DCJ. His Honour’s acceptance of the facts as stated in the Agreed Facts on Sentence was consistent with sentencing principles: GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [30].
Finally, Colefax SC DCJ was criticised in par 45 of the applicant’s submissions in reply as follows:

“a) The appellant did not give evidence on sentencing. The appellant was in court during sentencing. However, the appellant was not called by his legal team nor by the crown.
b) A letter of support from the appellant’s brother in law (victim’s brother) on Exhibit 3. There was no reason for the victim’s brother to give a letter of support. This was a failure of the court to identify this letter of support as it was from the appellant’s sister’s husband.
c) The learned sentencing judge erred in not finding and failing to identify of such supporting letter in resulting or procedural fairness and miscarriage of justice.” (Underlining in original.)

“Ordinarily, where a sentencing judge is accumulating sentences and the non‑parole period is to become greater than 75% of the total sentence, it is preferable that some express comment in the remarks on sentence makes it clear that the Judge is aware of the impact of the accumulation.”

That preferable course is not strictly engaged in the present case since the effect of the accumulation of the Second Sentence on the First Sentence did not lead to the overall non-parole period being greater than 75% of the effective total sentence.
Nonetheless, where there have been findings of special circumstances but no, or no significant, adjustment of the statutory ratio of the effective non-parole period to the overall effective sentence when the combined effect of the sentence being imposed and an earlier sentence was considered, this may indicate either that such a result was specifically intended by the later sentencing judge, or that there has been some inadvertence or miscalculation on the part of that judge. Where it can be concluded that it was the result of inadvertence or miscalculation, error will have been established: Haines v R [2021] NSWCCA 149 at [52] (Hoeben CJ at CL, N Adams J agreeing); GP at [22] to [26].
In the present case, Sutherland SC DCJ specifically considered, at [61] to [75]:

whether the sentence should commence at the expiration of the previous non-parole period in light of the similarity of the circumstances to those covered by s 56 of the Sentencing Procedure Act and the need to give effect to sufficient general deterrence to demonstrate that violence and disorder between prisoners in custody will not be tolerated;

the totality principle; and

the overall effect of the accumulation of the sentence and non-parole period his Honour proposed to impose.

It is thus clear beyond dispute that his Honour adverted to the impact of accumulation on the proportion between the effective head sentence and the effective non-parole period, and that the non-parole period for the Second Sentence was not set inadvertently or as a result of miscalculation. In other words, this is a case where the non-parole period for the Second Sentence and the ratio of the total period in custody to the effective overall sentence reflected what the sentencing judge specifically intended. In these circumstances, there was no obligation on Sutherland SC DCJ to give effect to his finding of special circumstances by further reducing the effective non-parole period compared to the total effective sentence, when determining the sentence for the offence of intentionally causing grievous bodily harm. The course adopted by his Honour was open to him in the proper exercise of the sentencing discretion.
Consequently, no error has been established as contended by the applicant under ground 4 in relation to the Second Sentence.

Ground 1

As has been observed above, the first ground of appeal in relation to the Second Sentence was that it was manifestly excessive.
The relevant principles have already been set out when the ground of manifest excess was dealt with in relation to the First Sentence and they are not repeated here.
The applicant relied upon four cases said to be comparable which, it was contended, demonstrated that the Second Sentence was manifestly excessive: Banks v R [2018] NSWCCA 41 (Banks); Jeremiah; R v Windle [2012] NSWCCA 222 (Windle); and R v Anderson (Court of Criminal Appeal (NSW), Lee CJ at CL, Mathews and Sharpe JJ, 9 April 1991, unrep) (Anderson).
In Banks, the offender was resentenced on appeal to imprisonment for 3 years and 9 months, with a non-parole period of 2 years and 9 months. He had pleaded guilty to a charge of reckless wounding in company under s 35(3) of the Crimes Act which carried a maximum sentence of 10 years’ imprisonment and a standard non-parole period of 4 years. The offence was found to have been at the mid range of objective seriousness. A discount of 25% was applied because of his plea of guilty.
At the time of the offence in question, on 15 July 2015, the offender was serving a sentence of imprisonment for 20 months with a non-parole period of 15 months, commencing on 2 October 2014. That non-parole period expired on 1 January 2016. He was also on remand in respect of several charges of armed robbery and other related offences. For those he was dealt with on 15 April 2016, and was sentenced to an aggregate term of 14 years, with a non-parole period of 10 years, dating from 1 January 2016. That non-parole period was to expire on 31 December 2025, the commencement date of the sentence the subject of this Court’s decision. In addition, on 28 August 2016, he was sentenced to imprisonment for 8 months for assaulting an officer in the execution of his duty. That sentence dated from the day it was imposed and expired on 24 April 2017.
It was held that the appropriate starting point was imprisonment for 5 years, to which the discount of 25% was then applied, leading to a head sentence of 3 years and 9 months. The commencement date of the sentence and the non‑parole period of 2 years and 9 months were set having regard to the need for extended supervision after 14 years and 6 months of continuous incarceration, even though the proportion between effective non-parole period and overall sentence became roughly 80%.
The circumstances of that case are quite different from the circumstances of the applicant and his offending. No guiding principles which are specifically applicable in the present case were laid down. In short, Banks does not provide any significant support for the proposition that the sentence of 5 years in the present case was so far outside the range of available sentences as to be manifestly excessive.
Jeremiah has already been referred to in the context of consideration of s 56 of the Sentencing Procedure Act. In that case, the Crown appealed against a sentence imposed for the offence of assault occasioning actual bodily harm in company contrary to s 59(2) of the Crimes Act as being manifestly inadequate. The offence had been committed while the offender was on remand in custody for other offences. The sentence under appeal for the assault was imprisonment for 1 year and 6 months with a non-parole period of 1 year and 1 month. The commencement date of the sentence meant that the whole of the non-parole period for the assault offence in custody was concurrent with the non-parole periods for the sentences for offences committed earlier. This Court held, at [6]:

“As a result of the adoption of these commencement dates, the very serious assault for which the respondent was sentenced by his Honour Judge Farmer SC has for all practical purposes gone unpunished. The principle of totality requires the Court to consider whether an aggregation of sentences to be imposed is a ‘just and appropriate measure of the total criminality involved’: Postiglione v The Queen (1997) 189 CLR 295 at 307 – 308; [1997] HCA 26; Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70; R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [15]. The imposition of an entirely concurrent term by the learned sentencing judge produced an outcome which is unjust and inappropriate. It fails to recognise or to reflect that the circumstances in which this assault against a fellow inmate took place were different from and unconnected with the circumstances of the prior offences. The Remarks on Sentence do not reconcile the concurrence of the sentences with the disparate character and occasion of the respective offences. The Remarks are silent as to any justification his Honour may have seen for concurrency and backdating.”

The offence for which the offender was to be sentenced carried a maximum penalty of 7 years’ imprisonment. He pleaded guilty, but not at the first opportunity, and it was unclear precisely what discount had been applied. He was only 19 years old at the time of the offending. Further and most significantly, in resentencing, this Court was required to consider parity with the sentences imposed on his co-offenders. In that regard, the sentence imposed on one of those co-offenders was said to be “at the limit of the available scope for leniency for his offence” but, for reasons of parity, the Court said that the offender should be treated equally. As a result, after allowing a 10% discount for the guilty plea, the offender’s sentence was a non-parole period of 1 year and 3 months and a balance of term of 5 months.
Given the different offence for which the applicant was to be sentenced, the other differences in the objective and subjective circumstances and the fact that parity required the offender in Jeremiah to receive a sentence “at the limit of the available scope for leniency for his offence”, it does not appear to me that that case is relevantly comparable to the present. Nor does it assist to establish that the sentence imposed on the applicant was outside the range of available sentences or that it was otherwise clearly unreasonable or unjust.
Windle was another Crown appeal where this Court set aside the sentence originally imposed and sentenced the offender to imprisonment for 5 years and 4 months, with a non-parole period of 4 years, for the offence of attempted strangling of a fellow inmate at Long Bay Gaol with intent to murder, after reduction of 25% for the plea of guilty. The maximum penalty for this offence was 25 years, with a standard non-parole period of 10 years.
Basten JA (Price J agreeing, S G Campbell J agreeing but with differing reasons) summarised aspects of the relevant circumstances in that case as follows, at [59]:

“The two factors which warrant a significant degree of departure from the sentence which the objective circumstances of the offending would appear to require are, firstly, the serious influence of mental illness on the offending and, secondly, the voluntary disclosure of the intention to kill. Nevertheless, an appropriate sentence cannot be less than seven years imprisonment. That figure, reduced by 25% for the plea of guilty gives a sentence of five years, four months (64 months). That sentence should consist of a non-parole period of four years and a balance of term of 16 months.”

Those factors in Windle were not present at all, or to the same degree, in the applicant’s case. In any event, the starting point of 7 years’ imprisonment, given the offender’s serious mental health issues and the voluntary disclosure of the intention to kill which led to his being charged with a more serious offence than would otherwise have been the case indicates, in my view, that the sentence imposed on the applicant in the present matter was not outside the range of available sentences.
Anderson was a case where the offender was sentenced to imprisonment for 15 months for the offence of intentionally inflicting grievous bodily harm, for which the maximum penalty was 25 years’ imprisonment. The offender had pleaded guilty. In this Court, the offender’s application for leave to appeal against that sentence was refused.
The objective facts were that after an argument with his wife the offender went to the garage, where his wife was attending to the dog, and there attacked his wife with a hammer, striking her about the skull and inflicting severe wounds.
In refusing leave to appeal against the severity of the sentence, Lee CJ at CL (Mathews and Sharpe JJ agreeing) observed:

“… one would be startled by the lightness of the sentence unless one were to go outside the objective facts into the real circumstances which brought about this crime.
It is unnecessary for me to refer to the psychiatric evidence or the evidence given otherwise in the sentencing procedure, for it is apparent from a reading of his Honour’s judgment that he took into account every single factor which could be taken into account favourably to the applicant. Indeed, counsel for the applicant in his submissions was not able to point to any matter which his Honour had overlooked or had not taken into account in the appellant’s favour which could be regarded as an error. The only point made was that the sentence of 15 months imprisonment was too great but in light of the gravity of the crime it is apparent that his Honour had passed the lowest possible sentence.”

It is clear that Anderson was a most unusual case in which the offender’s wife suffered from a paranoid condition and had threatened her husband with physical violence in serious ways so that he was genuinely afraid of her and what might happen if he did not keep up his guard. It does not appear that any similarities that that case might have to the present are significant in relation to the question of whether the Second Sentence was manifestly excessive. The fact that, in the extraordinary circumstances of Anderson, the offender was sentenced, after pleading guilty, to a sentence described as “the lowest possible sentence” indicates that the sentence in that case is not a suitable yardstick against which to compare the applicant’s sentence for the purpose of determining whether it is manifestly excessive. The applicant’s offending and circumstances were not such as to justify the imposition of the lowest possible sentence.
The applicant was relevantly sentenced in respect of the offence of intentionally causing grievous bodily harm for which the statutory guideposts are a maximum penalty of 25 years’ imprisonment and a standard non-parole period of 7 years. The learned sentencing judge found that the objective seriousness of the offence fell below the mid range of objective seriousness and towards the lower end of the range. The offence was committed against a fellow inmate in custody. The applicant was not entitled to any discount for a plea of guilty. The applicant’s subjective case involved both factors which tended to mitigate the sentence and factors which pointed in the other direction. The applicant’s expressions of remorse included those put before the sentencing judge by way of the eight page letter sent after the sentencing hearing, about which his Honour expressed “a lingering concern that the correspondence might properly be objectively characterised as manipulative”. Notwithstanding this, it was found that the letter was “not inconsistent with a degree of self-reflection which might yet provide a glimmer of hope for some future appropriate rehabilitation”. Ultimately, the sentence imposed was imprisonment for 5 years, with a non‑parole period of 2 years and 6 months which reflected a generous allowance for special circumstances.
The cases relied on by the applicant as being comparable do not, in my view, demonstrate that the Second Sentence was so far outside the range of sentences available, even taking into account the particular subjective factors identified by the applicant in his written submissions at par 12(a) to (j), that there must have been an error or that the sentence was unreasonable or plainly unjust.
For all of these reasons, I would reject the first ground of appeal in respect of the Second Sentence.

Other matters

It can be noted, once again, that the applicant in his written submissions obviously did not accept certain of the sentencing judge’s findings of fact in relation to the circumstances of the offending while in custody. In addition, the facts in relation to the Second Sentence were not “reduced to a statement of agreed facts” as stated in par 10 of the applicant’s written submissions, nor did his Honour find that the applicant “committed the offence due to (self-defence) and that Mr [Jafari] has been standing over him and assaulting the [applicant] whilst [sharing] the cell together”, as asserted by the applicant in subpar 12(c). No ground of appeal, however, sought to challenge the sentencing judge’s findings and all of the those findings appeared to be open on the material before his Honour and in light of the jury’s verdict.

Conclusion in relation to the Second Sentence

For all of these reasons, none of the grounds of appeal seeking to challenge the Second Sentence has merit.

Unsworn material and correspondence after the hearing

Finally, a comment should be made about two aspects of the way in which material came before the two sentencing judges.
In both sentencing proceedings, unsworn evidence by way of letters (dated 11 February 2017 and 7 November 2017 respectively) from the applicant to the judges was before the Court. As this Court (Bellew J, Bathurst CJ and Adamson J agreeing) in Lai v R [2021] NSWCCA 217 at [80] has recently said, this practice is to be strongly discouraged, especially in situations where such unsworn evidence should attract little or no weight.
In addition, after the completion of the sentence hearing, the applicant personally sent the eight page letter dated 24 January 2018 to Sutherland SC DCJ, without leave of the Court and even though he had been represented by counsel and solicitors at the sentence hearing and the eight page letter was not sent with their agreement or approval. The Crown opposed the reception of this material. In the circumstances, the learned sentencing judge would have been entitled to refuse to accept that correspondence and to disregard it entirely. The principles were set out in Roach v R [2019] NSWCCA 160; 344 FLR 429. In that case, Bathurst CJ, Bell P and Johnson J reviewed the particular circumstances of that case and relevant authorities, saying:

“186. Following the hearing of the matter in the Court on 23 April 2019, the Registrar of the Court of Criminal Appeal received an email from the applicant’s solicitor indicating that the applicant personally sought to make further submissions (over 60 pages and three folders of material). The Registrar was informed that these submissions had been prepared by the applicant himself and had not been endorsed by his counsel or solicitor.
187. The Crown opposed the applicant’s request to furnish further submissions and material to the Court.
188. The Court determined not to receive those submissions and material and the parties were so informed.
189. The applicant was represented at the hearing of his application for leave to appeal against conviction and sentence by experienced senior and junior counsel. Two sets of written submissions were furnished to the Court by counsel on behalf of the applicant, and senior counsel addressed the Court at the hearing on 23 April 2019, at the conclusion of which the Court reserved judgment.
190. It is noteworthy that the applicant’s counsel and solicitor were not seeking to make further submissions to the Court. They were not prepared to endorse and advance these submissions. Rather, whilst continuing to have counsel and solicitor on the record for the purpose of the proceedings, the applicant sought himself to make submissions to the Court together with the provision of additional material.
191. In refusing this application by the applicant, the Court had in mind what was said by McHugh J in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 330; [2003] HCA 28 at [29]-[31]:
‘29 Parties to matters before the Court need to understand that, once a hearing in the Court has concluded, only in very exceptional circumstances, if at all, will the Court later give leave to a party to supplement submissions. Parties have a legal right to present their arguments at the hearing. If a new point arises at the hearing, the Court will usually give leave to the parties to file further written submissions within a short period of the hearing - ordinarily seven to fourteen days. But a party has no legal right to continue to put submissions to the Court after the hearing. In so far as the rules of natural justice require that a party be given an opportunity to put his or her case, that opportunity is given at the hearing.
30 This is not the first time that this Court has had to emphasise that the hearing is the time and place to present arguments. In Carr v Finance Corporation of Australia Ltd [No 1] [(1981) 147 CLR 246 at 258], Mason J said:

“The material was submitted without leave having been given by the Court. The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions.”

31 Once the hearing has concluded, the workload of the Court makes it impossible for the Court to give leave to file further submissions - with all the attendant delay in the Court’s business by a fresh round of submissions. Efficiency requires that the despatch of the Court’s business not be delayed by further submissions reflecting the afterthoughts of a party or - as perhaps is the case in this appeal - some dissatisfaction with the arguments of the party’s counsel.’

192. In Nguyen v R [2008] NSWCCA 322, this Court refused to receive an unsolicited document from counsel containing supplementary written submissions furnished after the hearing of the appeal. In the course of explaining this ruling, Tobias JA (James and Price JJ agreeing) said at [30]-[31]:
‘30. The time and place to present argument and, if necessary, to seek leave to file supplementary submissions, is during the hearing of the appeal. It is inappropriate to file such submissions after the conclusion of the hearing and to seek the Court’s leave to do so at the same time. Such a practice is to be discouraged and should extend to appeals in criminal matters save in exceptional circumstances.
31. An example of such a circumstance would be where, after judgment was reserved, an authoritative decision of an appellate court directly on point is handed down. Obviously, it should be brought to the Court’s attention and leave sought, which is likely to be granted, to file a supplementary submission explaining how the new decision might affect the outcome of the appeal. In the present case, what appears to be, with respect, an afterthought of counsel does not so qualify.’”

These principles apply to unrepresented litigants, especially where they have been represented during the hearing but subsequently dismiss their lawyers or withdraw their instructions, as occurred in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28: see McHugh J’s comments in that case at [27]-[31] and Heydon J’s comment at [143].

Conclusion

For all of these reasons, none of the grounds of appeal should be upheld. Nonetheless, since the grounds of appeal were arguable, leave to appeal should be granted but the appeal in each matter should be dismissed.
Accordingly, I propose that the Court should order:

The applicant is granted an extension of time in which to file a notice of application for leave to appeal in the matters with file numbers 2016/0019453, 2015/00101365 and 2016/000580335.

The applicant has leave to appeal in each of the matters 2016/00194535, 2015/00101365 and 2016/00058033.

The appeal in each of the matters 2016/00194535, 2015/00101365 and 2016/00058033 is dismissed.

FAGAN J: I agree with Wright J.
In relation to the sentence imposed by Judge Sutherland for the offence of causing grievous bodily harm with intent, committed while the applicant was on remand, I observe that the applicant’s submissions fail to recognise specific considerations that apply to sentencing for a crime of violence committed whilst in custody.
As Wright J has pointed out, the assertion in ground 2 that “too much weight” was given to general deterrence does not identify a legally recognisable error in the discretionary exercise of sentencing. The applicant’s arguments in support of ground 2 also overlook this Court’s repeated statements that general deterrence is particularly important in sentencing for prison violence. Wright J has cited R v Fyffe, wherein Barr J explained the need for deterrence in this context, both to support Corrective Services officers in maintaining order and physical safety within institutions under their administration and to protect inmates. Both objectives were reiterated in R v Jeremiah and again in Tohifolau v R [2018] NSWCCA 283, where the Court said this at [49]

The prevention of violence in correctional facilities is essential to their functioning in the interests of the State and to the protection of inmates against each other. Courts sentence prisoners to be deprived of their liberty, not to suffer brutality at the hands of other prisoners.

Ground 3, concerning Judge Sutherland’s sentence for the offence committed on remand being accumulated on the non-parole period of Judge Colefax’s aggregate sentence for the domestic violence matters, is interrelated with ground 4, concerning the ratio of the non-parole period in the “total effective sentence”. Again, these grounds show insufficient regard for considerations that are specific to sentencing for prison violence. In R v Jeremiah the sentencing judge had failed to accumulate, with the result that the applicant’s sentence for an assault occasioning actual bodily harm, committed against another inmate whilst both were on remand, was made wholly concurrent with sentences for earlier unrelated offences that had been carried out in the community and that were the reason for the applicant’s remand. This Court upheld a Crown appeal and made the sentence for the assault in custody cumulative on the non-parole period for the earlier offences. Where an offence has been committed in prison, accumulation will usually be required because making the sentence concurrent with a sentence that the offender is already serving, or with a period of remand to which a later-imposed a sentence is backdated, will have the substantive effect that no additional punishment is meted out. That will usually be an unacceptable outcome, because of the need for deterrence.
By his reference in ground 4 to the “total effective sentence”, the applicant evidently means the combined effect of the sentence imposed by Judge Sutherland for the offence committed whilst on remand and Judge Colefax’s aggregate sentence for the domestic violence offences. In Tohifolau v R the applicant had caused grievous bodily harm to another inmate while both were serving terms of imprisonment at Wellington. For this the applicant continued to be detained, on remand, after expiry of the sentence that he had originally been serving. When the applicant was ultimately dealt with for the assault occasioning grievous bodily harm, it was ordered that his sentence should commence from the end of his original non-parole period. He appealed on the ground, inter-alia, that this did not incorporate any reduction of the ratio of the non-parole period, on account of special circumstances, in relation to the “total effective sentence”; that is, in relation to the combination of sentences for the original offending and for the offence committed custody.
The appeal in Tohifolau v R was dismissed. The Court’s reasons included the following:

[34]   His Honour’s decision to commence the sentence which he imposed from the date of expiry of the non-parole period of the pre-existing sentence accorded with the spirit and legislative intent of [s 56 of the Crimes (Sentencing Procedure) Act], although the section was not directly applicable. The learned judge recognised that the sentences [that the applicant was serving at the time of the offence committed in custody] were short and the applicant would, but for this further offence in custody, have been entitled to release on parole two months [after the prison assault], from 9 October 2015. That was the appropriate date for commencement of the sentence his Honour fixed, rather than the date of expiry of the effective head sentence (9 October 2016).
[35]   The lack of connection between the index offence and the earlier criminal episodes [for which the applicant was serving time when the offence in custody occurred] did not, in the circumstances, call for his Honour to adjust the sentence he imposed according to some view of overall criminality. Trying to form a view of overall criminality spanning these disparate events would have been a meaningless exercise.
[…]
[37]   Irrespective of what his Honour may have intended, the relevant consideration is the ratio contained in the individual sentence imposed for [the offence committed in custody]. There would have been no justification for reducing the non-parole period in that sentence with a view to achieving some target ratio in the combined effect of his Honour’s sentence and the pre-existing sentence. […]

For equivalent reasons in the present case, I consider that the accumulation of sentence for the offence committed in custody was appropriate; that the applicant’s argument concerning a “total effective sentence”, for the domestic violence matters and for the unrelated instance of prison violence, is misconceived; and that there would be no justification for interfering with either sentence in pursuit of an adjusted ratio of the non-parole period across the two terms of imprisonment considered together.

**********

Endnote

Decision last updated: 05 November 2021

Medium Neutral Citation:	Kuruppu v R [2021] NSWCCA 261
Hearing dates:	27 August 2021
Date of orders:	05 November 2021
Decision date:	05 November 2021
Before:	Meagher JA at [1]; Wright J at [2]; Fagan J at [227]
Decision:	(1) The applicant is granted an extension of time in which to file a notice of application for leave to appeal in the matters with file numbers 2016/0019453, 2015/00101365 and 2016/000580335. (2) The applicant has leave to appeal in each of the matters 2016/00194535, 2015/00101365 and 2016/00058033. (3) The appeal in each of the matters 2016/00194535, 2015/00101365 and 2016/00058033 is dismissed.
Catchwords:	CRIME — appeals — appeal against sentence — application for leave to appeal — extension of time in which to appeal — manifest excess — reliance on cases said to be comparable — sentences not manifestly excessive — extension of time and leave granted — appeal dismissed CRIME — appeals — appeal against sentence — application for leave to appeal — extension of time in which to appeal — misapplication of principle — whether sentencing judge erred in rejecting expert opinions of psychologist — whether sentencing judge failed to find special circumstances or give practical effect to such a finding — whether sentencing judge erred in placing too much weight on general deterrence — whether sentencing judge failed to request sentencing assessment report — whether excessive accumulation of sentences — no House v The King errors — extension of time and leave granted — appeal dismissed CRIME — apprehended violence order — contravene apprehended violence order CRIME — property offences — break and enter with intent to commit serious indictable offence — circumstances of aggravation CRIME — violent offences — common assault — choking, suffocation or strangulation — cause grievous bodily harm with intent WORDS AND PHRASES — “convicted inmate” — Crimes (Sentencing Procedure) Act 1999 (NSW), s 56
Legislation Cited:	Crimes (Administration of Sentences) Act 1999 (NSW), s 4 Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 6, 7, 12, 44, 47, 53A, 56, 69, 76, 80, 88 Crimes Act 1900 (NSW), ss 33, 35, 37, 59, 61, 113 Criminal Appeal Act 1912 (NSW), ss 5, 6 Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
Cases Cited:	Aslan v R [2014] NSWCCA 114 Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 Banks v R [2018] NSWCCA 41 Chung v Anderson [2004] NSWCA 321 CM v R [2020] NSWCCA 136 Delaney v R [2013] NSWCCA 150; (2013) 230 A Crim R 581 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 GP v R [2017] NSWCCA 200 Haines v R [2021] NSWCCA 149 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jackson v R [2021] NSWCCA 15 JM v R [2014] NSWCCA 297; 246 A Crim R 528 Lai v R [2021] NSWCCA 217 Little v R [2009] NSWCCA 113 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Moodie v R [2020] NSWCCA 160; 284 A Crim R 87 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Pannowitz v R [2016] NSWCCA 13 Primmer v R [2015] NSWCCA 155; 71 MVR 300 R v Anderson (Court of Criminal Appeal (NSW), Lee CJ at CL, Mathews and Sharpe JJ, 9 April 1991, unrep) R v Baker [2000] NSWCCA 85 R v Fyffe [2002] NSWSC 751 R v Hollaway [2013] NSWSC 218 R v Hollaway [2016] NSWCCA 166 R v Israil [2002] NSWCCA 255 R v Jeremiah [2016] NSWCCA 241 R v Toohey [2019] NSWCCA 182 R v Windle [2012] NSWCCA 222 R v XX [2009] NSWCCA 115; 195 A Crim R 38 Roach v R [2019] NSWCCA 160; 344 FLR 429 Tammer-Spence v R [2021] NSWCCA 90 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Tohifolau v R [2018] NSWCCA 283 Tsiakas v R [2015] NSWCCA 187 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Yi Hong Puan v R [2009] NSWCCA 194
Category:	Principal judgment
Parties:	Sampath Kuruppu (Applicant) Regina (Respondent)
Representation:	Applicant (self-represented) Counsel: Elizabeth Wilkins SC (Respondent) Solicitors: Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s):	2015/00101365; 2016/00058033; 2016/00194535
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Citation: R v Kuruppu [2018] NSWDC 322 Date of Decision: 17 March 2017; 13 April 2018 Before: Colefax SC DCJ; Sutherland SC DCJ File Number(s): 2015/00101365; 2016/00058033; 2016/00194535

Count	Offence	Indicative sentence
1	Intentionally choking his wife reckless as to rendering her incapable of resisting contrary to s 37(1) of the Crimes Act 1900 (NSW) for which the maximum penalty is 10 years’ imprisonment.	4 years and 6 months
2	Aggravated break and enter with intent to commit serious indictable offence, knowing persons inside, contrary to s 113(2) of the Crimes Act for which the maximum penalty is 14 years’ imprisonment.	5 years and 3 months
Section 166 certificate	Contravention of an apprehended violence order, contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) for which the maximum penalty is 2 years’ imprisonment or 50 penalty units or both.	18 months
Breach of s 9 bond	Common assault contrary to s 61 of the Crimes Act for which the maximum penalty is 2 years’ imprisonment.	6 months