Leal v The King

[2025] NSWCCA 92

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Leal v R [2025] NSWCCA 92

Hearing dates:

5 May 2025

Date of orders:

16 June 2025

Decision date:

16 June 2025

Before:

Harrison CJ at CL at [1]
Wright J at [2]
Huggett J at [3]

Decision:

(1) Grant leave to appeal

(2) Dismiss the appeal

Catchwords:

CRIME – appeals – appeal against sentence – pleas of guilty - whether the sentencing judge erred by discounting the aggregate sentence rather than the indicative sentences or whether the sentencing judge’s remarks are insufficient in disclosing how the discount was applied – whether the sentence was manifestly excessive

Legislation Cited:

Crimes Act 1900 (NSW), ss 33B(1)(a), 51B(1), 86(1)(b), 154A(1)(a), 195(1)(a)

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 21A(2)(j), 53A(2)(b)

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

Criminal Procedure Act 1986 (NSW), s 166

Firearms Act 1966 (NSW), s 7A(1)

Road Rules 2014 (NSW), s 287(1)

Road Transport Act 2013 (NSW), s 53(3)

Cases Cited:

Acton v R [2024] NSWCCA 92

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

Elsaj v R [2017] NSWCCA 124

Ibbotson (a pseudonym) v R [2020] NSWCCA 92

JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297

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

Ladas v R [2022] NSWCCA 160

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

Owens v R [2023] NSWCCA 198

R v Manok [2017] NSWCCA 232

RO v R [2019] NSWCCA 183

Usaia v R [2023] NSWCCA 57

Weiss v R [2020] NSWCCA 188

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Trevor Leal (Applicant)
Rex (Respondent)

Representation:

Counsel:
J Brock (Applicant)
B Costello (Respondent)

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

File Number(s):

2022/00322008; 2022/00322017

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

13 March 2024

Before:

Harris DCJ

File Number(s):

2022/00322008; 2022/00322017

HEADNOTE

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

Trevor Leal (the applicant) sought leave to appeal against the sentence imposed on him by Judge Harris on 13 March 2024 in the District Court of New South Wales.

The applicant was sentenced in relation to 13 offences committed on 27 October 2022. Four of those offences were committed to the District Court for sentence upon the applicant entering pleas of guilty in the Local Court. Nine of the offences were before the sentencing judge as related offences pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). One additional matter committed on 6 September 2022 was taken into account on a Form 1 document. All of the offences were committed while the applicant was on parole.

The sentencing judge imposed an aggregate sentence of imprisonment of 7 years and 6 months commencing on 27 March 2023 and expiring on 26 September 2030, with a non-parole period of 4 years and 3 months expiring on 26 June 2027.

The issues arising on the appeal were:   

Ground 1A: Her Honour erred in discounting the aggregate sentence, or alternatively,

Ground 1B: Her Honour’s remarks are insufficient in disclosing the application of discount.    

Ground 2: The sentence is manifestly excessive.

The Court held per Huggett J (Harrison CJ at CL and Wright J agreeing), granting leave to appeal, and dismissing the appeal:

As to Ground 1A, alternatively Ground 1B:

The sentencing judge did not err in discounting the aggregate sentence. The logical inference to be drawn from the sentencing remarks, when read as a whole, is that her Honour understood and correctly applied a 25% discount in recognition of the applicant’s multiple pleas of guilty: per Huggett J at [84]-[87] (Harrison CJ at CL at [1] and Wright J at [2] agreeing).

Acton v R [2024] NSWCCA 92; Elsaj v R [2017] NSWCCA 124; Ibbotson (a pseudonym) v R [2020] NSWCCA 92; JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297; Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; Ladas v R [2022] NSWCCA 160; Owens v R [2023] NSWCCA 198; R v Manok [2017] NSWCCA 232; RO v R [2019] NSWCCA 183; Usaia v R [2023] NSWCCA 57; Weiss v R [2020] NSWCCA 188, cited.

As to Ground 2:

The applicant failed to establish that the sentence imposed upon him is unreasonable or unjust. The imposition of a significant head sentence (7 years and 6 months) with a significant reduction in the non-parole period (4 years and 3 months) was within the sentencing judge’s discretion and must be viewed in light of factors, including the objective seriousness of the offending, the applicant’s parole history and the fact the offences were committed while on conditional liberty: per Huggett J at [95]-[100] (Harrison CJ at CL at [1] and Wright J at [2] agreeing).

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

JUDGMENT

1. HARRISON CJ at CL: I agree with Huggett J.

2. WRIGHT J: I agree with the orders proposed by Huggett J for the reasons given by her Honour.

3. HUGGETT J: The applicant Trevor Leal seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against an aggregate sentence imposed by Harris DCJ having appeared for sentence in relation to 13 offences committed on 27 October 2022 (attached to charge number H 91900458).

4. Four offences were committed to the District Court for sentence upon the applicant entering pleas of guilty in the Local Court. The remaining nine offences were before the sentencing judge as related offences pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).

5. The four offences committed for sentence are as follows:

1. Take and drive conveyance without consent of the person with lawful possession pursuant to s 154A(1)(a) of the Crimes Act 1900 (NSW) with a maximum penalty of 5 years imprisonment (Sequence 10).

2. Knowing police were in pursuit and there was a requirement to stop, drive recklessly pursuant to s 51B(1) of the Crimes Act 1900 (NSW) with a maximum penalty of 3 years imprisonment (Sequence 8).

3. Detain with intent to obtain an advantage, namely, to escape lawful apprehension pursuant to s 86(1)(b) of the Crimes Act 1900 (NSW) with a maximum penalty of 14 years imprisonment (Sequence 6).

1. When sentencing the applicant for Sequence 6, the sentencing judge took into account an offence on a Form 1 document committed on 6 September 2022 of possessing an unauthorised firearm pursuant to s 7A(1) of the Firearms Act 1996 (NSW) (“the Form 1 offence”).

4. Use an offensive weapon, namely a shortened firearm, with intent to prevent lawful apprehension pursuant to s 33B(1)(a) of the Crimes Act 1900 (NSW) with a maximum penalty of 12 years imprisonment (Sequence 7).

6. Six of the nine related offences were offences of recklessly damaging property pursuant to s 195(1)(a) of the Crimes Act 1900 (NSW) with a maximum penalty of 5 years imprisonment but a jurisdictional limit of 2 years imprisonment. These offences involved damage caused by the applicant to the following:

1. a Honda Civic (Sequence 12);

2. a Toyota C-HR (Sequence 13);

3. a Volkswagen Amarok (Sequence 14);

4. a Toyota Landcruiser (Sequence 15);

5. a Toyota Corolla the property of Pacific Automotive Holdings Pty Ltd (that being the vehicle the subject of Sequence 10) (Sequence 17); and

6. a fence the property of Housing NSW (Sequence 16).

7. The sentencing judge nominated the following indicative sentence for the offences described in [5] and [6] above (“the sentence offences”):

• Sequence 10: 15 months imprisonment.

• Sequence 8: 15 months imprisonment.

• Sequence 6 and taking into account the Form 1 offence: 5 years imprisonment.

• Sequence 7: 4 years and 1 month imprisonment.

• Sequences 12 to 17: for each, 3 months’ imprisonment.

8. The sentencing judge imposed an aggregate sentence of imprisonment of 7 years and 6 months with a non-parole period of 4 years and 3 months in relation to the sentence offences. As all offences were committed whilst on parole, the applicant’s parole was revoked, and he was ordered to serve the balance of parole. The aggregate sentence was partially accumulated by 5 months on the balance of parole.

9. The remaining three related offences consisted of one offence of driving whilst never licenced pursuant to s 53(3) of the Road Transport Act 2013 (NSW) with a maximum penalty of 20 penalty units (Sequence 9) and two offences of failing to exchange particulars after a crash pursuant to s 287(1) of the Road Rules 2014 (NSW) with a maximum penalty of 20 penalty units (Sequences 2 and 3). The sentencing judge dealt with each of these offences pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Grounds of Appeal

10. The applicant raises two grounds of appeal:

1. Ground 1A: Her Honour erred in discounting the aggregate sentence, or alternatively, Ground 1B: Her Honour’s remarks are insufficient in disclosing the application of discount.

2. Ground 2: The sentence is manifestly excessive.

11. For the reasons that follow, I propose that leave to appeal be granted and that both grounds be dismissed.

The offences

12. The applicant was sentenced in accordance with a Statement of Agreed Facts. What follows is drawn from that document and the sentencing judgment.

The Form 1 offence

13. On 6 September 2022 the applicant was a passenger in a vehicle being driven by his partner, Ms Bowsher. The vehicle was stopped by police and searched. A homemade firearm with a live round of ammunition was located under the seat occupied by the applicant. He initially denied knowledge of the firearm to the police.

14. The firearm was a pistol and was found to be in working order.

15. The applicant was charged with the Form 1 offence and released on bail.

16. On 5 October 2022 the applicant told his parole officer that he took the pistol out of his pocket and put it under the seat. When asked why he was in possession of a gun given he was on parole for armed robbery, the applicant said it was for his protection.

Sequence 10

17. On 26 October 2022 the applicant visited Ms Bowsher at her home. She lived with a Ms Fensom who had lawful possession of a white Toyota Corolla hire car provided under her insurance policy (“the hire car”).

18. Ms Fensom went to bed around 10:30pm to 11:00pm. The applicant took the keys to the hire car and drove the hire car (Sequence 10).

Sequences 9, 8, 15, 12, 13, 14, 17, 16, 2 and 3

19. Around 10am on 27 October 2022 the applicant was driving the hire car. He failed to stop for police. The applicant had never been licensed to drive (Sequence 9).

20. A police pursuit ensued (Sequence 8). A police vehicle approached the applicant from the opposite direction while he was driving the hire car on the incorrect side of the road directly towards the police vehicle. The applicant diverted into an adjacent lane in an unsuccessful attempt to avoid the police vehicle but collided with its bull bar (Sequence 15).

21. The applicant then hit three vehicles which were being driven (Sequences 12, 13 and 14). Significant panel damage was caused to all vehicles with two sustaining blown tyres. One vehicle was effectively forced out of the applicant’s way and rotated 180 degrees.

22. As a result of the collisions, the hire car was damaged including a tyre being deflated (Sequence 17).

23. The applicant continued to drive the hire car at speed with a deflated tyre.

24. The pursuit ended when the applicant crossed onto the wrong side of the road, mounted a kerb and collided with a fence outside a unit complex (Sequence 16).

25. The applicant failed to stop and exchange details with other drivers (Sequences 2 and 3).

Sequences 6 and 7

26. When the hire car came to a stop, the applicant ran into the foyer of the unit complex. Police in pursuit heard someone shout “gun, gun he has a gun”. Police established a perimeter around the unit complex.

27. The applicant knocked on a door within the unit complex. A man (“the victim”) came to the door. The applicant said to the victim, “The cops are coming. Let me in. I have a gun. I have a hundred rounds. Don’t fuck with me.” The applicant was holding a shortened 0.22 calibre firearm. The victim raised his hands in surrender and let the applicant inside the unit. The applicant sat down and pointed the gun at the victim and told him to get food and water.

28. At one stage, the applicant moved from pointing the gun at the victim to pointing the gun at the front door saying, “Anybody that walks through this door is going to get a bullet in them.” The victim saw the applicant pull out rounds of ammunition and put them on the ground.

29. During the period in which the victim was detained, he saw the applicant fire the gun when it was loaded with a live round, however it did not discharge.

30. The applicant held the victim hostage inside the unit between approximately 10:30am and 2:45pm before he released the victim, physically unharmed.

31. The applicant surrendered to police about 15 minutes later.

32. Police located 45 rounds of ammunition and a shortened .22 single shot, bolt action, long rifle inside the unit. The functionality of the firearm was not tested.

The applicant’s subjective case

33. The applicant’s subjective circumstances were before the sentencing judge through reports prepared by Ms Anita Duffy, Psychologist, dated 23 January 2024 and Ms Sarah Van De Velde, Psychologist, dated 6 October 2020. The latter report was prepared in relation to an offence of robbery whilst armed with a dangerous weapon for which the applicant was on parole at the time of the offending. A letter of apology to the applicant from the NSW government relating to sexual abuse perpetrated on him at Reiby Juvenile Justice Centre was tendered. The applicant also gave evidence and a letter of apology was tendered.

34. Some of the material tendered by the respondent in the sentence proceedings was informative of aspects of the applicant’s subjective circumstances including parole documentation and his criminal and custodial histories.

35. The applicant is an Aboriginal man born in 1997. He was 25 years of age at the time of the offending and 26 at the time of sentencing. He had a dysfunctional childhood marked by violence from his caregivers that disrupted his education and exposed him to drug use from his early teenage years and homelessness.

36. He was sexually assaulted while serving a control order imposed by the Children’s Court for which he has received compensation and a letter of apology.

37. The applicant has spent a large portion of his adult years in custody. He has a history of poor compliance with parole and court orders. When most recently released to parole prior to the index offending, the applicant ceased opioid replacement therapy and relapsed into drug use. After being released on bail in relation to the Form 1 offence, he committed the index offences.

38. The applicant stated in his evidence that when he took the hire car, he had had a bad day and wanted to see his seven-year-old daughter who lived in Campbelltown with her mother. He said he went to collect a “so-called friend” and wanted to go for a drive. He said there were no excuses for his conduct, and he was sorry to the victim, the families impacted, the police and the community stating that it was “lucky” police attended. Similar sentiments were expressed in his letter.

39. The applicant acknowledged that he used “a fair bit of drugs” in the months leading to the offending and that on his arrest and remand in custody, he continued to use drugs for around the first 6 months. He said however that since approximately May 2023 he has not used drugs and received monthly Buvidal injections. The applicant’s corrective services history supports that assertion.

40. The applicant described that for the majority of his remand period, he had been in protective custody which prevented him accessing programs. He reported that custody was more difficult because of his protection status and because he had been assaulted “a few times” in custody.

41. The applicant described future plans to leave Wollongong with Ms Bowsher and move to the Central Coast nominating Perth as being where he ultimately wished to reside, that being where his father lived. The applicant said that Ms Bowsher had been his partner for around six years and that she visited him weekly and had stood by him and was his “biggest support”. He reported that his mother, who he speaks with weekly, has lung cancer.

42. The applicant has two children to two different relationships with whom he has limited contact.

43. The applicant acknowledged that although he had previously completed the EQUIPS program whilst in custody, he resumed drug use “straight away, pretty much” on his release to parole in April 2023. He said he knows what he has to do to manage his long-standing drug problems and is “willing to do whatever I have to do” describing that, “I’m going to lose everybody if I don’t change this time”.

44. Ms Duffy reported that the applicant would have felt hopeless upon his apprehension for the Form 1 offence which led to a “fatalistic deterioration in drug use”. She considered his mental health would have been adversely affected by his exposure to violence in custody, including the fact that whilst serving his most recent sentence, he heard his friend and co-offender being murdered in an adjacent cell. Ms Duffy considered that this experience and the previous sexual abuse led to the applicant experiencing heightened anxiety and hyper-vigilance within a custodial environment which would have been operative on his mind following his commission of the Form 1 offence.

45. Ms Duffy diagnosed the applicant with post-traumatic stress disorder, stimulant use disorder and persistent depressive disorder.

46. Ms Van De Velde additionally diagnosed the applicant with anti-social personality disorder, opioid use disorder, generalised anxiety disorder and ADHD.

Remarks on Sentence

47. It will be necessary to return to discrete parts of the sentencing remarks relied upon to establish Ground 1A alternatively Ground 1B, however it is presently sufficient to note the following summary.

48. The sentencing judge individually assessed the objective seriousness of each of the sentence offences and identified features relevant to that task. Her Honour stated on several occasions that she was careful not to “double-count”, observing that there were many overlapping features between the offences.

49. To the extent her Honour did not separately address the objective seriousness of Sequences 2, 3 and 9, the applicant does not rely upon that omission as establishing any error. It is recognised that the disposition of these offences pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is such that they had no capacity to have affected the aggregate sentence.

50. In relation to Sequence 10, the sentencing judge noted it involved a breach of trust given the applicant took the keys to the hire car whilst a guest in the home where the vehicle was parked.

51. In relation to Sequence 8, the sentencing judge noted that the applicant was driving a stolen car at times on the wrong side of the road and forcing other vehicles to do so. Her Honour noted it was committed with a disregard for public safety given it occurred in the Wollongong CBD when there was a reasonable volume of traffic. Her Honour noted that the applicant’s driving abilities were limited as he had never been licenced. Her Honour noted the pursuit was of a relatively short duration.

52. In relation to Sequences 12, 13, 14, 15 and 17, the sentencing judge noted that the damage caused to the vehicles the subject of Sequences 12, 13, 14 and 17 would require the work of a panel beater to effect repairs and that the vehicle the subject of Sequence 15 was a police vehicle.

53. In relation to Sequence 6, the sentencing judge noted it involved what was in effect a police siege lasting for approximately four and a half hours. The use of a loaded firearm was found to substantially increase objective seriousness. Her Honour noted that the applicant tried to fire the firearm and found that the fact it did not appear to be in working order did little to reduce objective seriousness. Her Honour noted that the victim was selected at random and had a firearm pointed at him in circumstances where the applicant threatened to shoot him and anyone who walked through the front door. Her Honour observed that the victim was plainly and justifiably terrified, however noted he was not physically assaulted and that over the duration of the offence, the applicant’s hostility and threats gradually dissipated.

47. Recognising that motivation was not determinative of objective seriousness, the sentencing judge found that Sequence 6 was motivated by panic as a result of being in breach of parole with an expectation of a return to custody.

48. In relation to Sequence 7, the sentencing judge noted it had the same duration as Sequence 6 and involved the use of a firearm, albeit one that was not entirely functional. Her Honour noted that armed tactical response officers were required to attend the scene.

49. The sentencing judge recognised that the applicant was not being sentenced for the Form 1 offence but noted it involved a homemade loaded firearm in working order located under the seat of the motor vehicle in which the applicant was travelling. Noting the applicant’s assertion he was carrying the firearm for protection, her Honour noted that the applicant intended to fire it if he thought necessary. Her Honour determined that the Form 1 offence called for “upward pressure” to be applied to the sentence appropriate for Sequence 6.

50. The sentencing judge found that general deterrence, personal deterrence and protection of the community “loom[ed] large” in relation to Sequences 10, 8, 6 and 7.

51. The sentencing judge considered the applicant’s subjective circumstances noting that his early years were marked by parental neglect, exposure to significant trauma and drug use. She noted that the applicant’s drug addiction was not the result of personal choice but a function of his disadvantaged background.

52. The sentencing judge found that principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 operated to reduce the applicant’s moral culpability.

53. The sentencing judge noted that the applicant’s criminal history included numerous serious offences of violence, which disentitled him to leniency and which were relevant to his future risk to the community.

54. Her Honour found that the applicant being on parole for an offence of robbery whilst armed with a dangerous weapon was an aggravating circumstance pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

55. The sentencing judge found that the offences were “largely unplanned” and the result of “reckless behaviour” rather than premeditation. Her Honour was “impressed” by the applicant’s evidence and found he was genuinely remorseful.

56. The sentencing judge noted the combined diagnoses of Ms Duffy and Ms Van Der Velde and found that the applicant’s mental health conditions made his custodial experience more onerous and reduced the weight to be afforded to general deterrence. However, her Honour found that general deterrence was not completely irrelevant, and that specific deterrence and protection of the community were important considerations.

57. The sentencing judge found that the applicant’s risk of reoffending was medium and his prospects of rehabilitation guarded. That said, her Honour found a measure of optimism in the fact the applicant appeared to be in a “good place” and was determined to stay out of trouble in custody and had expressed a motivation to change his ways. Her Honour also referred to recent parole reports referencing a capacity and motivation to positively engage in behavioural intervention. Her Honour identified protective factors as being the applicant’s relationship with Ms Bowsher and their shared intention to move away from negative peer influences and the applicant’s compensation award, which would provide a means to fund an alternate lifestyle.

58. The remarks of the sentencing judge under the heading ‘Sentence’ are directly relevant to Ground 1A alternatively Ground 1B and will be set out in full.

“Sentence

Mr Leal pleaded guilty to the offences and I will allow a 25% discount to acknowledge the usefulness of early guilty pleas to the administration of justice pursuant to s 25D(a) (sic) of the Crimes (Sentencing Procedure) Act 1999.

It is accepted that given the objective seriousness of the offending, including offending on parole, that only a sentence of full-time imprisonment should be imposed.

I will impose an aggregate sentence. I must fix and appropriate term for each offence and then turn to consider questions of accumulation concurrency as well as totality. In accordance with Pearce v The Queen (1998) 194 CLR 610, the overall criminality must then be taken into account when considering whether the indicative sentence should be served concurrently or cumulatively, either in part or in total. Where a sentence for one offence could comprehend and reflect the criminality involved in another offence, there should be notional concurrency. If not, there should be at least partial accumulation to reflect separate and discrete criminal acts.

Having considered the principle of totality, accumulation is necessary to reflect different aspects of criminality. A measure of concurrency is appropriate having regard to the totality of his conduct and temporal nature of the offending.”

66. Her Honour immediately thereafter nominated the indicative sentences for Sequences 10, 8, 12, 13, 14, 15, 17, 16, 6 and 7 (as set out at [7] above) before imposing the aggregate sentence (stated at [8] above).

67. Her Honour next stated she had found special circumstances. In that regard, she identified the applicant’s risk of institutionalisation, the need to facilitate his rehabilitation by providing extended supervision to address his drug addiction within the community upon his release and the onerous nature of his custodial experience given the state of his mental health and the fact he had experienced at least one serious assault in custody.

Ground 1A alternatively Ground 1B: Her Honour erred in discounting the aggregate sentence, alternatively, her Honour’s reasons are insufficient in disclosing the application of the discount

68. By Ground 1A alternatively Ground 1B, the applicant contends that the sentencing judge erred in applying the discount for the applicant’s pleas of guilty to the aggregate sentence and not the indicative sentences in contravention of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Principles

69. The effect of s 53A(2)(b) is that discounts for pleas of guilty mandated by s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) are to be applied to each indicative sentence and not to the aggregate sentence. This is made clear in cases including JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297; Elsaj v R [2017] NSWCCA 124 at [56]; Ibbotson (a pseudonym) v R [2020] NSWCCA 92; Weiss v R [2020] NSWCCA 188 and Acton v R [2024] NSWCCA 92.

70. Applying a discount for a plea of guilty to an aggregate sentence rather than to the indicative sentence will be an error which has the capacity to influence the sentence imposed, requiring this Court to re-sentence in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (Weiss v R [2020] NSWCCA 188 at [71]).

Applicant’s submissions

71. The key passages of the sentencing judgment said to disclose the error are reproduced in [65] above.

72. The applicant submits the sentencing remarks do not particularise at what point the sentencing judge applied the 25% discount for the applicant’s pleas of guilty. Accordingly, it is submitted that one is left to speculate as to the point at which the discount was applied, or at the very least, there is a real possibility the discount was impermissibly applied to the aggregate sentence rather than to the indicative sentences.

73. The applicant contends that the following circumstances demonstrate that the sentencing judge erroneously applied the discount to the aggregate sentence and not to the indicative sentences.

74. First, it is submitted that the structure and language of the sentencing remarks are “apt” to describe the application of a global discount from the aggregate term. The sentencing judge spoke of allowing “a” 25% discount, that is a singular discount, which indicates application to the aggregate term only. It is argued that if the discount had been applied to each indicative sentence, a “far more logical structure” would be to:

“… refer to the discount, then set out the indicative terms, then refer to the principle of totality, then refer to the final aggregate term and then make what is essentially the obvious conclusion that it had to be served by way of full time imprisonment because of course, with the term and the length of the aggregate term, there could be no other application or alternative.”

75. Secondly, it is submitted that the aggregate term imposed by the sentencing judge suggests a “logical and neat discount” from a starting point of 10 years to a discounted term of 7 years and 6 months.

76. Thirdly, it is submitted that the notional starting points for the indicative sentences appear “by comparison” to be arbitrary. While the applicant concedes that although “perhaps inconclusive” with respect to Sequences 10, 8, 15, 12, 13, 14, 17 and 16, it is submitted that the notional starting point for Sequence 7 is “telling” of the error asserted because when 25% is added to its indicative sentence of 4 years and 1 month, it produces a starting point of 5 years, 5 months and 10 days (or 5.44 years). It is argued that a such a starting point would not have been determined which discloses that the discount was in fact applied to the aggregate term.

Respondent’s submissions

77. Accepting that the sentencing judge did not state in express terms that the 25% discount was applied to each indicative sentence, the respondent submits that the following circumstances establish that the discount was correctly applied to each indicative sentence.

78. First, having reached the point of her remarks headed ‘Sentence’ whereby the sentencing judge moved to sentence the applicant, her Honour’s first reference was to the fact the applicant had pleaded guilty to the “offences”, plural, and was therefore entitled to a discount to recognise the utilitarian value of his early guilty “pleas”, plural. While the sentencing Judge referred to “a” 25% discount, singular, it is submitted that is because the same discount was applicable to all offences, which can be compared to a case where different discounts are applicable because guilty pleas have been entered at different times.

79. Secondly, leaving aside the three related offences referred to in [9] above, which were not part of the aggregate sentence, it is submitted that the sentencing judge followed an orthodox approach by proceeding as follows:

1. finding that the s 5 threshold had been crossed;

2. stating an intention to impose an aggregate sentence;

3. recognising the need to fix an appropriate term for each offence;

4. recognising the need to consider totality;

5. making findings regarding accumulation and/or concurrency;

6. announcing the indicative sentence for each offence; and then

7. announcing the aggregate sentence.

80. It is submitted that had the sentencing judge applied the utilitarian discount after stating the indicative sentences, her Honour would not have referred to the discount before announcing each indicative sentence.

81. Thirdly, it is submitted that nine of the ten indicative sentences extrapolate to a starting point in years and/or months. While Sequence 7 does not, it is submitted that the practice of rounding an indicative sentence post discount downwards to a whole number of months and/or years (thereby avoiding days) is common and accepted practice (for example, R v Manok [2017] NSWCCA 232 at [100] per Wilson J; RO v R [2019] NSWCCA 183 at [105]-[110] per Beech-Jones J; Ladas v R [2022] NSWCCA 160 at [54] per Dhanji J; Usaia v R [2023] NSWCCA 57 at [41] per Button J; Owens v R [2023] NSWCCA 198 at [98] per Wright J).

82. Fourthly, it is submitted that an indicative sentence of 4 years and 1 month for Sequence 7 would be unusual if it in fact represented an undiscounted indicative sentence.

83. Fifthly, her Honour repeated on several occasions that she was conscious of the overlap in the criminality of the offences and determined that a “measure” of concurrency was appropriate having regard to the totality of the offending and the temporal connection between the offences. Accordingly, it is submitted that given the indicative sentences total 13 years and 1 month, to arrive at a pre-discounted aggregate sentence of 10 years imprisonment would require extensive accumulation which would be contrary to her Honour’s express intention of allowing “significant” concurrency for overlapping criminality particularly as between Sequences 10, 8 and 12 to 17 on the one hand and Sequences 6 and 7 on the other hand.

Consideration

84. The sentencing remarks disclose that the sentencing judge understood that the applicant was entitled to a discount of 25% in recognition of his multiple pleas of guilty to multiple offences. The expression of “a” singular discount of 25% was because the value of the utilitarian discount was the same.

85. Her Honour appreciated the overlapping criminality between particular offences and found that the applicant’s subjective case, in particular his childhood dysfunction and disadvantage, reduced his moral culpability. Such findings are inconsistent with a starting point of 10 years imprisonment.

86. While it may have been preferable for the sentencing judge to have expressly stated that the 25% discount was applied in her determination of each indicative sentence in accordance with s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the logical inference to be drawn from the remarks, when read as a whole, is that her Honour correctly applied the discount to each indicative sentence, then considered matters of accumulation and totality and then determined the aggregate sentence.

87. It follows that I would not uphold Ground 1A or Ground 1B.

Ground 2: The sentence is manifestly excessive

Principles

88. The principles applicable to an appeal arguing manifest excess were usefully summarised in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] per R A Hulme J 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.” 

Applicant’s submissions

89. There is no ground of appeal asserting error on the part of the sentencing judge in the assessment of the objective seriousness of the offences (although it is asserted that the indicative sentence for Sequence 6 is at the higher end of the discretionary range). Nor does the applicant challenge any of the findings of the sentencing judge.

90. The applicant acknowledges that the sentence imposed may well have been within range. However, the substance of Ground 2 amounts to a complaint that the sentence is unreasonable or plainly unjust having regard to the total criminality and the favourable findings made by the sentencing judge regarding the applicant’s subjective circumstances and the discount for his early pleas of guilty.

91. In particular, the applicant points to the following findings of the sentencing judge as supporting a claim of manifest excess:

1. The applicant’s subjective circumstances, including the effects of his disadvantaged background and the traumatic events that occurred when he was in juvenile and adult custody, should have been reflected “in a more meaningful way” in the aggregate head sentence.

2. Two significant events that occurred while the applicant was in juvenile detention and in adult remand which impacted his sense of personal integrity and safety and make his custodial experience considerably more onerous.

3. The reduction of the applicant’s moral culpability and the reduced need for weight to be afforded to general deterrence.

4. The applicant’s genuine remorse and insight coupled with his relatively young age and pro-social supports.

92. It is also submitted that notwithstanding limitations associated with so-called comparable cases and statistics maintained by the Judicial Commission of NSW and the Public Defenders’ office, such material (provided only in relation to Sequence 6) supports the submission that a lesser sentence should have been imposed.

Respondent’s submissions

93. The respondent submits that the applicant has failed to establish that the aggregate sentence was unreasonable or plainly unjust for the following reasons:

1. The applicant’s history of committing serious offences while subject to conditional liberty, including offences of violence and offences involving the possession of weapons.

2. The applicant’s criminal record disentitling him to leniency and calling for weight to be afforded to specific deterrence, denunciation and protection of the community.

3. A Form 1 offence which was found to place “upward pressure” on the sentence to be imposed for Sequence 6.

4. Special circumstances were found resulting in a significant reduction to the non-parole period.

5. The applicant had previously been afforded opportunities to achieve rehabilitation within the community which had been unsuccessful in preventing reoffending.

6. The Form 1 offence and the sentence offences were committed while the applicant was on parole and the sentence offences were committed while the applicant was on bail for the Form 1 offence.

94. In relation to the comparative cases and statistics, they relate to only one of the offences (Sequence 6) and when sentencing the applicant for that offence, the Form 1 offence had to be taken into account. Accordingly, it is submitted that this material provides little assistance in relation to Sequence 6, nor for the other offences.

Consideration

95. The sentencing judge was confronted with a difficult sentencing task given considerations relevant to sentencing the applicant pulled in competing directions.

96. Sequences 6 and 7 were objectively very serious offences. Sequence 6 involved the use of a loaded firearm which was pointed at the victim. The duration of the detention was not insignificant. Sequences 6 and 7 involved the applicant using a firearm he acquired after he committed the Form 1 offence. As an adult, he had three prior offences of having custody of a knife in a public place and one offence of possessing a prohibited weapon.

97. The applicant’s parole history was poor and when he committed the sentence offences, he was on bail for the Form 1 offence.

98. The weight to be afforded to the applicant’s subjective circumstances in determining the appropriate sentence was a matter for the sentencing judge’s discretion. The imposition of a significant head sentence with a significant reduction in the non-parole period was open to her Honour.

99. The applicant has failed to establish that the sentence imposed upon him is unreasonable or unjust.

100. It follows that I would not uphold Ground 2.

Orders

101. I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

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Decision last updated: 16 June 2025