R v Rose

Case •

[2024] NSWCCA 193

•

28 October 2024

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Rose [2024] NSWCCA 193
Hearing dates: 21 June 2024
Date of orders: 28 October 2024
Decision date: 28 October 2024
Before: Harrison CJ at CL at [1];
Campbell J at [4];
Sweeney J at [72]
Decision:

The s 5D Criminal Appeal Act 1912 (NSW) appeal is dismissed.

Catchwords:

SENTENCING – Crown appeal against inadequacy of sentence – manifest inadequacy – offence of break and enter and commit a serious indictable offence – sentencing judge’s discretion to evaluate the objective seriousness – “leniency” associated with an intensive correction order significantly moderated by the respondent’s time in custody – imposition of an ICO is nevertheless a custodial sentence

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 5, 11

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3, 7, 21A

Crimes Act 1900 (NSW), ss 105A, 112

Criminal Appeal Act 1912 (NSW), s 5D

Cases Cited:

Apulu v R [2022] NSWCCA 244

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

Cargnello v Director of Public Prosecutions (Cth) (2012) 266 FLR 464; [2012] NSWCCA 162

CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9

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

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

FL v R [2020] NSWCCA 114

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

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

Mandranis v R [2021] NSWCCA 97

Manojlovic v R; R v Manojlovic [2020] NSWCCA 315

Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284

R v Dugan [2006] NSWCCA 34; 160 A Crim R 135

R v Eaton [2023] NSWCCA 125

R v Eldelbi (2021) 105 NSWLR 133; [2021] NSWCCA 122

R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435

R v Quinlin [2021] NSWCCA 284; 293 A Crim R 253

Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; 97 ALJR 107

Zheng v R [2023] NSWCCA 64

Category:Principal judgment
Parties: Rex (Crown)
Timothy John Rose (Respondent)
Representation:

Counsel:
G Newton SC (Crown)
T Quilter with C Beshara (Respondent)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Quill Legal (Respondent)
File Number(s): 2022/372410
 Decision under appeal 
Court or tribunal:
District Court of NSW
Jurisdiction:
Criminal
Date of Decision:
09 April 2024
Before:
David DCJ
File Number(s):
2022/372410

HEADNOTE

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

On 9 April 2024, the respondent was sentenced in the District Court after pleading guilty to an offence of breaking and entering his sometime partner’s dwelling and committing a serious indictable offence therein, namely, detaining with intent to obtain a psychological advantage while armed with a knife. That offence was contrary to s 112(2) Crimes Act 1900 (NSW) and carried a maximum penalty of 20 years’ imprisonment with a standard non-parole period of five years.

The respondent was sentenced to a term of imprisonment of one year, three months and one day’s duration to be served by way of an intensive correction order (“ICO”) with an additional condition to perform 150 hours of community service work.

The Director of Public Prosecutions appealed under s 5D Criminal Appeal Act 1912 (NSW) against the sentence imposed on the ground that the sentencing judge erred in assessing the objective seriousness of the offence, which was said to result in a sentence which is manifestly inadequate.

The issues before the Court were:

Whether the sentencing judge failed to find that the offence was aggravated by reason of the actual or threatened use of violence pursuant to s 21A(2)(b) Crimes (Sentencing Procedure) Act 1999 (NSW);

Whether the sentencing judge failed to have regard to the actual and threatened use of violence (including by the use of a knife) in assessing objective seriousness; and

If so, whether this Court’s residual discretion not to intervene had been negated and the Court should proceed to re-sentence.

The Court held (per Campbell J, Harrison CJ at CL and Sweeney J agreeing), dismissing the appeal:

As to Issues (1) and (2):

At [49]: Issues (1) and (2) are essentially particulars of the substantive ground appearing in the chapeau to appeal Ground 1 that the sentencing judge erred in her assessment of the objective seriousness. In light of the Crown’s concession that it was open to the sentencing judge to evaluate the objective seriousness of the offending as falling in the mid-range, no real point would be served by considering this Ground further, having regard to the limiting purpose relating to Crown appeals. In any event, the sentencing judge’s reasons, when read fairly and as a whole, indicate her Honour was well aware of the violence involved in the offending when assessing its objective seriousness.

As to Issue (3):

At [53]: having regard to all the relevant facts, matters and circumstances, the sentence of imprisonment actually passed and the ICO by which the sentencing judge decided it should be served was not plainly unjust or wholly unreasonable. The sentencing judge was mindful of the proper approach to sentencing before any question of the availability of an ICO arose, and followed and applied the steps identified in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; 97 ALJR 107. An ICO, while it reflects a degree of leniency, is nevertheless a custodial sentence, and cannot be said that the imposition of an ICO as a means of serving the sentence of imprisonment was manifestly inadequate.

While the Court accepted that the sentence passed was characterised by a degree of leniency, it was not satisfied that the ICO, including service in the community, was so lenient to be manifestly inadequate. As Harrison CJ at CL observed at [2] the “leniency” commonly associated with the imposition of an ICO was significantly moderated in this case because the respondent had spent nine months in custody before he was released on bail subject to onerous home detention conditions..

JUDGMENT

  1. HARRISON CJ at CL: I have had the opportunity to read in draft the judgment of Campbell J. I agree with his Honour’s reasons and with his conclusion that the appeal should be dismissed.

  2. As his Honour’s judgment reveals, Mr Rose spent nine months in custody for this offence before he was released on bail subject to onerous home detention conditions. It must therefore be understood that the “leniency” commonly accepted to be inherent in the imposition of an Intensive Correction Order was in this case significantly moderated. Mr Rose had not before then served any period of detention or imprisonment and in the events that occurred found the experience to be particularly onerous. The fact that Mr Rose suffers from an Autism Spectrum Disorder would in my experience have been likely significantly to have contributed to his difficulties while in gaol. Mr Rose’s condition appears as well to have been a contributor to the offending conduct and the amplification of the strength of his otherwise strong subjective circumstances.

  3. The sentencing judge’s sentence was entirely appropriate and the Crown appeal should be dismissed.

  4. CAMPBELL J: The Director of Public Prosecutions appeals under s 5D Criminal Appeal Act 1912 (NSW) against a sentence imposed on the respondent on 9 April 2024 by her Honour Judge David in the District Court of New South Wales. On 13 October 2022, in the Penrith Local Court, the respondent pleaded guilty to the following single offence for which he was arraigned in the District Court:

“That on 9 December 2022 at Katoomba in the state of New South Wales, did break and enter the dwelling house of Rebecca Garnsey at 40 York Street, and did commit a serious indictable offence therein; namely, detained Rebecca Garnsey without consent and with intent to obtain an advantage; namely, psychological gratification in circumstances of aggravation; namely, being armed with an offensive weapon, in this case, the knife.”

  1. The offending was contrary to s 112(2) Crimes Act 1900 (NSW) and carried a maximum penalty of 20 years’ imprisonment with a standard non-parole period of 5 years. Under s 7(1) Crimes (Sentencing Procedure) Act 1999 (NSW) (“SPA”) her Honour sentenced the respondent to an intensive correction order (“ICO”) of one year, three months and one day’s duration, with an additional condition to perform 150 hours of community service work as follows (AB 33; Sentencing Judgment (“SJ”) 29):

“Mr Rose, you are sentenced on this matter to a term of imprisonment for 1 year 3 months and 1 day for the offence of aggravated break and enter and commit serious indictable offence, being detained with intent to obtain a psychological advantage whilst armed with a knife. For that offence, that sentence will commence today. It will expire on 9 July 2025.

Pursuant to s 7(1) of the Act, the sentence imposed on you will be served by way of Intensive Corrections Order…

The standard conditions of the order that will apply are:

1. You must not commit any offence.

2. You must submit to supervision by a community corrections office.

The following additional conditions will apply in this case:

I make a community service work condition requiring you to perform community service work at the direction of the Lake Macquarie Community Corrections Office for a period of 150 hours.

Further, you must undergo any treatment or rehabilitation program as directed by the Community Corrections Office.”

  1. The sentencing judge had determined that the appropriate term of imprisonment for the offending and the offender was one of two years. The period of the ICO actually imposed took account of pre-sentence custody on remand. The respondent was arrested immediately at the scene of the crime on 9 December 2022 and remained in custody bail refused for 272 days or eight months and 30 days. He was released on bail on 7 September 2023 on onerous “home detention” conditions which the sentencing judge was satisfied amounted to quasi-custody. A reduction in the term of imprisonment which otherwise would have been imposed was made for the former but not the latter: Mandranis v R [2021] NSWCCA 97 at [61] (per Simpson AJA); Zheng v R [2023] NSWCCA 64 at [298] (per Gleeson JA); R v Eldelbi (2021) 105 NSWLR 133; [2021] NSWCCA 122 at [79]-[81] (per Hidden AJ). The finding of onerous bail amounting to quasi-custody was also relevant to the length of the sentence imposed even if no quantified reduction in respect of it was made: Zheng at [298]; R v Quinlin [2021] NSWCCA 284; 293 A Crim R 253.

Grounds of Appeal

  1. The Director’s grounds of appeal are expressed in the following terms (Crown Written Submissions (“CWS”) p 8):

Ground 1: The sentencing judge erred in her assessment of the objective seriousness of the offence:

(a) by failing to find that the offence was aggravated by reason of the actual or threatened use of violence pursuant to s 21A(2)(b) of the Crimes (Sentencing Procedure) Act 1999; and

(b) by failing to have regard to the actual and threatened use of violence (including by the use of a knife) in assessing objective seriousness.

Ground 2: The sentence pronounced is manifestly inadequate.

The Facts of the Offending

  1. The facts relevant to the respondent’s offending were set out in an agreed statement of facts and incorporated into the sentencing judge’s reasons for sentence (AB 7-12; SJ 3-8). For the purpose of this appeal, I have summarised in what follows the salient features of the offending from the sentencing judge’s reasons.

  2. The respondent and victim first met at a recreational social club in 2020. After about six months, their initially platonic relationship developed into a casual sexual relationship and continued as friends who regularly slept together. From around January 2021, they began to see each other more frequently and the respondent relocated his work to the area where the victim resided. However, from sometime in 2021 their relationship progressively deteriorated and communication between them ceased when the victim sent a message to the respondent saying, “Please do not contact or approach me or my children, or my work, or my phone” (AB 8; SJ 4). This was on 30 November 2022.

  3. This termination of the relationship by the victim seems to have been the catalyst for the offending. For just over a week later, on 9 December 2022 at around 1 a.m., the respondent arrived at the victim’s residence knowing she was alone in the house. As the sentencing judge observed (AB 8; SJ 12), there was a degree of planning involved in that the respondent decided to attend the victim’s residence at this time knowing her children were away with her ex-husband in accordance with their custodial arrangements. The respondent gained entry to the backyard of the home by cutting security cables on a side gate. At about 1:12 a.m. he forced his way into the residence by smashing the glass plate backdoor with a crowbar he had brought for the purpose. The respondent was wearing a multi-tool belt holding a knife and a satchel containing a torch, serrated knife, aerosol can of Inox, multi-purpose lubricant and a roll of silver duct tape. He was wearing a “miner’s lamp” on his forehead.

  4. By the time the victim was aroused from sleep by the noise of the respondent’s forced entry, he was already leaning over her armed with a 9cm knife in his right hand, which was pointed at, and very close to, her face. The respondent was holding her down on the bed with his left hand. The respondent said words to the effect of, “Surprised to see me?... Now you are going to listen to me and let me talk”. He threw the victim’s and his own mobile phones to the ground to prevent the victim calling the police. He continued to hold the victim down on the bed for several minutes but eventually released her after the victim’s pleas that he “get off [her]”.

  5. The respondent detained the victim over the next two hours and 43 minutes. He prevented the victim from retrieving her phone or leaving the room. He made numerous threats including of self-harm, variously holding the knife to his own throat and wrist. The respondent said words to the following effect (AB 9; SJ 5):

“I can’t sleep. You’ve messed up my head. You’ve caused this; it’s your fault I was crazy. You can’t get around your house without me knowing. You’re not safe. It was your fault. You were blowing hot and cold, you were leading me on, you were making me think there was a future and a relationship when there wasn’t. It was your fault. In the course of a month, I lost my home, my girlfriend, and started two new jobs.”

  1. At 2:52 a.m., the respondent sent a message to his partner, a different person, stating, “Went a different way to your suggestion. You’re in the will. Goodbye”, and again placed the knife to his wrist. The victim sought to dissuade him by saying, “Don’t do this. There is a way out. Please let me go”, to which the respondent replied:

“You need to be here for this. It’s your fault. You’ve kept me hot and cold. I’ve not eaten or drunk for three days. This is your just desserts, and this is what you get for it”.

  1. As it transpired, the victim ultimately dissuaded the respondent from carrying out his threats and the pair discussed their options for the future.

  2. At 4:00 a.m., the respondent decided to leave. He placed money on the bedside table for the damage caused to the backdoor and apologised to the victim. He then placed the victim’s phone in her vicinity and said, “All right, I’m going to give you your phone back so you can call the police… As soon as you have it, you’re going to call triple zero”. The victim did so at about 4:05 a.m. when she could no longer hear the respondent’s footsteps.

  3. The respondent remained within the vicinity of the residence and called the police himself at 4:16 a.m., stating “[p]lease hurry up, otherwise I will go inside and kill her, and please come quickly, so I don’t hurt her. Please, please, please”. Police arrived at 4:17 a.m. The respondent was still holding the knife. He was slow to respond to police demands to “drop” it and get down on the ground. After dropping the knife, he was capsicum sprayed, forced to the ground by police and arrested.

  4. The sentencing judge accepted (AB 14; SJ 10) that the respondent had shown a degree of concern for the victim’s welfare: by offering her water (AB 9; SJ 5); asking her to put on slippers to protect her feet (AB 9; SJ 5); and placing the crowbar and knife on the floor to indicate he was not going to use them (AB 10; SJ 6). However, her Honour also accepted that throughout the ordeal the victim was fearful that the respondent was going to kill her and then himself. The victim’s fear was such that she felt she would lose control of her bodily functions. From the victim impact statement, the sentencing judge accepted the victim suffered painful and enduring emotional and psychological symptoms including panic attacks, assisted, and reduced, by a period of counselling.

The Respondent’s Subjective Case

  1. The respondent had just turned 36 years of age at the time of offending and was 37 when sentenced. He has an older maternal half-brother and is the middle of three children. The respondent had a difficult childhood where he was exposed to domestic violence, and physical and alcohol abuse. He experienced physical abuse at the hands of his father and often witnessed his mother being assaulted by his father. The respondent described his parents as “functioning alcoholics” (AB 19; SJ 15).

  2. The respondent’s parents divorced when he was eight years old, following which he frequently moved between his parents’ respective homes in Toronto, NSW and Canberra. He changed high school at least five times and his school attendance was thereby significantly interrupted. Due to these frequent changes, he struggled to settle at school, had difficulty managing his emotions and was repeatedly involved in fights. He did not complete high school or obtain tertiary qualifications. Sometime prior to his arrest, the respondent had worked in the disability sector but he was currently unemployed.

  3. At the time of offending the respondent was abusing alcohol by consuming as much as two bottles of rum per week to manage his social isolation and emotional distress arising from the break-up of his relationship with the victim and loss of employment. The sentencing judge noted that there was a causal nexus between his early exposure to his parents’ alcohol abuse and his own problematic use of alcohol, which coincided with the decline in his mental health in the lead up to the offending (AB 21; SJ 17). Further, the respondent likely laboured under an Autism Spectrum Disorder (“ASD”), which, in the context of his relationship breakdown, social isolation and unemployment, impaired his judgment around the time of the offending.

Submissions at First Instance

Submissions for the respondent

  1. In written submissions, counsel for the respondent emphasised the principles applicable when sentencing an offender suffering from a ‘mental illness, intellectual handicap or other mental problems’ (DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]). It was contended that the respondent’s moral culpability was reduced because of the contributory effect of the childhood dysfunction and his mental condition on his offending (AB 97). In particular, counsel placed reliance on the experts’ opinions that the respondent (i) had an alcohol use disorder; and (ii) likely had an ASD, which, while not ordinarily considered to be a mental impairment in isolation, nevertheless made it difficult for him to read social cues and understand the intention of others. In this regard, counsel submitted (AB 98 at [18], [20]):

“Dr Rae also opines that Mr Rose has an alcohol use disorder which was used harmfully to manage his social isolation and the emotional distress of losing his employment and the end of his relationship with the victim.

In Dr Rae’s opinion, the offence occurred in the context of severe psychosocial stress and within a relationship where the communication [with the victim] became ambiguous, unclear and the interactions unpredictable. Mr Rose was particularly vulnerable given his struggles in social interactions where communication is ambiguous or non-verbal.”

  1. In making an application for an ICO, counsel referred to this Court’s decision in Zheng v R (which summarised the principles derived from Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; 97 ALJR 107) and argued that the imposition of an ICO was appropriate for the purposes of sentencing and ensuring community safety (AB 102).

Submissions for the Crown

  1. The Crown’s position was that the offending fell above the mid-range of objective seriousness. In writing, the Crown referred to the guideline judgment of R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435 applicable when assessing objective seriousness, and contended the following principles were of particular relevance (AB 141):

“(v) The offence is accompanied by vandalism and by any other significant damage to the property.

(ix) The offence was committed at a time when, absent specific knowledge on the part of the offender (a defined circumstance of aggravation – Crimes Act s 105A(1)(f)) it was likely that the premises would be occupied, particularly at night.

(x) That actual trauma was suffered by the victim (other than as a result of corporal violence, infliction of actual bodily harm or deprivation of liberty – defined circumstances of aggravation: Crimes Act s 105A(1)(c),(d) and (e)).”

Applying Ponfield, the Crown submitted (AB 143 at [13]):

“The significant period of detention, persistent use of threatening behaviour including the use of a knife, the apparent motive of the offender to provide the victim with her “just desserts” due to the breakdown of their relationship are all features which significantly elevates the seriousness of the index offence.”

  1. In these circumstances, and having regard to the aggravating factors under the SPA (in particular ss 21A(2)(b), 21A(2)(eb) and 21A(2)(n)), the Crown contended that no penalty other than full-time imprisonment was appropriate.

The Reasons for Sentence

  1. The sentencing judge was satisfied that the s 5 SPA threshold had been crossed and accepted that no penalty other than imprisonment was appropriate (AB 26; SJ 22). However, her Honour deemed it appropriate that she deviate from the standard non-parole period and recorded her Honour’s reasons for doing so under s 54B SPA as follows (AB 27; SJ 23):

“(1) The offender comes before this Court as a first-time offender who is entitled to the benefit of the leniency that that carries.

(2) The plea of guilty at the earliest opportunity.

(3) His genuine remorse.

(4) His mental health, and other factors which reduce his moral culpability.

(5) He has been subject to onerous bail conditions, and there are other compelling subjective factors favouring the offender, including his good prospects of rehabilitation and his demonstrated engagement with intervention.”

  1. Having considered the respondent’s subjective circumstances referred to at [14]-[16] above, her Honour found (AB 24; SJ 20):

On balance, I find that the offender’s moral culpability is reduced by virtue of his mental conditions, and those Bugmy (v The Queen (2013) 249 CLR 571; [2013] HCA 37) factors that have contributed to this offending”.

  1. While the sentencing judge acknowledged the general purposes of sentencing under s 3A SPA including “deterring crime” (AB 6; SJ 2), her Honour made this finding (AB 24; SJ 20):

“I consider that Mr Rose’s mental condition is such that it makes him a less appropriate, but not entirely inappropriate, vehicle for general deterrence”.

  1. As to the 272 days of pre-sentence custody (see [6] above) during which he was stabbed with a pen by another inmate, the sentencing judge accepted that the respondent’s time in custody was distressing and that he was motivated not to return to custody (AB 25; SJ 21). Further, her Honour found that the respondent’s bail conditions were “effectively a house arrest… akin to a quasi-custody” (AB 25; SJ 21). While not prepared to give a “credit value” by way of a quantified reduction in sentence, her Honour indicated that the onerous bail conditions were taken into account when determining the appropriate sentence and the manner in which it ought to be served (AB 29; SJ 25).

  2. Finally, the sentencing judge was satisfied that the respondent had good prospects of rehabilitation as demonstrated by him attending sessions with a forensic psychologist on 13 occasions while on bail, with an additional 18 psychological consultations booked for 2024. Her Honour accepted the opinion of the treating psychologist who reported (AB 25; SJ 21):

“Mr Rose presented as candid and contrite, though he reports that he is at a loss as to why he committed the offence. He has attended sessions, has contributed to their content, and is motivated to attend intervention. In his case, the time he has already spent in custody has acted as a significant motivator to attend treatment, and the deterrent aspect of his incarceration has been successful.”

Her Honour concluded that because of the respondent’s ASD characterised by “strict adherence to rules, structure and routine” (AB 18; SJ 14), he was likely to comply with the existing regime of rehabilitation.

Objective Seriousness

  1. So far as the resolution of the appeal may turn on whether the sentencing judge erred in assessing the objecting seriousness of the offence, it is necessary to reproduce that portion of her Honour’s judgment which was a focus during argument (AB 12-14; SJ 8-10):

“OBJECTIVE CIRCUMSTANCES

All offences of this nature are serious, as is reflected in the maximum penalty and the standard non-parole period. I am required, however, to assess where the offence falls within the range of objective seriousness… That assessment is to be conducted wholly by reference to the nature of the offending… I have had regard in my determination:

1. The offending involved a degree of planning, and the offender’s tool satchel contained the items referred to above as indicating some level of preparation.

2. The offender attended the victim’s home on a day and time in which he knew the victim would be alone at home.

3. The offender travelled some distance, some 36 kilometres, from his home to the victim’s home…

4. The offence was committed in the early hours of the morning at 1 am when he knew that she would be alone…

5. The offender caused extensive damage to the victim’s rear glass door by shattering the glass with a crowbar to gain entry. However, there was no gratuitous vandalism.

6. The offending was isolated and not one of a number of incursions into the same property.

7. The victim was detained for 2 hours and 43 minutes. It was not brief, but it was not prolonged.

8. The offender voluntarily ceased the offending, including directing the victim to call the police after providing her with her phone, and also with the offender exiting the premises of his own accord and calling the police himself.

9. In addition, at the time the offender voluntarily ceased his activity and gave the victim access to her phone, he apologised to her, and he also left money for the damage that he had done.

10. During the call he made to the police, the offender told the police to come and get him because he did not want to hurt the victim.

Whilst I accept that the threats of self-harm… were a function of the offender’s psychological distress, I do also accept the submission made on behalf of the Crown that he was motivated to obtain the psychological advantage, which is clearly what he has pleaded to, and that at the time, by reason of his thinking processes, he seemed to initially, at least, consider that his actions were the victim’s just desserts due to the breakdown of the relationship.

I also take into account that the offender did, nevertheless, show some concern for the victim’s welfare during the detainment…

[…]

For all the reasons referred to above, I have concluded that this offence falls in the mid-range of objective seriousness.”

  1. In relation to the aggravating factors under s 21A(2) SPA, her Honour accepted that the offending was aggravated under s 21A(2)(eb) in that it occurred in the victim’s home (AB 15; SJ 11). However, her Honour rejected the Crown’s contention that the offending was aggravated under s 21A(2)(b) (i.e., the offence involved the actual or threatened use of violence) as doing so would amount to “double counting” in a case where that putative aggravating factor was an inherent characteristic of the offence (AB 15; SJ 11). Her Honour said:

“Firstly, s 21A(2)(b) applies; that is, the offence involved the actual or threatened use of violence… In cases where the aggravating factor may be thought to be an inherent characteristic of an offence of the kind for which the sentence is being passed, the judge needs to explain why that factor is present in a particular case before the Court. I find that in this case, the threat of violence was an inherent characteristic of the offence. The victim was detained whilst the offender was armed with a knife. This, in my view, inherent in that, is that there was a threat of violence. Accordingly, I take the view that I do not find this as an aggravating factor, and that to do so, I have determined, would be to double count what is essentially an inherent feature of the offending.

Intensive correction order

  1. Her Honour well understood that there was no issue between the respondent and the Crown that the s 5 SPA threshold had been crossed. The issue was whether no sentence other than one of full-time imprisonment be served in custody was required, as contended for by the Crown, or whether the conditions permitting her Honour to impose a sentence that may be served by way of intensive correction in the community had been satisfied. Although this is how the central issue had been refined by the proceedings on sentence, her Honour made it quite clear that she fully understood that it was not permissible for her to jump to the conclusion that a sentence to be served by way of an ICO was available: Stanley v DPP at [59]; Zheng v R at [270]-[275]. Her Honour said (AB 30; SJ 26):

“There are, of course, important steps that I must take into account before I can even turn to a consideration of whether an ICO ought to be imposed. I have to reach the conclusion that no other penalty, other than imprisonment, is appropriate, as I have indicated. So serious is this matter that, of course, it is inevitable and accepted by the offender that no alternative other than imprisonment is imposed.

I then have to determine whether the term of imprisonment enables consideration of an ICO.”

  1. Her Honour went on to determine that the appropriate sentence was a term of imprisonment of two years (AB 31; SJ 27). Only then did her Honour turn to the question of whether the discretionary power to require the sentence to be served in the community was engaged and should be exercised: s 68 SPA. Her Honour’s reasoning is best set out in full as follows (AB 31-33; SJ 27-29):

“It is clear, in this case, that [the respondent] has in place an existing regime of rehabilitation. He has actively engaged in psychological counselling and made a commitment, such as is reflected in the 18 appointments that he has arranged for 2024. It is clear that he is a man who sticks to a routine, partly as a consequence of his particular condition, of having Autism Spectrum Disorder.

He has been in a form of quasi-custody, in addition to his almost 9 months in prison. He has had a further 7 months and 2 days in a form of home detention.

[…]

Section 66(1) (SPA) requires the Court to treat community safety as the paramount consideration. Community safety principally concerns the possible harms to the community from the offender’s future risk of re-offending in a manner that may affect community safety. That risk may be different depending on how the sentence is served. The section implicitly rejects any assumption that full-time detention will most effectively promote community safety. It requires the Court to look forward to the future and to the possible impacts of the sentence of imprisonment. That includes a review of the nature and content of the conditions that might be imposed. While community safety is not the sole consideration in deciding whether to make or refuse an ICO, it would usually have a decisive effect, unless the evidence is inconclusive.

In all of the circumstances of this case, I am of the view that community safety is best served by this offender remaining in the community with supervision and ongoing intervention, and that the sentence be served by way of an Intensive Corrections Order.

Given that, there needs to be some adjustment made to the 2 year sentence by reason of the fact that an Intensive Correction Order must commence on the date it is made and it cannot be backdated.

[…]

This will mean that the balance of sentence after taking into account the time served in formal custody, but not as indicated, I am not taking into account any aspect of the onerous bail, it will be reduced to one year three months and one day.”

The Director’s submissions on appeal

  1. As to Ground 1, the Director did not take issue with the sentencing judge’s overall approach to sentencing, and Mr G Newton SC who appeared for the Director accepted that her Honour appropriately set out and considered the relevant facts and known circumstances (T1.48-2.5). Rather, the Crown’s complaint was that her Honour simply recited the relevant facts without engaging with the assessment of objective seriousness in the process. This was said to be inconsistent with the discharge of the sentencing judge’s obligation to give reasons as explained in FL v R [2020] NSWCCA 114, where Wilson J (at [60]) observed “[w]hat is important is to fully identify the ’facts, matters and circumstances’ which bear on the assessment of the gravity of the crimes”. Mr Newton submitted (T3.32-41):

“…that in terms of the crucial matters, they’re in the facts. But in my submission, that’s not enough. I mean, for example, a judge could say well look I’ve read the facts in their entirety, and I don’t reproduce them, but I take into account every single fact in the agreed facts. Or the judge could read them out verbatim. Or a judge could, in effect, read out parts of the - or most of the facts crucial facts in terms of the incident itself. But in my submission, your Honours, that’s insufficient. One has to then apply the facts to the objective seriousness of the offence.”

  1. Mr Newton accepted that the sentencing judge’s summary in terms of recitation of the facts set out all the salient features of the offending. However, he pointed out that her Honour’s assessment of objective seriousness was “devoid of any reference to any of [the salient features of the offending]” (T4.2), and by way of example referred to the “big gap” between points 7 and 8 (see [30] above) to the effect that the sentencing judge moved from the victim being detained for two hours and 43 minutes to the respondent voluntarily ceasing the offending without making any assessment of the actual circumstances of the crime.

  2. As is clear, Ground 1 impugns the sentencing judge’s evaluation of the objective seriousness of the offending. It has two parts. Ground 1(a) purports to raise a question of principle. Ground 1(b) asserts a failure on the part of the sentencing judge to take into account a relevant consideration. It is important to understand that Grounds 1(a) and 1(b) are essentially particulars of the substantive ground appearing in the chapeau to Ground 1 that the sentencing judge erred in her assessment of the objective seriousness of the offence. I make this observation now because during oral argument, the learned Crown Prosecutor in answer to questions asked by Harrison CJ at CL (T8.45-9.15) whether the Crown challenged the finding that the offence was in the mid-range, submitted that while the Crown at first instance had submitted that the objective seriousness of the offending was above mid-range, it would “certainly be at least mid-range”. Learned senior counsel maintained that the sentence passed did not adequately reflect a mid-range assessment of objective seriousness but, while emphasising the limitation of general assessments of that type by reference to Cargnello v Director of Public Prosecutions (Cth) (2012) 266 FLR 464; [2012] NSWCCA 162 at 88 and R v Eaton [2023] NSWCCA 125 at [59]-[60], he conceded that the sentencing judge’s evaluation was, in the end, not challenged (T9.10). This concession makes it unnecessary to summarise the argument in relation to Ground 1 in any detail. Suffice it to say, the point of principle in Ground 1(a) was that there was a distinction between the element of aggravation of the s 112(2) offence of being armed with an offensive weapon on the one hand, and the actual threat of violence involved its use on the other: R v Dugan [2006] NSWCCA 34; 160 A Crim R 135 at [32]; Apulu v R [2022] NSWCCA 244 at [144]-[147].

  3. While acknowledging that the reasons given by the sentencing judge for the sentence actually passed must be read fairly and as a whole, the gravamen of Ground 1(b) is that when setting out and summarising the ten factors which led her Honour to assess the offence as falling in the mid-range of objective seriousness (AB 12-14; SJ8-10), her Honour did not refer expressly to the use of the knife to threaten the victim; the presence of the crowbar within the victim’s view, which was intimidating; and the actual violence involved in pinning the victim to the bed during the initial phase of the respondent’s detention of her.

  4. Concerning the manifest inadequacy ground, the Crown relied upon three substantive considerations. The first was the reference to the legislative guideposts of the maximum penalty of 20 years and the standard non-parole period of five years both of which should be considered in the context of the s 86(1) serious indictable offence itself carrying a maximum penalty of 14 years. The offending was a very serious example of a domestic violence offence occurring in the victim’s home at a time when the respondent knew she would be alone, and to that extent involving planning, threatened and actual violence, significant damage to the victim’s property and the consideration that the break-in occurred at night.

  5. The second factor was that an ICO was inconsistent with the finding of mid-range objective seriousness, although an assertion of “tailoring” the sentence was withdrawn (T10.5). The third matter was that notwithstanding the strength of the subjective factors resulting in the reduction in moral culpability, they should not justify a sentence that is not commensurate with the gravity of the offending. In all of these circumstances, it was submitted that the sentence passed was plainly unjust, particularly by reference to the imposition of an ICO as opposed to full-time detention.

  6. Given the promptitude with which the Crown Appeal was instituted and the need to provide governance and guidance to lower courts, it was submitted the residual discretion should not be exercised favourably to the respondent and he should be re-sentenced.

Respondent’s submissions on the appeal

  1. Mr T Quilter of counsel, who appeared with Mr C Bechara, also of counsel, for the respondent joined issue with the Crown on whether the error of principle identified in Ground 1(a) had been made. He pointed out in particular that the element of the s 112(2) offence relied upon by the Crown was that the respondent “was armed with an offensive weapon, namely a knife” (AB 5 and140 at [1]). Counsel argued that it was not enough that the respondent be armed with a knife, he must be armed with an offensive weapon. In that regard, in the circumstances it was necessary for the Crown to prove in accordance with the definition of offensive weapon in s 4 Crimes Act 1900 that the knife, in the circumstances, “[was] used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm”. To this extent the actual use of the knife to threaten or intimidate the victim was inherent in or bound up as an element of the charged offence as the sentencing judge held.

  1. Concerning Ground 1(b), counsel accepted that her Honour did not expressly refer to the actual and threatened use of violence in the ten factors she articulated as supporting her evaluation of objective seriousness. Reading her Honour’s reasons fairly and as a whole however, counsel submitted that in her summary of the salient features of the agreed facts, her Honour referred to the respondent’s actual threatened use of violence. Her Honour also referred to the Victim Impact Statement where the victim had referred to the incident as an “assault”. In particular, her Honour emphasised as an aspect of the instinctive synthesis that community protection required “those who enter another’s home to terrorise them, as [this respondent] did, be punished severely” (AB 29; SJ 25). Her Honour referred to the need to vindicate the dignity of victims of violence by analogy with the statement in Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [29] – [40].

  2. In relation to Ground 2, counsel pointed to the difficulty of the sentencing task facing the sentencing judge given the many competing factors thrown up by all of the facts, matters and circumstances relevant to sentencing in the case at hand. Counsel relied upon six factors. First, her Honour concluded that no sentence other than imprisonment was appropriate. The starting point of two years and eight months before a 25 percent discount for the plea of guilty at the first available opportunity was one of some severity having regard to the applicant’s legitimate claim for leniency as a first offender, even bearing in mind the legislative guideposts of the maximum penalty and the standard non-parole period. Secondly, while punishment and denunciation were relevant, the reduction in moral culpability referable to the Bugmy considerations and the applicant’s ASD were likewise relevant. Thirdly, no complaint is made by the Crown about the sentencing judge’s failure to identify specific deterrence as an important consideration given the other favourable subjective findings made. Fourthly, her Honour’s conclusion that general deterrence was of less significance in this case, is not called into question. Fifthly, given the complexity of the respondent’s ASD and the steps he had taken towards rehabilitation already, the promotion of his continued rehabilitation was a legitimate consideration, which would also advance community protection. Sixthly, given that her Honour determined a sentence of two years imprisonment was appropriate, no error has been identified in her Honour’s exercise of the discretion to consider whether or not an ICO was the appropriate way of the sentence being served. While there is an aspect of leniency necessarily involved in the imposition of an ICO as opposed to full-time detention, it remains a form of punishment by way of imprisonment.

  3. Counsel also referred to the stringent bail conditions imposed after the initial period of remand which had not been taken into account by her Honour by way of specific reduction in the term of the sentence. Rather, this significant matter was factored as part of the synthesis.

  4. Finally, counsel submitted that if either ground were made good, it was an appropriate case to exercise the residual discretion given the applicant’s progress towards rehabilitation and good prospects otherwise.

Principles applicable to the Crown appeal

  1. The principles applicable to the disposition of Crown appeals are well known and do not require any detailed exposition to resolve the case at hand. It is sufficient for me to remind myself that the primary purpose of a Crown appeal is to lay down principles for the guidance of courts charged with a duty of sentencing offenders: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1]. As the plurality in Green explained (at [36]):

“That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the [residual] discretion.”

(See also CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [55]).

  1. An important point of distinction of Crown appeals from offender appeals is that every offender is entitled to be sentenced according to law and therefore every demonstrated House v The King error enlivens a duty to exercise the discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. To emphasise the obvious, no such duty arises in respect of every demonstrated error in a Crown appeal.

  2. Given the “limiting purpose”, the Crown carries the burden of persuasion at two levels before any question of re-sentencing will arise. The first level is the identification of error in the sentencing judge’s discretion in accordance with the principles established in House v The King. At the second level, the Crown must exclude any reason for the Court to exercise the residual discretion not to interfere with the sentence passed at first instance before a duty to re-exercise the sentencing discretion arises: CMB at [54].

Disposition Ground 1

  1. Given the concession properly made by the learned Crown prosecutor that an evaluation of the objective seriousness of the offending as falling in the mid-range was open, had this ground been made good on either basis upon which it was advanced, the case for the exercise of the residual discretion not to interfere in respect of the putative error would have been irresistible and no real point would be served by considering the ground further having regard to the limiting purpose relating to Crown appeals.

  2. Having said that, were it otherwise, I would have been persuaded by the argument of Mr Quilter and Mr Bechara that Ground 1(a) had not been made good. That is to say, I am persuaded that the use of the knife in a threatening and intimidating manner, including in circumstances where the victim was being held down on the bed while the knife was pointed at, and close to, her was, as the sentencing judge held, inherent in the aggravating element of the s 112(2) Crimes Act offence, which was the only offence with which the respondent was charged.

  3. Likewise, so far as Ground 1(b) is concerned, I would have been of the view that, like Parente, reading the learned sentencing judge’s reasons fairly and as a whole, her Honour was well aware of, and had regard to, the violence inherent in the offending when assessing its objective seriousness by reference to the nature of the respondent’s offending conduct, determined objectively, as set out fully in her Honour’s analysis of the facts.

  4. I am not satisfied that Ground 1 in either of its aspects has been established.

Disposition – Ground 2 – Manifest inadequacy

  1. I am not satisfied that the sentence of imprisonment actually passed on the respondent and the ICO by which her Honour decided it should be served either separately or together are, having regard to all of the facts, matters and circumstances relevant to sentencing this offender for this offence, plainly unjust or wholly unreasonable.

  2. In reaching this conclusion, I have borne in mind the proper approach to questions of manifest inadequacy explained by the High Court of Australia in Bugmy v The Queen. French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ said (at [24]):

“The Director submits that it is implicit in the reasons of the Court of Criminal Appeal that the court concluded that the sentence for the offence against Mr Gould was manifestly inadequate. The difficulty with acceptance of the submission is that the court expressly refrained from making that assessment. Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence. Plainly enough the Court of Criminal Appeal disagreed with the sentence imposed by Judge Lerve and favoured a more severe sentence. The difference between the Court of Criminal Appeal’s assessment of the appropriate sentence and Judge Lerve’s assessment may be explained by saying that Judge Lerve gave too little weight to some factors and too much weight to other factors. However, within a range of sentences for this offence and this offender, the weight to be given to the evidence and the various, conflicting, purposes of sentencing was a matter for Judge Lerve. The authority of the Court of Criminal Appeal to substitute a sentence for that imposed by Judge Lerve was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant’s subjective case. The power could only be engaged if the court was satisfied that Judge Lerve’s discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards. In that event, the court was required to consider whether the Director’s appeal should nonetheless be dismissed in the exercise of the residual discretion. The Court of Criminal Appeal did not decide that the sentence for the s 33(1)(b) offence was manifestly inadequate. The Court of Criminal Appeal did not consider the exercise of the residual discretion. It follows that the appeal must be allowed. (Footnotes omitted).

(See also Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at [225]-[246] (per N Adams J)).

  1. I also bear in mind the statement of Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] as follows:

“Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.”

  1. I have pointed out (at [32] above) that the learned sentencing judge was very mindful of the proper approach to sentencing required of her Honour before any question of the availability of an ICO arose. In particular, and in substance, her Honour applied and followed the steps mandated in Stanley v DPP at [58]-[66]. I set out [59]-[60] and [65]-[66] below:

“[59] There are three steps to be undertaken by a sentencing court prior to the final order by which a sentence of imprisonment is imposed under the Sentencing Procedure Act, or confirmed or varied on a sentencing appeal: first, a determination that the threshold in s 5(1), described below, is met; second, determination of the appropriate term of the sentence of imprisonment; and third, where the issue arises, consideration of whether or not to make an ICO . The identification of these steps does not conflict with the principle, stated in Markarian v R , that sentencing does not involve a mathematical approach of increments to and decrements from a predetermined range of sentences. The sentencing court must engage in a process of instinctive synthesis of multiple factors at each stage of the sentencing process.

[60] The first step requires the court to be satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. The possible alternative penalties include a community correction order, a conditional release order , conviction with no other penalty and a fine. An ICO is not an alternative penalty.

….

[65] The power to make, or refuse to make, an ICO is discretionary. However, as the parties accepted, that conferral of power comes with a corresponding duty. The court will come under a duty to consider whether to make an ICO where that matter is properly raised in the circumstances of the case, and where the disentitling provisions identified below are not engaged . This is consistent with the general principle that, where a jurisdiction is conferred and “created for the public benefit or for the purpose of conferring rights or benefits upon persons the court upon an application properly made is under a duty to exercise its jurisdiction and is not at liberty to refuse to deal with the matter” .

[66] Once the power to make an ICO is enlivened, the sentencing court must address the requirements in the Sentencing Procedure Act relevant to the imposition of such an order.

In my judgment her Honour followed these steps conscientiously and the suggestion of “tailoring” was properly withdrawn.

  1. Given the objective seriousness of the offending, her Honour was obviously correct to decide (as was conceded on behalf of the respondent below) that the s 5(1) SPA threshold had been crossed; and that having considered all possibe alternatives, no penalty other than imprisonment was appropriate. There can be, and is no, complaint by the Crown on this score.

  2. The sentencing judge properly eschewed any consideration of an ICO until she had determined the appropriate term of the sentence of imprisonment for this offence and the offender. As is agreed by the Crown and counsel for the respondent, her Honour’s starting point was two years and eight months. Bearing in mind that the instinctive synthesis is not a process that is capable of producing one single correct result, and, inherently, minds may reasonably differ, I am not of the view that her Honour’s determination of a sentence of two years and eight months, subject to the reduction for the early plea of guilty, was plainly unreasonable.

  3. Once one accepts that her Honour’s assessment of objective seriousness was open, as by its concession the Crown now does, it is difficult to conclude that the principles of proportionality and consistency in sentencing necessarily demanded a starting point of a longer term of imprisonment even if such determination would have been available without the production of a sentence that would have been manifestly excessive for the offence and the offender. It is, of course, of the nature of the sentencing task that first instance judges are entrusted with a wide discretion and are to be allowed an appropriate degree of flexibility in decision making.

  4. If one accepts that a term of full-time imprisonment of two years and eight months is not a plainly inadequate starting point, it follows that the reductions which were made to produce her Honour’s final term of imprisonment were called for as a matter of principle. The respondent was entitled, and it was not argued otherwise by the Crown below, to the statutory reduction of 25 percent for his early appropriate plea of guilty, which reduced the term of imprisonment to be imposed to one of two years. This brought into consideration the question of whether an ICO should be imposed as the appropriate means of serving the sentence as a matter calling the exercise of the sentencing judge’s discretion.

  5. There is no suggestion that her Honour did not properly consider the question of whether an ICO should be imposed, having regard to the mandatory considerations stipulated by the provisions of s 66 SPA which is in the following terms:

Community safety and other considerations

(1)  Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender.

(2)  When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending.

(3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.

  1. The application of s 66 was explained by the High Court in Stanley v DPP in the following terms at [72]-[77]:

“[72] There was no dispute before this Court that s 66 imposes specific mandatory considerations upon the decision maker to make, or refuse to make, an ICO. Section 66(1) requires the court to treat community safety as the “paramount consideration”. In the context of s 66(2), community safety principally concerns the possible harms to the community that might occur in the future from the risk of reoffending by the offender. The issue is not merely the offender’s risk of reoffending, but the narrower risk of reoffending in a manner that may adversely affect community safety.

[73] The identification of community safety in s 66(1) as the “paramount” consideration also indicates that s 66 is concerned with an aspect of the sentencing task that requires the sentencing court to have a particular and different focus at the third stage of the three-step process described earlier. When the court is deciding the discrete question whether or not to make an ICO, community safety is the consideration to which other considerations are to be subordinated, although other considerations must or may be taken into account as prescribed by s 66(3).

[74] Section 66(2) explains how the sentencing court must engage with the paramount consideration of community safety. For the purpose of addressing community safety, s 66(2) requires the sentencing court to undertake a task of assessing the possible impacts of an ICO or full-time detention on the offender’s risk of reoffending. Section 66(2) gives effect to Parliament’s recognition that, in some cases, community safety will be better promoted by a term of imprisonment served in the community than by full-time detention. Section 66(2) is premised upon the view that an offender’s risk of reoffending may be different depending upon how their sentence of imprisonment is served, and implicitly rejects any assumption that full-time detention of the offender will most effectively promote community safety. Thus, s 66(2) requires the sentencing court to look forward to the future possible impacts of the sentence of imprisonment, depending upon whether the sentence is served by way of full-time detention or by way of intensive correction in the community.

[75] The assessment required by s 66(2) is not determinative of whether an ICO may or should be made. To the contrary, as is plain from s 66(3), the assessment is required for the purpose of addressing community safety as the paramount, but not the sole, consideration in deciding whether or not to make an ICO. Thus, the power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration, with the benefit of the assessment mandated by s 66(2). In that respect, the nature and content of the conditions that might be imposed by an ICO will be important in measuring the risk of reoffending.

[76] That said, community safety will usually have a decisive effect on the decision to make, or refuse to make, an ICO, unless the relevant evidence is inconclusive. There may be cases where a court cannot be satisfied whether serving a sentence by way of intensive correction in the community or serving a sentence in full-time custody would be more likely to address reoffending. In those cases, other factors will assume significance and will be determinative. On the other hand, there will be cases where a court concludes that serving the sentence by way of intensive correction in the community is more likely to address reoffending.

[77] While aspects of community safety underpin some of the general purposes of sentencing, such as specific and general deterrence and protection of the community from the offender, those aspects will have been considered in deciding whether to impose a sentence of imprisonment (ie, before considering an ICO). Community safety is required to be considered again and in a different manner under s 66 when considering whether to make an ICO. At this third step, community safety in s 66(1) is given its principal content by s 66(2), namely, the safety of the community from harms that might result if the offender reoffends, whether while serving the term of imprisonment that has been imposed or after serving that term of imprisonment.

  1. The passage from her Honour’s judgment that I have set out above (at [33]) demonstrates that her Honour properly directly herself to the requirements of the section, and to my mind gave cogent reasons for deciding, in the exercise of her discretion, that an ICO was the appropriate means of serving the sentence to be imposed. As was said in Stanley v DPP at [59], the process of instinctive synthesis must be engaged in at each stage of the sentencing process.

  2. Once her Honour had determined that it was appropriate for the sentence to be served by way of an ICO, given that it was necessary that the ICO commence on the day that the sentence was passed in accordance with s 71 SPA, by force of the reasoning in Mandranis at [61], Zheng at [298] and Eldelbi at [79] -[81], it was appropriate to reduce the term which her Honour otherwise would have imposed to make due allowance for time served previously on remand: see ss 24 and 47(3) SPA.

  3. It is generally recognised, of course, that an ICO reflects a degree of leniency because it does not involve immediate incarceration: R v Pullen [2018] NSWCCA 264 at [53]. But it is a custodial sentence and as the High Court recognised in Stanley v DPP at [63]-[64]:

“[63] The discrete character of an ICO is reinforced by the consequences of failure to comply with an ICO. Where an offender fails to comply with obligations under an ICO, the consequences are prescribed by the Crimes (Administration of Sentences) Act 1999 (NSW) (“the CAS Act“). If a community corrections officer is satisfied that an offender has failed to comply with the offender’s obligations under an ICO, the community corrections officer may take any of several actions ranging in seriousness from recording the breach and taking no further action (s 163(2)(a) of the CAS Act) to referring the breach to the State Parole Authority because of the serious nature of the breach (s 163(3) of the CAS Act). A failure to satisfy an obligation under an ICO may also come to be considered by the Parole Authority on that authority’s own initiative, by exercise of its power of inquiry under s 162(1) of the CAS Act.

[64]  If the Parole Authority is satisfied that an offender has failed to comply with their obligations under an ICO, s 164 will apply and will authorise the Parole Authority in taking any of a suite of actions including (at the most serious end of the range) the action of revoking the ICO (s 164(2)). If the Parole Authority does revoke the ICO, the Parole Authority is empowered by s 181(1) to issue a warrant committing the offender to a correctional centre to serve the remainder of their sentence by way of full-time detention. The Parole Authority may on its own initiative or on an application order the reinstatement of a previously revoked ICO (s 165(1)).”

There can be no question that an ICO represents the imposition of significant punishment over and above, for example, a Community Correction Order or a Conditional Release Order, even if it evinces a degree of leniency when compared to service of a term of imprisonment by full-time detention.

  1. It cannot be said that the imposition of an ICO as a means of serving a sentence of imprisonment is manifestly inadequate for a domestic violence offence when one considers the specific provisions of SPA. First, and in general terms s 67 proscribes a series of offences in respect of which an ICO must not be made in respect of a sentence of imprisonment. I will not set them out, but a s 112(2) Crimes Act offence is not one of them, nor do domestic violence offences, per se, fall within the proscribed categories. There can be no doubt that the respondent’s offending is a domestic violence offence as defined by s 3 SPA by reference to the Crimes (Domestic and Personal Violence) Act 2007 (NSW). By s 11 of the latter legislation, a domestic violence offence means a personal offence committed by a person against another person with whom the person who commits the offence has (or has had) a domestic relationship. The s 112(2) offence is a personal violence offence as defined in s 4 of the latter legislation. By s 4(b)(1), a s 112 offence is a personal violence offence if the relevant serious indictable offence is a s 86 offence as in the case at hand. There can be no question that the respondent and the victim were in a domestic relationship by dint of s 5 because the respondent has had an intimate personal relationship with the victim: s 5(1)(c) Crimes (Domestic and Personal Violence) Act.

  2. While the learned sentencing judge was not referred to these provisions, it is important to bear in mind that s 4A SPA requires a court to impose upon a person found guilty of a domestic violence offence either a sentence of full-time imprisonment or a supervised order. For the purpose of s 4A, a supervised order includes an ICO which is subject to supervision conditions as in the case at hand.

  3. Section 4B SPA imposes restrictions upon the power of a court to make an ICO in respect of a sentence of imprisonment for a domestic violence offence “unless the sentencing court is satisfied that the victim of the domestic violence offence, and any person with whom the offender was likely to reside, will be adequately protected (whether by conditions of the Intensive Correction Order or for some other reason)”.

  4. As I have said, these provisions were not drawn to the sentencing judge’s attention and do not form any basis of the Crown appeal in the present case. However, the combination of ss 4A, 4B and 71 SPA indicate as a matter of legislative intention that there is no legal bar to a person convicted of a domestic violence offence being sentenced to a term of imprisonment from being ordered to serve that term of imprisonment by way of an ICO. Naturally, whether an ICO is appropriate is a discretionary question of fact to be decided in all circumstance proved in a given case. To my mind the availability of an ICO for domestic violence offending is relevant to the question of whether its imposition is a marker of manifest inadequacy in given circumstances.

  5. While the sentence passed upon the respondent was lenient, notwithstanding the objective seriousness of the offending there were grounds for leniency. I am not satisfied that the sentence passed, including service in the community under an ICO is so lenient as to be manifestly inadequate.

Orders

  1. The order I propose is that the s 5D appeal is dismissed.

  2. SWEENEY J: I agree with the order proposed by Campbell J and his Honour’s reasons for that order.

  3. I also agree with the judgment of Harrison CJ at CL.

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Amendments

29 October 2024 - Deleted the last sentence of the Catchwords.

Decision last updated: 29 October 2024

Most Recent Citation
Cases Citing This Decision

1

R v Weldon [2025] NSWCCA 21
Cases Cited

27

Statutory Material Cited

4

Apulu v R [2022] NSWCCA 244
Bugmy v The Queen [2013] HCA 37
Bugmy v The Queen [2013] HCA 37