R v Dabboussi

[2020] NSWCCA 111

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Dabboussi [2020] NSWCCA 111
Hearing dates:	17 April 2020
Decision date:	04 June 2020
Before:	Bell P at [1]; Davies J at [2] Button J at [3]
Decision:	(1) Crown appeal allowed. (2) The sentences imposed upon the respondent on 13 December 2019 are quashed. (3) In substitution, the respondent is sentenced for the offence of reckless wounding, taking into account the relevant Form 1, to a non-parole period of 1 year 4 months to commence on 8 January 2019 and expire on 7 May 2020, to be followed by a parole period of 11 months, to expire on 7 April 2021. (4) The respondent is further sentenced for the offence of sexual intercourse without consent, to a non-parole period of 1 year 5 months, to commence on 8 January 2020, and expire on 7 June 2021, to be followed by a parole period of 1 year 5 months to expire on 7 November 2022. (5) The date upon which the respondent is to be released to parole pursuant to these sentences is 7 June 2021.
Catchwords:	CRIMINAL LAW – Crown appeal against sentence – separate serious offences of sexual intercourse without consent and reckless wounding – head sentence of one offence subsumed in the sentence of the other offence – accumulation of non-parole periods by two months – whether the sentencing judge erred in considering the need for specific deterrence – whether the totality principle was appropriately applied – whether sentences manifestly inadequate – discretion to re-sentence upon finding of error – sentence structure altered with result that total head sentence and total non-parole period increased
Legislation Cited:	Crimes Act 1900 (NSW), ss 35(4), 61l Crimes (Administration of Sentences) Act 1999 (NSW), s 158 Criminal Appeal Act 1912 (NSW), s 5D
Cases Cited:	Cahyadi v R [2007] NSWCCA 1 R v Loveridge [2014] NSWCCA 120
Category:	Principal judgment
Parties:	Regina (Appellant) Ahmad Dabboussi (Respondent)
Representation:	Counsel: D Patch (Appellant) P Lange & AJ Karim (Respondent)   Solicitors: Solicitor for Public Prosecutions (Appellant) Aquila Lawyers (Respondent)
File Number(s):	2017/345404; 2019/7751
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 13 December 2019 Before: English DCJ File Number(s): 2017/345404; 2019/7751

Judgment

1. BELL P: I agree with Button J.

2. DAVIES J: I agree with Button J.

3. BUTTON J:

Introduction

4. On 13 December 2019, Mr Ahmad Dabboussi (the respondent) was sentenced for two substantive offences by her Honour Judge English in the District Court sitting at Campbelltown. Pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), the Crown appeals against the sentences imposed on that day.

5. The respondent had pleaded guilty to the offence of sexual intercourse without consent (“the sexual offence”), with an additional offence of sexual intercourse without consent taken into account on a Form 1. He had also pleaded guilty to the offence of reckless wounding (“the wounding”), with the offences of common assault and hinder police in the execution of their duty taken into account on a separate Form 1.

6. The maximum penalty for the offence of sexual intercourse without consent, pursuant to s 61l of the Crimes Act 1900 (NSW), is 14 years’ imprisonment. There is also a standard non-parole period of 7 years. The offence of reckless wounding, contrary to s 35(4) of the Crimes Act, carries a maximum penalty of 7 years’ imprisonment, and there is a standard non-parole period of 3 years.

7. The respondent was sentenced as follows. In relation to the sexual offence, the learned sentencing judge imposed a head sentence of 2 years and 10 months, with a non-parole period of 1 year 8 months, to commence on 8 January 2019. As for the reckless wounding offence, a head sentence of 2 years and 3 months, with a non-parole period of 1 year and 4 months was imposed. The second sentence was expressed to commence on 8 July 2019 (in other words, six months after the sentence for the sexual offence). The total head sentence is 2 years and 10 months, with a total non-parole period of 1 year 10 months. The former expires on 7 November 2021, and the latter expires on 7 November 2020.

8. There was a finding of special circumstances that led to the total non-parole period being very slightly under 65% of the total head sentence.

9. All of the above information is contained in readily comprehensible form in a diagram attached to this judgment.

10. A number of aspects of the sentence structure are immediately noteworthy. First, only six months of the total sentence – the period between 8 January 2019 and 8 July 2019 – will be served that is solely referable to the sexual offence. Secondly, the head sentence for the wounding is entirely subsumed within the head sentence for the sexual offence. Thirdly, the total non-parole period is extended by only two months – that is, the period between 7 September 2020 and 7 November 2020 – reflective of the criminality encapsulated in the wounding.

Objective Features

11. In short, the two substantive offences were entirely separate in time and space from each other. Each was a very serious episode of criminality.

12. There were statements of agreed facts for each of the offences which were recounted by the sentencing judge in the remarks on sentence (“ROS”), and upon which the following summary is based.

Sexual offence

13. The objective facts of the sexual offending are as follows. The victim was a self-employed sex worker who conducted her work at her home in a suburb in south-western Sydney. The victim and the respondent arranged for a “full service” at 9:30 am on 27 October 2017 at the home of the victim, for a fee of $350. That particular service consisted of a massage, oral sex, and penile/vaginal intercourse.

14. The victim let the respondent into her house and into her bedroom that morning. The respondent paid $350 for the “full service”. The victim began to perform oral sex on him, which was intended to continue for about 20 minutes. The respondent stood up from the bed to answer a phone call while the victim continued to perform oral sex. The respondent saw that there were a number of sex toys on top of a chest of drawers and asked whether he could use one of them on her, namely a “butt plug”.

15. The victim refused and told him that he had not paid for that service, which would cost him an additional fee. The respondent then picked up a restraint toy, a “ball gag”, and tried to put it in the victim’s mouth, asking her to put it on. The victim refused that item as well, and told the respondent that he would have to pay an extra fee for a “kink session” if he wanted that service.

16. The respondent then picked up a whip from the chest of drawers and struck the victim. She again informed him that he needed to pay for the “kink session” if he wanted to use the whip. They discussed a further session of “squirting” (not further described in the facts) which did not require the sex toys and for which he paid the additional sum. The respondent lost interest in that service after three minutes and told the victim to perform oral sex on him while he lay on the bed with her buttocks near his head.

17. The respondent then forced the butt plug in and out of the vagina of the victim three times, while holding her head down into his genital area. Those actions constituted the sexual offence contained on the Form 1 attached to the substantive sexual offence.

18. The victim took the butt plug from the respondent and put it in the kitchen. She told him that he could not use it unless he paid for that particular service, which he had not. She then recommenced performing oral sex on him. Whilst that continued, the respondent forced the butt plug into the victim’s anus, after having been repeatedly told that the use of it was not consensual (the facts are not clear as to how it was the respondent obtained possession of the item again). This constituted the substantive offence for which the respondent was sentenced.

19. While the butt plug was in the victim’s anus, the respondent inserted two fingers into her vagina, which was part of the “full service”, but not in conjunction with the butt plug. The victim told the respondent to stop, took the sex toy away from him, and hid it in the kitchen.

20. The respondent then formed “lines” of what appeared to be cocaine on a plate. He asked the victim to recommence oral sex. She complied, but whilst she was doing so he grabbed her hair and forced her face more deeply into his genital area. He stood in front of the victim and asked her to perform oral sex again, but became erratic. Whilst this was happening, his hand struck the victim on the face, leaving a red mark.

21. The victim walked away from the offender to open the back door so that her male friend could come in and help her. The respondent grabbed the victim’s arm and asked her where she was going.

22. After that, the victim returned to him and attempted to give him a massage, which he refused. As an alternative, she suggested that the respondent could massage her breasts, which he did. The respondent then rubbed his saliva on the victim’s vagina. The victim pushed his hand away, as she refused ever to allow her clients to spit on her genitals due to concerns about contracting disease. At that stage, the respondent became unresponsive. It appeared that he was suffering from a drug overdose: his eyes rolled back into his head, his lips turned blue, and he began to spasm involuntarily.

23. The victim’s friend entered into the house with the intention of helping her. The offender regained consciousness and was reluctant to leave at first, but began to get dressed when he heard the voice of the victim’s friend. While this was occurring, the victim had locked herself in the bathroom for about 20 minutes. She only emerged when she saw the offender leaving through the front door. The entirety of the incident took over one and a half to two hours.

24. At midday that same day, the victim attended the police station with her friend and reported the offences that had been committed against her.

Objective seriousness of sexual offence

25. With respect to the objective seriousness of the sexual offence, the sentencing judge characterised it as a “matter falling below the mid-range but certainly not at the very lowest end of the range” (ROS 15.15). Her Honour noted that the act was clearly done without the consent of the victim, and that, even when the victim had gone to the extent of hiding the sex toy after the first instance of offending, the respondent used it on her again.

26. The assertedly mitigatory proposition that the criminal act would not have amounted to a sexual offence if the respondent had been willing to pay for the additional services was not entertained by the sentencing judge; nor was it found to reduce his moral culpability (ROS 15.20).

27. Her Honour found the sexual offending “to have been a relatively brief episode not resulting in any injury to the victim and there were no threats accompanying the sexual assault” (ROS 15.12).

28. While the significant trauma experienced by the victim spoken of in her Victim Impact Statement was acknowledged, the sentencing judge did not find that her ongoing emotional trauma was greater than what would be expected of a victim of a sexual assault. Therefore it was not judged to amount to a factor in aggravation (ROS 14.9).

29. Her Honour also acknowledged the particular vulnerability of the victim working from home alone as a sex worker, as opposed to working in an establishment with security.

30. The standard non-parole period was departed from because of the “relative brevity of the incident, the lack of threat accompanying what was occurring and the absence of evidence of there being physical injury” (ROS 15.24).

Reckless wounding offence

31. The facts of this entirely separate offence are as follows.

32. On 6 November 2018, a little over a year after the sexual offending, father and son Mr Glen Harris and Mr Jordan Harris were driving along Canterbury Road, Lakemba in a jeep. There was also a white Toyota Camry manoeuvring in and out of traffic, the occupants being the respondent and another man, the driver. The Camry then began erratically and quickly shifting between lanes, leading to the two men in the jeep needing to brake suddenly to avoid collisions.

33. The jeep then passed the Camry, at which one of the men in the jeep made an obscene gesture while the other said, “You fucking idiot”. Shortly afterwards, the jeep came to a stop at a red light, and the Camry pulled up directly behind it.

34. The respondent got out of the Camry and walked up to the jeep. At the time, he was armed with a knife. Glen Harris, the father, saw the respondent approaching and got out of the jeep. His son, Jordan Harris, got out of the same vehicle a moment later. The respondent approached Glen Harris who shrugged and said “What? Are we going to punch on because your mate is a shit driver?” In response, the respondent pushed him, making the older man fall backwards. It was he who was the victim of the common assault contained on the second Form 1.

35. The victim of the wounding, Jordan Harris, moved towards the offender and punched him twice to the head. A fight ensued between the two of them. While this was occurring, the respondent, having unobservedly produced the knife, swung his left fist at the victim so that the blade of the knife entered the back of the victim’s thigh, causing a substantial wound.

36. The victim’s father re-joined the altercation and a fight between the three of them ensued. At this point, the driver of the Camry got out and joined in the melee.

37. The victim held onto the left wrist of the respondent and struggled to control the knife. In doing so, the victim received several minor wounds to his arms and legs. The victim called out to his father, “Dad, he fucking stabbed me.” The victim’s father came over and held the respondent’s leg while the victim punched him to the head. The victim and his father then fled to their vehicle and drove immediately to the hospital. The victim was bleeding heavily.

38. As a result of this interaction, the victim suffered the following injuries: a 15 cm laceration to deep muscle tissue on the back of his right thigh, two 1-2 cm lacerations to the inner front of his right thigh, and a small incision to the inner bicep of his left arm. The substantial wound required two surgeries to repair an artery in the right thigh.

39. The following day, the police stopped the Toyota Camry, which the respondent was driving at the time. The police informed the respondent that the vehicle was being seized for forensic examination. The respondent took hold of the dashboard-mounted camera in the Camry and damaged it beyond repair. This constituted the offence of hinder police that was taken into account by way of the second Form 1.

Objective seriousness of wounding

40. With respect to the assessment of objective seriousness of the wounding, it is convenient to set out the entirety of the relevant portion of the remarks on sentence:

“The reckless wounding offence is a serious offence involving the use of a knife.  Clearly, a premeditated offence as the offender left the vehicle armed with the knife which was then used to stab the victim as a result of a road rage incident.  An offence committed in public with others who witnessed the incident.  An offence committed whilst he was on conditional liberty.  An offence which resulted in the victim requiring to undergo surgery on two occasions to repair the wound.  An offence I find falls towards the mid‑range of objective seriousness.” (ROS 16.3)

Subjective features

41. The following summary is derived from the remarks on sentence, which were based upon the criminal record of the respondent, a printout from the Department of Corrective Services, a sentencing assessment report, a report from a clinical psychologist, a report from a forensic psychologist, and the evidence of the respondent and his brother at the sentence hearing.

42. The offender was 28 years of age at the time of sentencing. He comes from a stable and loving family environment. Despite his offending, he retained the support of his family.

43. He had a longstanding drug habit, which began at the age of 16 with him abusing cannabis and alcohol. That progressed to MDMA and cocaine, and the use of the latter escalated over the years. At the age of 22 he started using gamma hydroxybutyrate (GHB), an abused depressant, and he had also abused non-prescribed benzodiazepines. He attempted a period of abstinence during Ramadan in 2017, which was characterised by crippling withdrawals and followed by a return to his former level of drug abuse.

44. The drug abuse had played a dominant role in his inability to retain employment, and caused his adult life to be marked by paranoia and mental confusion. It also inhibited proper psychological testing, as he attended appointments drug-affected. He met the criteria for a moderate and ongoing substance use disorder.

45. At some point, the respondent married, but the marriage was short-lived and marked by drug abuse by both his ex-wife and himself. Although they attempted a rehabilitation program together, they relapsed and descended into their former drug habits. The respondent was also unable to escape the use of drugs whilst in custody.

46. The sentencing judge remarked that the respondent’s drug abuse “clearly played a significant role in his offending behaviour” (ROS, 10.9), and also resulted in him having little recollection of either instance of offending.

47. With respect to remorse and contrition, the sentencing judge found that “it is difficult to find him generally remorseful and contrite. I find he continues to have a resentment towards the victim of the sexual assaults rather than to accept the wrongfulness of what he did to his victim and the impact of his offending upon her” (ROS 13.20).

48. Comments in a similar vein were made with respect to the reckless wounding, specifically that “there is little by way of evidence of genuine remorse” (ROS 16.15).

49. Her Honour also noted that the refusal of the respondent to attend a sex offender’s program is indicative of a “complete lack of insight into his offending behaviour and need for treatment” (ROS 14.1).

50. It was found that in light of his failure to seriously address his longstanding drug addiction and this sexual offending, he was at a high risk of reoffending. His prospects for rehabilitation were also found to be “extremely guarded” (ROS 14.25).

51. The sentencing judge did acknowledge the relatively minor criminal record of the respondent prior to these episodes of offending, but noted the aggravating factor that both of these offences were committed while he was on conditional liberty.

52. It was also found that he had incurred institutional misconduct charges in custody for smoking, possessing drugs and receiving an unauthorised article from a visitor.

53. A discount of 5% was applied to the sentence for the sexual offence because of a late guilty plea, and the fact that the victim was required to give evidence and be cross-examined, which was “nothing more than an attempt to minimise the impact of his offending behaviour on her” (ROS 14.5).

54. In contrast, a full discount of 25% was applied on account of the early guilty plea to the wounding.

Grounds of Crown appeal

55. The following grounds of the Crown appeal were notified and pressed at the hearing:

Ground 1: Her Honour erred by failing to take into account the need for specific deterrence of the respondent.

Ground 2: Her Honour erred in failing to apply the principle that the total sentence imposed should properly reflect the totality of the criminality.

Ground 3: The sentences imposed were manifestly inadequate.

Asserted factual error with respect to the overall duration and nature of the sexual offence

56. Before dealing with the formal grounds, I will first determine a discrete error of fact that the Crown alleged was apparent from the remarks on sentence. I do so simply for convenience, because its resolution will inform the formal grounds.

56. It was said that the sentencing judge erred with respect to the overall duration and nature of the sexual offence. While it was not pleaded as a separate ground of appeal, it was submitted for the Crown that the asserted factual error played a role in a manifestly inadequate total sentence being imposed.

57. The precise factual assertion of the sentencing judge which was disputed is the one recounted at [27]. For convenience, I repeat it:

“It would appear to have been a relatively brief episode not resulting in any injury to the victim and there were no threats accompanying the sexual assault” (ROS 15.12).

59. The Crown submitted that this “episode”, in fact, extended over a period of one and a half to two hours, and that there were associated acts of control, intimidation and physical violence (albeit minor), separate from the violence inherent in the sexual offences.

60. It was said in written submissions that this factual error informed the assessment of both the objective seriousness of the matter and the decision of her Honour to depart from imposing the standard non-parole period, the latter of which, as I have said, involved explicit reference to the “relative brevity of the incident, the lack of threat accompanying what was occurring and the absence of evidence of there being physical injury”.

61. At the hearing before this Court, counsel for the Crown clarified that the underpinning dispute was whether her Honour’s characterisation of the sexual offending referred to the overall incident of offending or the precise incident that constituted the elements of the principal offence. It was asserted that the sentencing judge was referring to the former and as a result, her Honour failed to consider appropriately the length and nature of the offending considered globally.

62. In written submissions, counsel for the respondent resisted the proposition. He submitted that the sentencing judge not only correctly identified the precise sexual offence that constituted the offence on the indictment, but also correctly assessed the objective seriousness of that particular offence. It was said that it was appropriate for the offending conduct to be described as “relatively brief” because the acts that constituted the particular offence was precisely that, namely the insertion of the butt plug into the victim’s anus.

63. In oral submissions, counsel for the respondent reiterated that when the remarks on sentence are read in context, the words “relatively brief episode” can be seen to refer not to the entire episode, but rather to the facts making up the elements of the principal sexual offence. To support this, counsel emphasised that on the indictment there was only one offence of sexual assault, and therefore, it was appropriate for the sentencing judge to make an assessment of the objective seriousness of that particular offence.

64. Turning to my determination, there is a degree of ambiguity in the reference to the “episode”. But, on balance, I think that counsel for the respondent is correct: the sentencing judge was speaking of the attributes of the substantive offence itself, not the extended context in which it occurred. I also think that, bearing in mind that the agreed facts were clear as to the length of the ordeal of the victim as a whole, one would be slow to infer that the sentencing judge had misapprehended the facts in that way.

65. In short, my determination of the grounds is not informed by the proposition that the sentencing judge was mistaken as to the length of the entire episode, during which the respondent performed a number of acts against the will of the victim, thereby traumatising her.

Ground 1: Her Honour erred by failing to take into account the need for specific deterrence of the respondent.

66. The first ground of appeal concerned the failure of the sentencing judge to consider specific deterrence as a relevant factor on sentence. The Crown submitted that this ground could not lead to intervention if it stood alone. The submission was that, even if it were upheld, this Court could not intervene unless manifest inadequacy were also established. In that sense, in my opinion it can be thought of as a particular of the ultimate ground.

67. The Crown stressed that this was a case that required the need for specific deterrence to be considered. It pointed to the explicit submissions made by the Crown in the sentencing hearing that general and specific deterrence were factors that “loom large in relation to both offences, but in particular in relation to the sexual assault offence” (POS 11.12.19, 9.9). It was also said that this was a case where the need for specific deterrence was contested, as the respondent contended in written submissions to the sentencing judge that the limited criminal history of the respondent meant that weight need not be given to specific deterrence (defence submissions on sentence [34]).

68. In written submissions in this Court, the Crown pointed to a number of explicit findings by her Honour which made specific deterrence an important factor in this case. These were as follows. The respondent had a longstanding drug habit which played a significant role in his offending. His prospects for rehabilitation were poor especially if he were unable to deal with his drug addiction. The respondent also expressed no remorse or contrition, and lacked insight into his offending behaviour. The Crown also pointed to the aggravating factor of the respondent being on conditional liberty.

69. Drawing from another decision of this Court, namely R v Loveridge [2014] NSWCCA 120, it was said that the failure of the sentencing judge to consider the need for specific deterrence, as seen by the failure to make any mention of it, suggested that her Honour overlooked it during sentencing.

70. The Crown noted that since the sentencing remarks were not delivered ex tempore, the degree of latitude afforded to such judgments is not applicable here.

71. The Crown largely relied on its written submissions in this Court. It was emphasised that there was certainly a need for the sentencing judge to consider specific deterrence, especially when it was a live and contested issue at sentencing. The Crown also added that the Form 1 offences further raised the question of specific deterrence.

72. Turning now to my determination, seen as a whole it is uncontroversial that this matter gave rise to the need for reflection of specific deterrence. The following factors are important: the respondent’s lack of remorse and insight into his offending; his feelings of resentment towards the victim of the sexual offence; his escalating and largely unresolved drug use; his limited prospects for rehabilitation; the fact that he was on conditional liberty when he committed these serious offences; and the further Form 1 offences “attached” to the principal offences.

73. There is also force in the Crown’s argument that the failure of the sentencing judge to address the topic explicitly, bearing in mind that it was a live issue, may suggest that it was overlooked.

74. However, I consider that counsel for the respondent is correct in saying that there is a danger in elevating form over substance. Her Honour made a number of highly unfavourable findings about the respondent. I think that one can reasonably infer from those that the sentencing judge took specific deterrence into account when imposing the total sentence. The absence of explicit reference to specific deterrence, in light of those many findings, is of little moment. That is particularly so bearing in mind that it is a fundamental aspect of sentencing, and one would not lightly infer that it had been overlooked.

75. I would not uphold ground 1.

Ground 2: Her Honour erred in failing to apply the principle that the total sentence imposed should properly reflect the totality of the criminality.

76. In support of this ground, the Crown submitted that, while the principle of totality was addressed to a limited extent, the sentencing judge failed to impose a total sentence that reflected the totality of the criminality.

77. In the remarks on sentence, her Honour noted that the “offender is to be sentenced for two discrete episodes of criminal behaviour. There must necessarily be a partial accumulation of sentence” (ROS 17.12). Despite that, the Crown submitted that the sentencing judge erred by structuring the sentences in such a way that, despite these two distinct instances of very serious offending, the non-parole periods were only accumulated by a period of two months.

78. In supporting that argument, the Crown pointed to the seriousness of the reckless wounding: an offence that was premeditated (in the sense of the knife being in the possession of the respondent when he alighted from the Camry), involved the use of a weapon, and caused a 15 cm stab wound to the victim’s artery in his thigh. Separately, the Crown stressed the significant maximum penalties and non-parole periods of each of the separate offences.

79. Despite the great degree of discretion afforded to sentencing judges in structuring sentences, it was said that the total sentence – whereby one of the head sentences was entirely subsumed in the other, and the non-parole periods were only accumulated by a period of two months – failed to address appropriately the principle of totality, when one bears in mind the commission of a serious act of violence that carries a maximum penalty of imprisonment for 7 years.

80. The Crown relied upon its written submissions at the hearing, except for helpfully clarifying that its criticism of the sentence was not as to the length of the individual head sentences, both of which had starting points of three years, but with regard to the almost complete lack of accumulation. It was also clarified that the ratio between the total non-parole period and the total head sentence of a little under 65% was not the subject of criticism.

81. In resisting this ground, counsel for the respondent emphasised the well-established and well-known discretion afforded to any sentencing judge or magistrate with respect to cumulation. He submitted that her Honour did precisely that: the sentences were cumulated to provide for an additional period of mandatory incarceration for two months. They thereby acknowledged the additional harm caused by the subsequent offence. The principle of totality was appropriately addressed by the sentence imposed by her Honour, it was said.

82. In oral submissions, counsel pointed to a number of additional reasons why the accumulation of the head sentences and non-parole periods resulted in an outcome that was open to the sentencing discretion.

83. First, it was said that there was a degree of provocation involved in the wounding offence.

84. Secondly, whilst the wound was of a substantial length, it did not result in any permanent injuries.

85. Thirdly, the degree of accumulation was said to be a not insignificant portion of the total non-parole period imposed on the respondent. The simple fact is that an additional period was indeed added to the time that the respondent would spend mandatorily incarcerated.

86. Fourthly, attention was drawn to the respondent’s undoubted need for rehabilitation, a proposition that was accepted by the sentencing judge by the finding of special circumstances and departure from the statutory ratio. The addition of two months of mandatory incarceration was not unreasonable, in light of that need.

87. Fifthly, it was said that even if there had been further cumulation of the head sentences, to the extent of yielding a head sentence of up to and including three years, as suggested by defence counsel at the sentencing hearing, the practical effect would have been the same, due to automatic release to statutory parole in such circumstances.

88. Sixthly, the seriousness of each of the offences was recognised by the imposition of not insubstantial terms of imprisonment with not insubstantial non-parole periods.

89. Seventhly, the harm caused to the victims and to society generally was recognised by the imposition of the sentences of full-time custody. The failure to extend the head sentence of the sexual offence by way of the head sentence for the wounding has little practical effect in any event, because additional punishment was imposed by extending the non-parole period.

90. Eighthly, there is also a very real prospect that any offender will be released upon the expiration of his non-parole period, and that serves as the real punishment. Even if the additional accumulation in terms of head sentence extended above three years, it may not make a practical difference. It is the individual sentences and the accumulation of the non-parole periods which are important, and recognise the harm to victims and society.

91. Turning to my determination, it may be accepted that a very wide latitude is afforded to sentencing judges and magistrates in determining the degree of cumulation and concurrence that should be afforded when sentencing for more than one substantive offence. If authority is needed for that proposition, it is to be found in Cahyadi v R [2007] NSWCCA 1, a decision that has been applied repeatedly by this Court over the past 13 years.

92. Like any general proposition, however, it has its limits, and there will indeed be appeals by offenders in which the degree of cumulation at first instance is simply untenable. Obversely, there will be Crown appeals in which the degree of concurrence has the same characteristic.

93. In my opinion, this is one of those cases. I cannot accept that it was open to the discretion reposed in the sentencing judge for the head sentence for the wounding to be subsumed entirely within the head sentence for the sexual offence. And although counsel for the respondent is correct to say that there was some extension of the non-parole period for the sexual offence, in my opinion a period of two months was disproportionate to the point of inadequacy to reflect the gravity of the wounding.

94. I say that because – to recap very briefly – the wounding was an offence quite separate from the sexual offence in time, space, setting, victim, and nature. It was undoubtedly a serious offence. Arising as it did from an originally trivial interaction on a public street, it had significant antisocial features. Its consequences were grave, featuring as they did a wound of significant size, inflicted to a notoriously vulnerable part of the body, and requiring not one but two operations to an artery. Finally, it is to be recalled that the weapon was not grabbed in the heat of the moment; it was on the person of the respondent when he alighted from the vehicle.

95. In my respectful opinion, it is not clear whether the sentence structure reflected in the attached diagram was intended, or perhaps the result of a slip by a no doubt busy sentencing judge. It is possible that the latter thesis is more likely, simply because the sentencing judge made so many adverse findings about the respondent. But whether intended or accidental, I respectfully think that this structure simply cannot be permitted to stand.

96. I would uphold ground 2.

Ground 3: The sentences imposed were manifestly inadequate.

97. The inevitable concomitant of my finding with regard to ground 2 is that ground 3 must also be upheld. Neither party at the hearing before us suggested that any other analysis was open.

98. This ground should be upheld as well.

Residual discretion to re-sentence

99. The Crown submitted that the residual discretion not to intervene should not be exercised, for the following reasons.

100. First, the lack of reflection of the principle of totality, manifested by the insufficient cumulation of the sentences and in particular the non-parole periods, leading in turn to the manifest inadequacy of the overall sentence, were powerful reasons why the residual discretion should not be exercised in this appeal.

101. The Crown also pointed to the fact that it had not contributed to the manifest inadequacy of the sentence, nor was there any delay in notifying the respondent, nor filing the Crown appeal.

102. The date of the release to parole of the respondent, being 7 November 2020, was said to be a relevant matter to be considered against re-sentence, but not determinative.

103. It was also noted that exercising the discretion to re-sentence will provide guidance to sentencing judges generally, and will thereby achieve greater consistency in sentencing for separate incidents involving serious levels of sexual and physical violence. It will also demonstrate that such an extreme degree of concurrence is amenable to correction on appeal.

104. Resisting the Crown, counsel for the respondent asserted that the present case does not raise a point of principle, nor offer guidance to sentencing courts, the primary purposes of Crown appeals.

105. He further contended that the degree of cumulation in sentencing matters is case-dependent, and that it is simply not possible, in the abstract, to give guidance in order to achieve higher level of consistency in sentencing for separate incidents involving serious levels of sexual or physical violence or both.

106. Furthermore, he submitted that the sentence imposed does not constitute an affront to the administration of justice.

107. Finally, it was said that the respondent will be subject to automatic release on parole pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW) in a matter of months. To prolong that, it was said, would impede the respondent’s rehabilitative efforts, that being against the best interests of the respondent as well as the wider community.

108. Turning to my determination of this discrete question, I accept the submission that extension of the total head sentence and total non-parole period of the respondent will no doubt be very disappointing to him, and disruptive of his rehabilitation in many ways. But as I have written, I think that the sentence structure imposed here was, with respect, simply untenable. To repeat: as things currently stand, the respondent will serve as little as two months for a separate, serious, reckless wounding. Contrary to the submission of counsel for the respondent, I do respectfully consider that the current sentence structure is an affront to the administration of justice. Finally, I think that intervention would play a role in demonstrating that there comes a point where the degree of concurrence (or cumulation) adopted at first instance will sometimes be the subject of respectful correction by this Court.

109. In short, I believe that the residual discretion not to intervene should not be exercised.

Re-sentence

110. No new evidence was placed before us by either party as to events since the imposition of sentence on 17 April 2020.

111. I act upon the concession of the Crown that neither head sentence is itself inadequate, and that the ratio between the total non-parole period and the total head sentence of very slightly less than 65% should be maintained. There is also no reason to change the backdate. I should indicate that those concessions of the Crown have played a role in constraining the sentences that I would otherwise have proposed, and in my opinion both the resultant total head sentence and the total non-parole period remain quite lenient. But for the concessions which the Court, on a Crown appeal, did not question and which were embraced by the applicant, a heavier sentence than that which I propose may well have been appropriate.

112. In my opinion, the order of commencement of the sentences should be reversed.

113. For the reckless wounding, taking into account the Form 1, I would impose a non-parole period of 1 year 4 months to commence on 8 January 2019 and expire on 7 May 2020, to be followed by a parole period of 11 months, to expire on 7 April 2021. To express that more comprehensibly, that is a head sentence of 2 years 3 months, with a non-parole period of 1 year 4 months (each of those is unchanged from the original sentence).

114. For the sexual offence, taking into account the Form 1, I would impose a non-parole period of 1 year 5 months, to commence on 8 January 2020, and expire on 7 June 2021, to be followed by a parole period of 1 year 5 months to expire on 7 November 2022.

110. To express that more comprehensibly, I would impose a head sentence of 2 years 10 months, with a non-parole period of 1 year 5 months, to commence one year after the sentence for the wounding commences. The head sentence is unchanged at 2 years 10 months, and the non-parole period is actually very slightly reduced, from 1 year 8 months to 1 year 5 months. The degree of cumulation between the commencement date of the two sentences, however, is increased, from six months (the period between 8 January 2019 and 8 July 2019) to one year (the period between 8 January 2019 and 8 January 2020). A second diagram attached to this judgment sets out what I propose.

111. Those two sentences would lead to a total head sentence of imprisonment for 3 years 10 months, with a total non-parole period of 2 years 5 months. The former is an extension of the total head sentence at first instance of 1 year. The latter is an extension of the total non-parole period at first instance of 7 months. The ratio between them is 63%. Because each individual head sentence is less than three years, the respondent will be entitled to release to parole at the end of the second non-parole period; that is, on 7 June 2021: see s 158 of the Crimes (Administration of Sentences) Act.

Orders

117. I propose the following orders:

1. Crown appeal allowed.

2. The sentences imposed upon the respondent on 13 December 2019 are quashed.

3. In substitution, the respondent is sentenced for the offence of reckless wounding, taking into account the relevant Form 1, to a non-parole period of 1 year 4 months to commence on 8 January 2019 and expire on 7 May 2020, to be followed by a parole period of 11 months, to expire on 7 April 2021.

4. The respondent is further sentenced for the offence of sexual intercourse without consent, to a non-parole period of 1 year 5 months, to commence on 8 January 2020, and expire on 7 June 2021, to be followed by a parole period of 1 year 5 months to expire on 7 November 2022.

5. The date upon which the respondent is to be released to parole pursuant to these sentences is 7 June 2021.

R v Dabboussi First Instance Sentence (2724, pdf)

R v Dabboussi Re-Sentence (2725, pdf)

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Decision last updated: 04 June 2020