R v Fouani

[2018] NSWCCA 230

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Fouani [2018] NSWCCA 230
Hearing dates:	31 August 2018
Date of orders:	17 October 2018
Decision date:	17 October 2018
Before:	Hoeben CJ at CL at [1]; Walton J at [71]; Button J at [72]
Decision:	(1)   Crown appeal allowed. (2)   The aggregate sentence imposed by Whitford SC DCJ on 16 March 2018 is quashed and in lieu thereof the respondent is sentenced to imprisonment with a non-parole period of 13 years and 6 months, commencing 11 April 2013 and expiring 10 October 2026, with a balance of term of 4 years and 6 months, expiring 10 April 2031.
Catchwords:	CRIMINAL LAW – Crown appeal – cause grievous bodily harm with intent to cause grievous bodily harm and recruit child to carry out criminal activity – offender found guilty after trial – petrol poured over victim and then ignited – offender coerced minor into performing the acts giving rise to Count 1 – whether sentence manifestly inadequate – scarring over 45 per cent of victim’s body – lack of contrition or remorse by offender – considerable planning involved – objective seriousness towards upper level – Crown appeal made out – need to re-sentence offender.
Legislation Cited:	Crimes Act 1900 (NSW) – ss 33(1)(b), 351A(2) Criminal Appeal Act 1912 (NSW) – s 5D
Cases Cited:	CMB v Attorney General (NSW) [2015] HCA 9; 256 CLR 346 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) [2017] HCA 41 Everett v The Queen [1994] HCA 49; 181 CLR 295 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v CTG [2017 NSWCCA 163 R v Harris [2015] NSWCCA 81 The Queen v Kilic [2016] HCA 48; 259 CLR 256
Category:	Principal judgment
Parties:	Regina – Applicant Crown Mohammed Ali Fouani – Respondent
Representation:	Counsel: B Baker – Applicant Crown G Wendler – Respondent   Solicitors: Solicitor for Public Prosecutions – Applicant Crown Fay Rose Legal – Respondent
File Number(s):	2012/225374
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 16 March 2018 Before: Whitford SC DCJ File Number(s): 2012/225374

JUDGMENT

1. HOEBEN CJ at CL:

Offences and sentence

The respondent was charged with the following offences:

Count 1 – Cause grievous bodily harm with intent to cause grievous bodily harm, contrary to s 33(1)(b) Crimes Act 1900 (NSW) (“Crimes Act”). This offence carries a maximum penalty of imprisonment for 25 years with a non-parole period of 7 years.

Count 2 – Recruit a child to carry out criminal activity, contrary to s 351A(2) of the Crimes Act. This offence carries a maximum penalty of imprisonment for 10 years.

2. The respondent pleaded not guilty to both counts. The respondent’s trial proceeded before his Honour Judge Whitford SC and a jury in the District Court. On 21 June 2017, the respondent was found guilty of both counts.

3. On 16 March 2018, his Honour sentenced the respondent to an aggregate sentence of imprisonment for 14 years, with a non-parole period of 10 years and 6 months, to commence on 11 April 2013. The indicative sentence for Count 1 was imprisonment for 12 years with a non-parole period of 9 years and the indicative sentence for Count 2 was imprisonment for 5 years. Accordingly, the aggregate sentence involved a notional 2 years partial accumulation of the indicative sentences.

4. Pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) on 24 April 2018 the Director of Public Prosecutions filed an appeal against sentence on a single ground of appeal namely that the aggregate sentence imposed was manifestly inadequate. The respondent was served with that Notice of Appeal just over two weeks later.

Factual background

5. In March 2012 the victim was a 33 year old Korean national, who was in Australia on a student visa, undertaking an English language course. The victim commenced as a sex worker in a brothel in Chippendale. The respondent was a 41 year old plastering contractor, who was estranged from his wife.

6. The victim and the respondent first met in 2010 at the brothel where the victim worked. In early February 2012, the respondent started regularly texting the victim. On Valentines Day in 2012, the victim agreed to go on a date with the respondent. From this point in time the victim and the respondent regularly texted and called each other. The victim and the respondent also met up more regularly, both at the brothel and on days when the victim was not working. In his text messages to the victim, the respondent professed his love for her. He also expressed his dislike of her working in a brothel.

7. From 13 March 2012 the respondent repeatedly asked the victim to stop working at the brothel. He told her that he would support her and give her money.

8. On 17 March 2012, the respondent came to the brothel and asked the victim if she would be his girlfriend. He insisted that she give him an answer. The victim felt pressured and told him that she would stop working and be his girlfriend. The respondent told the victim he would support her and her family.

9. Despite telling the respondent that she would stop working at the brothel, the victim wavered. She quite liked the respondent but felt that he was “coming on too strong” and she was not sure if she could trust him. She had doubts which she expressed to her friends over the following three days. On 20 March 2012, she told the respondent that she would be going back to work. He asked why she had changed her mind. The victim said that she just needed more time. The respondent begged her to stop working, but she would not change her mind.

10. After this conversation, the respondent sent the victim a number of text messages professing his love for her and telling her not to go back to work. The victim did not reply to any of these messages.

11. MF was the 17 year old cousin of the respondent. He lived with his parents at their family home in Cartwright. Until the date of the offence MF did not know of the victim or of any relationship she had with the respondent.

12. In late 2011 the respondent was undertaking plastering work in the hallway at MF’s family home. During that time the respondent asked MF if he wanted to make some money to “do some stuff”. MF told the respondent he “didn’t want to do nothing”. At one point the respondent told MF that he “could make some money and impress girls when he do the job for him”. The respondent, throughout this period, kept trying to convince MF, however, MF kept saying no. At one point the respondent offered MF $70,000 in cash to help him.

13. On or about 20 March 2012, the respondent was at MF’s home. He said to MF “come scare someone for me”. MF refused. The respondent told MF he would harm his mother and sister if he did not do it. MF was told by the respondent to “pour petrol on [the victim’s] feet and snatch her bag to make it look like I was trying to steal her bag”. At around sunset on 22 May 2012 the respondent arrived at MF’s home driving a red Mazda sedan which belonged to the respondent’s step-brother. The respondent said “Come on, let’s go”. MF did not want to go. The respondent told him “You got to come do it, I’ve got a gun on me and if anyone asks you tell them you’re going for a drive.” MF told the respondent that he did not want anything to do with it. However, the respondent led MF to the red Mazda with his arm around MF’s shoulder like a headlock. MF was scared of the respondent and did what he was told.

14. The respondent drove MF along the M5 towards the city. When they arrived at Surry Hills the respondent drove into a service station. At the respondent’s direction MF got out of the car and purchased a one litre carton of milk. The respondent then drove the car to Chippendale where he parked in Meagher Street, west of the intersection with Chippen Lane.

15. Once parked, the respondent got a round metal tin from the backseat and directed MF to empty the milk from the milk carton and fill it up with the liquid that was inside the tin. MF complied. The liquid smelt like petrol.

16. The respondent gave MF clothing to wear, including a black jacket, some gloves and a baseball hat. The respondent directed MF to “throw petrol on her legs and light her up to scare her”. The respondent directed MF to also snatch the victim’s bag. MF was given a cigarette lighter by the respondent and was again told by the respondent to set the victim on fire.

17. MF waited in the car with the respondent. The respondent called the victim on his mobile phone. The victim said that she was in a taxi on her way to work. The respondent repeatedly told the victim not to go to work. Moments after the conversation ended, she arrived in a taxi at Meagher Street and walked down Chippen Lane. The respondent pointed the victim out to MF saying “there, that’s her”. The respondent at this point had a pistol resting on his lap, having retrieved it from the backseat of the car.

18. MF got out of the car carrying the milk carton. He followed the victim to Chippen Lane as she walked towards the entrance to the brothel. MF then reached out and with his left arm covering the victim’s face, pulled her backwards onto the roadway and poured the accelerant from the milk carton over her head and upper body. The victim realising that the liquid was not water, got to her feet panic stricken and ran towards the door of the brothel. As she did this, MF moved up behind her and used the cigarette lighter to set her alight which quickly engulfed her in flames.

19. MF ran from Chippen Lane, leaving the milk carton behind, to nearby Chippen Street where the respondent, who had been following him in the vehicle, picked him up and drove him back to his home. The only thing the respondent said to MF in the car was “good job”. The respondent returned the Mazda to his step-brother, drove home and had a shower. He then changed his clothes and drove back to Chippendale in his own car.

20. Soon after the attack, police and ambulance personnel were notified and attended. The victim was transported to hospital and a crime scene was established.

21. At about 11.50pm the respondent arrived back at the scene and parked his car in Meagher Street. He walked to Chippen Lane and ducked under the established crime scene tape which was cordoning off the area being guarded by police. The respondent was stopped by police who queried his presence. He claimed to be coming to surprise his girlfriend. The respondent commenced to provide inconsistent versions of his recent movements and whereabouts before the incident.

22. The following day (23 March 2012) the respondent picked up MF from his home in a car that he had borrowed from his estranged wife. The respondent drove MF to a payphone in Liverpool. The respondent instructed MF to call the police officers that were responsible for investigating the case. The respondent told MF what to say with instructions on a piece of paper. MF was told to tell police that he was the one who set the “girl” on fire and that he was only after her handbag. They then got back in the car and drove to another phone booth off Hoxton Park Road. The respondent gave MF more instructions on a piece of paper. MF was told to call 2GB radio station. The call was again about the “girl” being set on fire. They then drove to another payphone in Bankstown. This time the respondent instructed MF to call Crime Stoppers. MF told Crime Stoppers that he was after the victim’s bag and was hungry. Crime Stoppers told MF that he had to hand himself in.

23. On another occasion, following the attack, the respondent took MF to his (the respondent’s) home and discussed staging a break and enter with him. The respondent told MF that he was to knock on the door, punch the respondent in his face, tie him up, pour petrol over his legs and then set the petrol on fire. On another occasion, the respondent instructed MF to burn another “girl” in the city. This time the respondent left $200 on the fridge in MF’s home and told MF to keep his mouth shut. MF never did any of those things.

24. On 26 April 2012, the respondent participated in an electronically recorded interview. In this interview, the respondent again gave an account of his relationship with the victim, his financial situation and his movements on both 22 and 23 March 2012. The respondent provided an inconsistent version of his movements and actions. The respondent denied he had had any involvement in the attack on the victim and gave various explanations where he suggested the evidence was “a complete coincidence”, “a misunderstanding” and lastly, that someone was following him and “setting him up”.

25. Meanwhile, forensic examination of the Woolworths brand milk carton recovered at the scene provided DNA results that led to MF being identified. In an electronically recorded interview, conducted on 18 July 2012, MF admitted to his involvement in the attack. He was subsequently charged. MF later provided a signed statement indicating his intent to provide evidence for the prosecutor in the case against the respondent.

26. On 19 July 2012, the respondent was arrested by police and charged.

27. As a result of the attack, the victim was hospitalised with severe flame burns to her face, neck, upper chest, arms and thighs in part. Forty five per cent of the victim’s total body surface area was burned. She was treated initially at Royal Prince Alfred Hospital Emergency Department and then in the Intensive Care Unit at Concord Repatriation General Hospital. The victim had multiple operations for debridement and skin grafting and was an inpatient in hospital from 22 March 2012 until 24 May 2012. As a result of the attack, she suffered severe disfiguring facial scarring, and scars to the neck, chest, arms and thighs.

28. Upon discharge from hospital, the victim required dressings and returned to the Burns Clinic at Concord Repatriation General Hospital initially twice a week, for follow up. Once her injuries were stable, she was fitted with compression garments, being a full face mask, a complete bodysuit and gloves. The victim required further corrective facial surgery to her mouth and nose in September 2012 and March 2013.

29. The victim also suffers from post traumatic stress disorder.

30. Photographs placed before the Court showed extensive scarring and disfigurement of the victim’s face. Her torso and arms revealed skin grafts which have been very widely meshed. Her treating plastic surgeon described her condition, as of October 2013, as follows:

“In conclusion, it can be appreciated that [the victim] was extremely seriously injured as a result of the assault under discussion. She sustained deep burns to 45% of her body surface area, which have left her with extensive, unsightly and permanent scarring and even those areas which were not injured initially have been permanently scarred as they were used as split skin donor sites.

At this stage [the victim] would not benefit from further surgery but she may require some minor procedures in the future, she will need to keep her scars out of the sun permanently and she will need to regularly apply an emollient to them to keep them supple. In addition to this, [the victim] will have problems with exposure to extremes of heat and cold and, in the summer, she may need an air conditioned environment to keep her comfortable.” (AB 78)

Proceedings on sentence

31. When assessing the objective seriousness of the offending, his Honour found that it involved obvious planning, was not spontaneous and that much of the effort put into the planning and commission of the offence was intended to hide the respondent’s involvement and direct the blame onto MF. His Honour found that the offence was aggravated by the use of an accelerant.

32. His Honour found that the offence of recruiting a child to carry out the offence was “objectively serious”. His Honour was careful, however, to avoid double counting but nevertheless found that the age of the child (in this case 17) was relevant to the seriousness of the offence. His Honour also found that the offence was aggravated by the manner in which the respondent “recruited” MF which included threats of harm and the production of a pistol.

33. Taking all those matters into account, his Honour concluded that the offending was “well above the mid-range”. This applied to both offences.

34. In relation to the respondent’s subjective case, his Honour noted the assessment of a psychologist, Ms Godbee, in which she expressed the opinion that his presentation and reported history suggested that he held grandiose attitudes about himself, which limited his ability to recognise and address personal shortcomings. Sexual jealousy appeared to be a precipitating factor for the offending.

35. His Honour noted that the respondent continued to assert his innocence and to blame MF. As a result of these matters and his conduct subsequent to the offending, his Honour found that he was not entitled to any benefit for contrition or remorse. His Honour also found it “difficult to reach any favourable conclusion concerning [the respondent’s] prospects for rehabilitation”.

36. His Honour concluded that specific deterrence was an important consideration “particularly where there is a disturbing lack of apparent insight into his behaviour and the factors which underpin it”. His Honour held that factors of general deterrence, denunciation and punishment assumed particular significance.

37. His Honour found that as the architect of the offending, and having regard to the manner in which effect was given to the plan, the moral culpability of the respondent was far greater than that of MF. His Honour characterised the offending as “a calculated cruel and cowardly attack that was visited upon an innocent woman with deliberation and which left her with irremediable physical and psychological damage”. His Honour continued:

“It is yet another example of gratuitous violence being inflicted upon a woman by a man who obsessively claims some right to her affection or attention.” (Sentence judgment at [80])

38. His Honour had regard to the sentence which MF had received. MF was sentenced by his Honour Judge Haesler SC on 18 August 2014. He received a sentence of 6 years with a non-parole period of 3 years. His Honour indicated a starting point for the sentence of 11 years, which was reduced by 45 per cent for the guilty pleas and both past and future assistance. His Honour also found special circumstances.

39. When imposing this sentence on MF, Haesler DCJ found that MF’s moral culpability was reduced due to his youth, immaturity and the duress he experienced from the respondent. His Honour also noted an IQ in the lower average range making him “somewhat gullible, lacking in confidence and more susceptible to being led than a person of average intelligence”. His Honour noted the tremendous remorse and guilt which MF experienced. His Honour characterised MF at the time of the offending as “immature, scared and his will had been overcome and overborne”.

40. The respondent did not give evidence in the sentence proceedings. As indicated, a report from a psychologist, Ms Godbee, dated 23 November 2017 was tendered on his behalf. Ms Godbee set out her conclusions and recommendations as follows:

“31   Although Mr Fouani did not recall any significant disruptions due to moving between his parents and his grandparents in early childhood it is hypothesised that this instability contributed to an avoidant attachment style in which he does not rely on others to meet his emotional needs. This has predisposed Mr Fouani to difficulties making emotional connections with others and a reluctance in asking for emotional support when needed, as well as a penchant for using casual sex to meet his emotional needs in adulthood. As a child it appears that Mr Fouani perceived his mother as strict but he lacked appropriate boundaries and supervision (as he was reportedly able to leave the house most nights). His subsequent misbehaviour led him to internalise beliefs about himself as “naughty” and the “black sheep” which may have contributed to low mood throughout his life. His experiences of sexual abuse in childhood resulted in a distorted perception of appropriate relationships, as well as a fear of men that likely predisposed him to prefer spending time with women. This also facilitated his early sexualisation. Mr Fouani described an “addiction” to females starting in primary school and it appears that his distorted thinking about relationships has contributed to difficulties maintaining a monogamous relationship, although he reported a reasonably stable work history, Mr Fouani has a pattern of unhelpful behaviours such as his offending in his late teens, gambling in his 20s and infidelity throughout his relationships. It is hypothesised that these thrill seeking behaviours are part of an avoidant coping style.

32   As Mr Fouani maintained his innocence regarding his index offending, relatively few precipitating factors are known. It appears that he uses sex as an emotional coping strategy, which led him to use the services of sex workers. It is hypothesised that Mr Fouani also overvalues the responsibility of women for “fixing” his relationship problems which resulted in him developing a sense of possessiveness towards the victim. This was challenging for him given her work and Mr Fouani felt entitled to her fidelity. Mr Fouani had poor skills to manage his feelings of jealousy and lacked appropriate emotional problem-solving skills (such as talking to his support network) and it is my opinion that instead he developed a plan intended to change the victim’s behaviour. I believe that he used his nephew as a way to distance himself from the guilt associated with his behaviour.”

41. By way of comment, this expression of opinion by Ms Godbee goes considerably beyond the expertise of a psychologist and considerably beyond any qualifications held by Ms Godbee, as set out in her Brief Curriculum Vitae. However, no objection was taken to the tender of the report by the Crown in the sentence proceedings.

The Crown appeal

42. The Crown submitted that the aggregate sentence imposed upon the respondent was manifestly inadequate in that the aggregate sentence of 10 years 6 months and an additional term of 3 years and 6 months was so disproportionate to the gravity of the offence as to manifest error.

43. The Crown submitted that the offences involved the respondent planning the attack and then recruiting a minor, by threats, to pursue the victim in a public place as she walked to work. The Crown submitted that the victim had been in a relationship with the respondent and was specifically targeted by him due to his perception that she had spurned him. The Crown submitted that her occupation as a sex worker, together with her social isolation in Australia, meant that she was vulnerable. The Crown submitted that the actions giving rise to Count 1, involved considerable violence with the co-offender grabbing the victim from behind, whilst armed with a milk carton full of accelerant and a lighter, and pulling her to the ground. In a violent and wholly unprovoked act, he then poured accelerant over her head and upper body. When she tried to escape, the co-offender set the victim alight, engulfing her in flames.

44. The Crown noted that the immediate physical pain to the victim was excruciating. As a result, she suffered third degree (full thickness) burns to 45 per cent of her body, including extensive burn injuries to her face, neck, breasts, back and arms. She then spent two weeks in emergency and a further two months hospitalised. Skin grafts were taken from most of the unburnt portions of her body. One of the six surgeries she has undergone included the removal of her top lip. The victim has had to learn how to walk and use her hands again.

45. The Crown submitted that the impact on the victim has been profound and devastating and she will forever bear the scars of the respondent’s actions, and the psychological damage that accompanies them. The Crown submitted that the gravity of the consequences of the offence upon the victim’s life cannot be overstated. The Crown submitted that by his recruitment of MF to commit the crime, the respondent also damaged his co-offender.

46. The Crown submitted that the findings of his Honour were well open to him but that the aggregate sentence ultimately imposed did not reflect those findings. The findings to which the Crown referred were:

1. The objective seriousness of the offences was “well above the mid-range”;

2. While MF carried out offence of inflicting grievous bodily harm, the respondent was the “architect of the enterprise”;

3. The recruitment of MF was made more serious and morally culpable by the respondent’s use of threats against MF’s family and by the use of a pistol in the car;

4. Both offences involved obvious planning in carrying out the principal offence and in trying to avoid detection and deflect blame;

5. A precipitating factor was sexual jealousy, due to the respondent’s perception of having some entitlement over the victim’s life;

6. Count 1 was aggravated by the use of an accelerant;

7. The respondent's moral culpability was “far greater” than that of his co-offender, a juvenile whose undiscounted sentence would have been 11 years (only one year less than the indicative sentence proposed for the respondent in respect of Count 1) and who had a substantially more favourable subjective case in comparison;

8. The respondent lacked any contrition or remorse. He continues to blame MF. His lack of remorse was exemplified by the considerable efforts he went to subsequent to the offence, to try and deflect detection of his involvement and to attribute responsibility to others;

9. Specific deterrence, general deterrence, denunciation and punishment assumed particular significance.

47. The Crown submitted that as a result of those findings, when viewed against the guideposts of the maximum penalty of 25 years and a standard non-parole period of 7 years, the indicative sentence for Count 1 of imprisonment for 12 years with a non-parole period of 9 years was manifestly inadequate and is strongly suggestive of error in the aggregate sentence in that it was substantially based upon the indicative sentence for Count 1.

48. The Crown submitted that as the aggregate sentence encompassed this conduct, together with further conduct of an extremely serious nature, namely a very serious instance of recruiting a child to commit the offence to which Count 1 related (an offence which carried a maximum penalty of 10 years imprisonment), the aggregate sentence imposed, of imprisonment for 14 years, with a non-parole period of 10 years 6 months, was manifestly inadequate.

49. The Crown accepted that there were few comparative cases of this kind and therefore insufficient cases to establish a “range”. While acknowledging the limitations of comparative cases, the Crown did refer specifically to the High Court’s decision in The Queen v Kilic [2016] HCA 48; 259 CLR 256 (“Kilic”) because it had many similarities to the present appeal. The Crown noted that in Kilic the High Court allowed a Crown appeal against the decision of the Victorian Court of Appeal which reduced a 15 year sentence with an 11 year non-parole period imposed by the sentencing judge for a charge of intentionally causing serious bodily injury and other related offences to a sentence of 10 years and 10 months with a non-parole period of 6 years and 6 months with the result that the original sentence was re-imposed.

50. The Crown noted that as with the present offending, Kilic had doused the victim with petrol and set her alight. As with the present victim, Kilic’s victim suffered horrendous injuries (indeed the injuries which the present victim personally sustained and which covered her face and 45 per cent of her body were more extensive than those suffered by Kilic’s victim whose injuries covered 20 per cent of her body). In making that comparison, the Crown acknowledged that in contrast to the present case, the injuries inflicted on the victim in Kilic also resulted in the loss of her unborn child.

51. The Crown submitted that in every other respect, the objective seriousness of the present offending exceeded that of the offending in Kilic. In support of that proposition, the Crown relied on:

1. In contrast with the offending conduct in Kilic, which was largely spontaneous, the offending conduct in the present case was the subject of prolonged planning.

2. The present respondent co-opted a minor, MF, through the use of threats to him and his family.

3. The respondent was 46 years old so that youth was not a relevant consideration, whereas Kilic was aged 22.

4. In contrast to the present respondent who demonstrated no remorse in the aftermath of the offending, and indeed continued to engage in acts designed to deflect attention away from himself and towards MF, Kilic immediately arranged for emergency services to be called to assist the victim, attempted to extinguish the victim’s flames (sustaining burns to his own hands) and expressed remorse and pleaded guilty for his offending.

5. The Crown noted that the starting point of the trial judge’s sentence in Kilic was 18 years imprisonment with a non-parole period of 15 years. The discounted sentence for the principal charge in Kilic was 14 years imprisonment, as assessed against a guidepost of a maximum penalty of 20 years. The Crown submitted that in contrast, the aggregate sentence imposed on the present respondent after trial was 14 years with a non-parole period of 10 years and 6 months. In contrast to Kilic, the indicative sentence for the principal charge (again, after trial) in the present case, of imprisonment for 12 years with a non-parole period of 9 years, was well below the maximum penalty of 25 years imprisonment.

52. The Crown submitted that inadequate sentences were as much as excessive sentences “likely to undermine public confidence in the ability of the courts to play their parts in deterring the commission of crimes” (Everett v The Queen [1994] HCA 49; 181 CLR 295 at 306; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [61]). The Crown submitted that having regard to the nature of the crime, which was a violent unprovoked attack committed in public, by the use of accelerant, involving threats to a minor to commit the physical acts, and in circumstances where there was no remorse shown, the need for denunciation and general and specific deterrence was very high.

53. The position of counsel for the respondent at the hearing of the appeal may be summarised as follows.

54. He did not seek for a moment to argue against the deplorable nature of the offending of his client, and accepted that it was "powerful, shocking and disturbing". He did remind the court that the correct approach to sentencing does not feature revenge.

55. He submitted that the aggregate head sentence of 14 years is already consonant with the sentences imposed for many offences of homicide in the form of manslaughter.

56. He conceded that, but for the discretion reposed in this Court in Crown appeals, "some adjustment to the sentence is necessary". But he submitted that, if any adjustment were to be relatively minor, the discretion should be exercised against intervention and the Crown appeal dismissed.

57. He cautioned against an emotional reaction on the part of members of the Court to the photographs of the injuries to the victim.

58. He emphasised that an aggregate head sentence of imprisonment for 14 years cannot be described as “pusillanimous”.

59. Counsel for the respondent concluded by emphasising that the respondent had already been incarcerated for four years, and that, in all the circumstances, the Crown had not established that the Court should exercise its discretion to intervene.

Consideration

60. In any Crown appeal it is necessary to have regard to and follow the principles governing such appeals. A claim of manifest inadequacy requires the Crown to establish that the sentence imposed was unreasonable or plainly unjust in a sentencing environment where there is no single “correct” sentence and judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach (R v Dinsdale; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [25]; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58]; Director of Public Prosecutions (Vic) v Dalgiesh (a Pseudonym) [2017] HCA 41 at [7]).

61. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice. Inadequate sentences give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To allow the Crown as well as convicted persons to appeal against sentences assists in maintaining confidence in the administration of justice (Everett v The Queen at 306 per McHugh J).

62. The primary purpose of a Crown appeal against sentence is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons. However, it was observed in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [42] that cases might arise where the court concludes that the inadequacy of the sentence appealed from is so marked that it amounts to “an affront to the administration of justice” which risks undermining public confidence in the criminal justice system. In such cases, the Court is justified in interfering with the sentence.

63. A claim of manifest inadequacy is a conclusion and does not depend upon the establishment of specific error: Dinsdale at [6]. In R v Harris [2015] NSWCCA 81 Adamson J (with whom Basten JA and R A Hulme J agreed) observed that where there is in substance only one ground of appeal, namely manifest inadequacy, identification of specific error is not required.

64. There is very little which can be said in favour of the respondent. His subjective case was modest and substantially depended upon speculation as to a likely motive by Ms Godbee. Not only has the respondent not evinced any signs of contrition or remorse but he offered no explanation for his conduct.

65. I note that his Honour assessed the objective seriousness of the offending as “well above the mid-range”. I infer that his Honour was using the middle of the range for such offending as his starting point. While such an assessment is essentially the function of the sentencing judge and involves the exercise of a discretion, it is difficult to envisage a more serious example of this kind of offence. In my opinion, a more accurate assessment of the objective seriousness of Count 1 would be towards the upper level of seriousness. For the reasons set out by the Crown, I have concluded that the indicative sentence proposed for Count 1 is manifestly inadequate and as a result, the aggregate sentence is manifestly inadequate.

66. That, however, does not end the matter. The Court has a residual discretion to decline to interfere with the sentence, even though the sentence is erroneously lenient. The Crown carries the onus of persuading the Court that this residual discretion should not be exercised (CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346 at [33]).

67. The following matters are relevant to that issue. The imposition of a manifestly inadequate sentence was not caused or perpetuated by the Crown at first instance. There was no significant delay in the institution of the Crown appeal. There is no post-sentence evidence before the Court which would suggest that the Court should exercise its residual discretion not to intervene. Most importantly, the respondent’s sentence does not reflect the criminality of the offending so that it has the “capacity to undermine public confidence in the proper administration of [the] criminal justice [system] in the sentencing of offenders” (R v CTG [2017] NSWCCA 163 at [98]).

68. Accordingly, I have concluded that the residual discretion should not be exercised in favour of the respondent.

69. On re-sentence taking into account his Honour’s findings, the objective seriousness of the offending, the absence of remorse or contrition and the comparative weakness of the respondent’s subjective case, I would impose an aggregate sentence of imprisonment for 18 years with a non-parole period of 13 years and 6 months. The indicative sentence for Count 1 would be 16 years with a non-parole period of 12 years. The indicative sentence for Count 2 remains unchanged at imprisonment for 5 years.

70. Accordingly, the orders which I propose are:

1. Crown appeal allowed.

2. The aggregate sentence imposed by Whitford SC DCJ on 16 March 2018 is quashed and in lieu thereof the respondent is sentenced to imprisonment with a non-parole period of 13 years and 6 months, commencing 11 April 2013 and expiring 10 October 2026, with a balance of term of 4 years and 6 months, expiring 10 April 2031.

71. WALTON J: I agree with Hoeben CJ at CL.

72. BUTTON J: I agree with Hoeben CJ at CL.

73. In my respectful opinion, the aggregate sentence imposed at first instance patently fails to reflect the profound objective gravity of the crimes of the respondent.

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Decision last updated: 17 October 2018