R v Sharrouf - [2023] NSWCCA 137

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Sharrouf [2023] NSWCCA 137
Hearing dates: 22 February 2023
Date of orders: 16 June 2023
Decision date: 16 June 2023
Before: Price J at [1]
Wilson J at [267]
Dhanji J at [272]
Decision:
(1) Director’s appeal allowed.
(2) The aggregate sentence imposed by Whitford SC DCJ in the District Court of New South Wales on 5 August 2022 is quashed.
(3) In lieu thereof, the respondent is sentenced to an aggregate term of 14 years’ imprisonment consisting of a non-parole period of 9 years commencing on 31 January 2020 and expiring on 30 January 2029 with a balance term of 5 years commencing on 31 January 2029 and expiring on 30 January 2034.
(4) The earliest date that the respondent will be eligible for parole is 31 January 2029.

Catchwords:
CRIMINAL LAW – Crown appeal – domestic violence and sexual assault offences – single victim married to respondent – whether sentencing judge erred in assessment of objective seriousness – whether spontaneity and short duration of offending mitigating factors – whether relative youth a mitigating factor – whether sentencing judge erred in imposing convictions with no further penalty – s 10A of the Crimes (Sentencing Procedure) Act 1999 considered – whether aggregate sentence manifestly inadequate – whether indicative sentences manifestly inadequate – notional accumulation and concurrence – totality – diagnosis of schizophrenia – whether respondent’s mental health moderated moral culpability, general deterrence and denunciation – residual discretion – whether Court should intervene – re-sentence

Legislation Cited:
Crimes Act 1900 (NSW) ss 33B, 37, 59, 61, 61I, 61J, 61L
Crimes and Courts Legislation Amendment Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 4A,10A
Criminal Appeal Act 1912 (NSW) s 5D

Cases Cited:
Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33
Baines v R [2016] NSWCCA 132
BP v R [2010] NSWCCA 159
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cherry v R [2017] NSWCCA 150
CMB v Attorney General of NSW (2015) 256 CLR 346; [2015] HCA 9; 89 AJLR 407; 243 A Crim R 282
Cowling v R [2015] NSWCCA 213
DS v R; DM v R 109 (2022) NSWLR 82; [2022] NSWCCA 156
DH v R [2022] NSWCCA 200
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; 86 ALJR 36; 214 A Crim R 152
House v The King (1936) 55 CLR 499
IE v R (2008) 183 A Crim R 150
JG v R [2023] NSWCCA 33
JT v R [2011] NSWCCA 128
Kennedy v R [2022] NSWCCA 215
Kerr v R [2016] NSWCCA 218
Kochai v R [2023] NSWCCA 116
Lee v R [2023] NSWCCA 70
Magro v R [2020] NSWCCA 25
Mill v The Queen (1988) 166 CLR 59
MJ v R [2010] NSWCCA 52
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
Nguyen v R [2007] NSWCCA 14
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
Postiglione v The Queen (1997) 189 CLR 295; 98 A Crim R 134; [1997] HCA 26
R v Barker [2016] NSWCCA 193
R v BWS [2007] NSWCCA 59
R v Daley [2010] NSWCCA 233
R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551
R v Field [2011] NSWCCA 13
R v Hamid [2006] NSWCCA 302
R v Hill [2020] NSWCCA 197
R v Kilic (2016) 91 ALJR 131; [2016] HCA 48
R v McNaughten [1843] 8 E. R. 718
R v Smith [2006] NSWCCA 353
R v Tuala [2015] NSWCCA 8
Sivell v R [2009] NSWCCA 286
Yaman v R [2020] NSWCCA 239
Yeung v R [2018] NSWCCA 52

Category: Principal judgment
Parties: Rex (Applicant)
Arken Abdull Sharrouf (Respondent)
Representation:
Counsel:
M Millward (Applicant)
G Huxley (Respondent)
Solicitors:
Office of the Director of Public Prosecutions NSW (Applicant)
Matouk Joyner Lawyers (Respondent)

File Number(s): 2020/31988
Publication restriction: Statutory restrictions apply – s 578A Crimes Act 1900 (NSW)
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

05 August 2022

Before:

Whitford SC DCJ

File Number(s):

2020/31988

HEADNOTE

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

On 5 August 2022, the respondent was sentenced in the District Court to an aggregate term of 10 years’ imprisonment with a non-parole period of 5 years in respect of eight counts of sexual assault without consent contrary to s 61I of the Crimes Act 1900 (NSW); one count of aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act; one count of indecent assault contrary to s 61L of the Crimes Act; one count of attempted choke with intent to commit an indictable offence (intimidation) contrary to s 37(2) of the Crimes Act; two counts of use offensive weapon with intent to commit an indictable offence (intimidation) contrary to s 33B(1)(a) of the Crimes Act; five counts of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act and six counts of common assault contrary to s 61 of the Crimes Act.

All of the offences were committed against the respondent’s then wife between 2007-2008. The respondent was arrested in 2020. He pleaded not guilty to 40 counts on an indictment and following a trial by judge alone in 2022, he was found guilty of 24 counts and not guilty of the remaining counts.

The Director of Public Prosecutions, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), appealed against the sentence on the following grounds:

The sentencing judge erred in his assessment of the objective seriousness of counts 9, 16 and 26;
The sentencing judge erred in imposing convictions with no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’) in relation to counts 2, 10, 36 and 38; and
The aggregate sentence is manifestly inadequate

The respondent accepted that the judge erred in imposing convictions with no further penalty pursuant to s 10A (Ground 2) and that the aggregate sentence was manifestly inadequate. The respondent submitted that the Court should exercise its residual discretion to decline to intervene.

The Court of Criminal Appeal unanimously found that the aggregate sentence was manifestly inadequate and allowed the Director’s appeal. The sentence imposed in the District Court of New South Wales on 5 August 2022 was quashed and the respondent was re-sentenced to an aggregate term of 14 years’ imprisonment with a non-parole period of 9 years: [266] (Price J); [269] (Wilson J); [282] (Dhanji J) in disagreement as to length of the re-sentence.
Held

As to Ground (1): Notwithstanding the judge’s advantage in characterising the objective seriousness of the offences, the finding that counts 9, 16 and 26 fell below the mid-range was erroneous. The spontaneity and duration of these counts did not diminish the objective gravity of these offences. The judge acted upon wrong principle and the objective seriousness of the offences was understated: [172] (Price J); [272] (Wilson J); [274] (Dhanji J not stating a concluded view).

Mulato v R [2006] NSWCCA 282; Magro v R [2020] NSWCCA 25; Kennedy v R [2022] NSWCCA 215, referred to.

As to Ground (2): Seriousness of domestic violence offences emphasised. The appropriate use of s 10A in a domestic violence offence must be rare. Neither the respondent’s subjective case nor the principle of totality permitted the judge to impose manifestly inadequate sentences which failed to recognise the harm to the victim: [191]-[194] (Price J); [269] (Wilson J); [273] (Dhanji J).

Munda v Western Australia (2013) 249 CLR 600; Mill v The Queen (1988) 166 CLR 59; R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551; Cherry v R [2017] NSWCCA 150; Yaman v R [2020] NSWCCA 239; R v Hamid [2006] NSWCCA 302, referred to.

As to Ground (3): The aggregate sentence and non-parole period was plainly unjust as it was so manifestly inadequate that it did not reflect the totality of the criminality involved in the offences: [213], [226]-[228] (Price J); [269] (Wilson J); [274] (Dhanji J).

It was open to the judge to find that the respondent experienced some psychiatric symptoms during his relationship with the victim, that he was less than fully aware of the consequences of his actions which diminished to some extent his moral culpability and reduced the significance of general deterrence and denunciation. It was open to the judge to find that the respondent’s abusive childhood reduced his moral culpability. The respondent’s youth and immaturity did not mitigate his repetitive violent offending: [213] (Price J); [270] (Wilson J); [278]-[279] (Dhanji J disagreeing on this issue).

Simultaneous offending did not necessarily lead to wholly concurrent sentences. Indicative sentences for counts 5, 12, 14, 27, 33, 34, and 40 were manifestly inadequate and a guide to the manifest inadequacy of the aggregate sentence.

Postiglione v The Queen (1997) 187 CLR 295; [1997] HCA 26; Mill v The Queen (1988) 166 CLR 59; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; BP v R [2010] NSWCCA 159, referred to.

As to the residual discretion: The Court found that the Director had demonstrated that the residual discretion to decline to intervene should not be exercised: [248]-[250] (Price J); [269] (Wilson J); [275] (Dhanji J).

Re-sentence: In re-sentencing the respondent, modest weight given to the respondent’s mental health at the time of offending in reducing his moral culpability; his present mental health and at time of offending reduced the weight to be given to general deterrence but heightened the need for specific deterrence: [257]-[264] (Price J); [269]-270] (Wilson J). Respondent’s youth and immaturity were interwoven with his exposure to domestic violence as a child and needed to be understood as part of the consideration of all relevant matters; significant weight to be given to rehabilitation: [279]-[280] (Dhanji J).

JUDGMENT

PRICE J: This is a Crown appeal brought by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on Abdul Arken Sharrouf (‘the respondent’) by Whitford SC DCJ (‘the judge’) on 5 August 2022.
In a trial by judge-alone, the respondent pleaded not guilty to 40 counts listed on the indictment. At the conclusion of the victim’s evidence, the judge found the respondent not guilty of counts 17, 30, 32, 35 and 39.
On 11 November 2021, the judge found the respondent guilty of the following offences:

Eight counts of sexual intercourse without consent, contrary to s 61I of the Crimes Act 1900 (NSW) (‘Crimes Act’) (counts 4, 12, 16, 26, 27, 33, 34 and 40);

One count of aggravated sexual intercourse without consent, contrary to s 61J(1) of the Crimes Act (count 5);

One count of indecent assault, contrary to s 61L of the Crimes Act (count 2);

Once count of attempted choke with intent to commit an indictable offence (intimidation), contrary to s 37(2) of the Crimes Act (count 14);

Two counts of use offensive weapon with intent to commit an indictable offence (intimidation), contrary to s 33B(1)(a) of the Crimes Act (counts 22 and 23);

Five counts of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act (counts 9, 19, 20, 21 and 36); and

Six counts of common assault, contrary to s 61 of the Crimes Act (counts 1, 8, 10, 13, 28 and 38).

The respondent was found not guilty of the remaining 11 offences.
On 5 August 2022, his Honour sentenced the respondent to an aggregate term of 10 years’ imprisonment with a non-parole period of 5 years commencing on 31 January 2020. The non-parole period expires on 30 January 2025. The aggregate head sentence expires on 30 January 2030.
The offences of which the respondent was found guilty, including the maximum penalties, findings as to objective seriousness, the standard non-parole periods, and the indicative sentences (where applicable) are set out in the table below:

Count	Offence	Maximum Penalty / SNPP	Finding of objective seriousness	Sentence/ Indicative sentence1
1	Common Assault s 61 Crimes Act	2 years	Below the mid-range	s 10A – conviction with no penalty
2	Indecent assault s 61L Crimes Act	5 years	Below the mid-range	s 10A – conviction with no penalty
4	Sexual intercourse without consent s 61I Crimes Act	14 years SNPP 7 years	Approaching the lower end of the mid-range	1y 6m NPP 9m
5	Aggravated sexual assault (inflict actual bodily harm) s 61J(1) Crimes Act	20 years SNPP 10 years	About the mid-range	3y 6m NPP 1y 9m
8	Common Assault s 61 Crimes Act	2 years	Below the mid-range	s 10A – conviction with no penalty
9	Assault occasioning actual bodily harm s 59(1) Crimes Act	5 years	Below the mid-range	4m
10	Common Assault s 61 Crimes Act	2 years	Below the mid-range	s 10A – conviction with no penalty
12	Sexual intercourse without consent s 61I Crimes Act	14 years SNPP 7 years	Below the mid-range	1y 6m NPP 9m
13	Common Assault s 61 Crimes Act	2 years	Below the mid-range	3m
14	Attempt to choke with intent to commit indictable offence (intimidation) s 37 Crimes Act	25 years	Below the mid-range	1y 6m
16	Sexual intercourse without consent s 61I Crimes Act	14 years SNPP 7 years	Below the mid-range	2y 6m NPP 1y 3m
19	Assault occasioning actual bodily harm s 59(1) Crimes Act	5 years	Below the mid-range	1m
20	Assault occasioning actual bodily harm s 59(1) Crimes Act	5 years	Below the mid-range	2m
21	Assault occasioning actual bodily harm s 59(1) Crimes Act	5 years	Below the mid-range	9m
22	Use offensive weapon with intent to commit indictable offence (intimidation) s 33B(1)(a) Crimes Act	12 years	Below the mid-range	9m
23	Use offensive weapon with intent to commit indictable offence (intimidation) s 33B(1)(a) Crimes Act	12 years	Below the mid-range	9m
26	Sexual intercourse without consent s 61I Crimes Act	14 years SNPP 7 years	Below the mid-range	1y 6m NPP 9m
27	Sexual intercourse without consent s 61I Crimes Act	14 years SNPP 7 years	Approaching the mid-range	3y NPP 1y 6m
28	Common Assault s 61 Crimes Act	2 years	Below the mid-range	s 10A – conviction with no penalty
33	Sexual intercourse without consent s 61I Crimes Act	14 years SNPP 7 years	Below but approaching the mid-range	2y 9m NPP 1y 4m
34	Sexual intercourse without consent s 61I Crimes Act	14 years SNPP 7 years	Below but approaching the mid-range	2y 6m NPP 1y 3m
36	Assault occasioning actual bodily harm s 59(1) Crimes Act	5 years	Below the mid-range	s 10A – conviction with no penalty
38	Common Assault s 61 Crimes Act	2 years	Below the mid-range	s 10A – conviction with no penalty
40	Sexual intercourse without consent s 61I Crimes Act	14 years SNPP 7 years	Below the mid-range	2y 6m NPP 1y 3m

Grounds of appeal

The notice of appeal identifies the following grounds:

Ground 1 – The sentencing judge erred in his assessment of the objective seriousness of counts 9, 16 and 26;

Ground 2 – The sentencing judge erred in imposing convictions with no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’) in relation to counts 2, 10, 36 and 38; and

Ground 3 – The aggregate sentence is manifestly inadequate.

Background facts

In May 2007, the respondent and victim were married according to the Islamic faith of which they were both adherents. At this time, the respondent was 20 years old and the victim was 18 years old. They regarded each other as husband and wife, despite the marriage not being registered as a legally recognised union.
Upon marriage, they initially resided with the respondent’s mother at Punchbowl.
The respondent committed the offences within a 518 day period after the marriage had commenced, taking place on a total of 21 distinct occasions. All instances of offending occurred when the victim and respondent were alone.
Each of the offences were committed in their shared home, with the exception of counts 1 and 8 (which occurred in a relative’s home), count 9 (which occurred outside a relative’s home) and counts 10 and 28 (which occurred in a car).
In October 2008, the victim’s family came and collected her from the respondent’s home. The victim immediately requested a divorce, which was granted that day in accordance with her faith and culture.
The victim first made a statement to police in November 2009 but she gave evidence during the trial that she did not proceed further as she was young and scared. She made a formal statement to police in July 2019.
The respondent was arrested in relation to the offences on 31 January 2020.

The respondent’s offending

The following summary of the respondent’s offending is drawn from his Honour’s verdict judgment and the Crown Case Statement, which was said by the judge to be ‘uncontroversial’, having regard to his earlier judgment. [1]
1. The indicative sentences specified by the judge reflect a 5 percent discount for what the judge described as the utilitarian benefit of the respondent’s election for trial by judge alone.

Count 1

Between June and August 2007, the victim was at her sister-in-law’s home. Earlier that day, the victim had sought counsel about her personal finances and whether it was appropriate for the respondent to have control of her bank account. The respondent became aware that the victim had sought advice.
Later that evening, the respondent approached the victim in an upstairs bedroom and said, “You went and spoke with my mother.” The victim agreed she had spoken with his mother and others about her finances.
The respondent was standing a short distance from the victim and slapped her, hard, to the left of the face. No one else was present when this occurred. The victim immediately felt pain to the left side of her face. The respondent told her not to do it again.

Count 2

During the period between June and August 2007, the victim and respondent were alone in the loungeroom at their home in Punchbowl.
The respondent sat next to the victim on the couch and started to kiss her so roughly on the lips that she could taste blood in her mouth. The victim said, “No, you [have] your family, I’ll see your family tomorrow” and “Your mum could come home at any time.” The respondent said, “I don’t care, let them see that you’re mine.”
The respondent then sucked on the victim’s neck. This was done with enough force that the victim’s neck was bruised black “from ear to ear”.

Count 4

During the period between June and August 2007, the victim and respondent were home alone late one afternoon. The respondent asked the victim to perform oral sex on him. The victim told him that she did not want to.
The respondent grabbed the victim by the back of her head and forced her mouth onto his penis. He pushed the victim’s head down until she vomited on his stomach.

Count 5

During the period between June and August 2007, the victim and respondent were at their home engaging in consensual sex in their bedroom. The victim was on her hands and knees with the respondent behind her, his erect penis in her vagina.
The respondent removed his penis from the victim’s vagina and forcefully thrusted it into the victim’s anus. The victim screamed and cried. The victim said, “please stop”. The respondent said “please” and continued to thrust his penis in and out of the victim’s anus. There had been no prior discussion between the respondent and the victim about anal sex.
After this incident, the victim went to the bathroom. She was in pain which made walking difficult. She saw that the toilet bowl was splattered with blood and noticed blood on the toilet paper when she wiped.

Count 8

During the period between August and October 2007, the victim was staying at her sister-in-law’s home at Wiley Park. The respondent had dropped her off there a number of days earlier following an argument.

One evening while at this residence, the victim was home alone and the front and back doors were locked. While washing dishes in the kitchen, the victim felt a person grab her hair from behind and pull. Her hair was pulled in a way that caused her to turn around and face the respondent.
The respondent pulled the victim’s hair for approximately 10 seconds in a ‘very forceful’ manner. The respondent and victim remained in this position for about a minute. The victim said, “You’re not allowed to be here… it’s [your brother’s] house.” The victim then ran to the bathroom and locked herself inside, where she remained for 20-30 minutes. During this time, the respondent left the house.

Count 9

A number of hours after the events of count 8, the victim received text messages from the respondent asking her to come outside and speak with him. The victim walked out and entered the respondent’s car.
The respondent instructed the victim to come home. The victim told the respondent that she didn’t want to come back unless he had changed. The respondent said, “I’m going to be like this, in fact I’m going to get even worse.” The victim said she would not return home and exited the car.
The victim started to run from the car towards the house. The victim could hear the respondent chasing her and turned around to see how close he was. The respondent then hit the victim to the face with a closed fist causing her to fall to the ground, losing consciousness. When the victim regained consciousness she was dizzy. Her nose was broken with blood and chunks of flesh coming out of it. The respondent picked the victim up off the ground and carried her to the car and drove her to their home.
The next day, the victim had a black eye and felt throbbing in her head, which both lasted about a week. The pain in the victim’s nose lasted for several weeks.

Count 10

During July to September 2007, the victim and respondent were at home in the loungeroom. The victim was filling out a lease form. The respondent saw that the victim had put her name first. He accused her of doing it so that she would have somewhere to go if they split up.
The victim told the respondent that there was no reason behind her writing her name first. The respondent told her to get dressed and get in the car. The respondent then drove the victim to his sister’s home and stopped in the driveway. He turned to the victim asking her to admit that she put her name first on purpose. The victim responded, “I didn’t. I didn’t do anything.”
The respondent put his open right palm against the right side of the victim’s head and slammed her head hard against the closed front passenger window. He repeated the demand before slamming her head against the window an additional three times. This caused the victim to feel winded and dizzy.
The respondent told the victim to get out of the car. He then said “You’re divorced.” The respondent reversed from the driveway, leaving the victim outside his sister’s home.

Count 12

During September 2007, the respondent and victim were at their home at Wiley Park. This was during Ramadan. The victim was lying in bed watching a DVD and the respondent was lying beside her. The respondent began kissing the victim’s neck and touching her vagina and underwear.
The victim said, “We can’t do this. It’s Ramadan.” The respondent said, “It’s fine. As long as no one ejaculates it will be fine” and continued. The victim understood that sex is forbidden when fasting during Ramadan. The respondent removed the victim’s pants and underwear and got on top of her. The victim kept saying “No, we can’t, we can’t.” Although the victim became aroused she did not want to have intercourse at this time as it went against her beliefs.
The respondent pushed his erect penis into the victim’s vagina and began thrusting in an out. The victim continued to say “We can’t.. we can’t”. The respondent continued to thrust into the victim’s vagina until he ejaculated.

Count 13

During September or October 2007, the victim and respondent were at home. The victim recalled this being during Ramadan. The victim was cooking as the respondent’s friends were coming for Iftar, the evening meal after fasting during the day.
The respondent told the victim that he had received a phone call from his friend saying that his wife and children were no longer coming for dinner and said “this is what I get for marrying someone like you”. The victim saw the respondent’s facial expression change, and she immediately became fearful of being assaulted.
The victim ran to the bathroom, closing and locking the door. The respondent followed the victim and bashed on the door, trying to open it. The respondent eventually punched a hole through the door, reached his hand through and unlocked it. The respondent then grabbed the victim by the hair and dragged her backwards out of the bathroom to their bedroom.
The victim managed to get to her feet and went to sit on the right side of the bed. The respondent walked to where the victim was sitting and forcefully punched her to her left cheek and jaw. He then grabbed her by the front of the neck, squeezed and pushed her backwards into the bed’s wooden headboard. The victim was crying. Her face was sore following the incident.

Count 14

During September to October 2007, the victim and respondent were in their bedroom. The victim recalled this being during Ramadan. The respondent asked the victim what meal she had planned to make that day. The victim replied that she was making a rice and chicken soup. The respondent said, “No, you’re not, you’re making broth”. The victim said “No, I’m making soup.” The respondent told the victim not to lie to her superiors.
The victim was lying on the bed. The respondent stood up on the bed and put his right foot on the throat and neck of the victim, applying pressure and reducing her air and blood flow. The respondent told the victim to admit she was making broth. The respondent removed his foot from her neck and she said “I’m making chicken soup… I’m not making broth.” The respondent stepped on the victim’s neck again. Eventually, the victim said, “Fine, I was making a broth.”
The victim described that it was “humiliating to have someone put their foot on your neck and have the life crushed out of you”.

Count 16

During October to November 2007, the victim was home alone late at night. The respondent returned home after 3:00am and got into bed. The respondent pulled the victim, who was laying on her side, closer to him. The victim pretended to be asleep. She could feel the respondent’s erect penis pressing against her back.
The respondent pulled the victim’s underwear down and pulled her closer, together against him. The victim felt the respondent push his erect penis against her anus. She tensed her muscles in an attempt to stop him. She did not intend to have sexual contact with the respondent at this time.
The respondent spat and used this as a lubricant on his penis. He then pushed his erect penis into the victim’s anus. The victim cried and said, “No, please stop, please stop.” The respondent continued to have penile-anal intercourse until he ejaculated, rolled away from her, and went to sleep. Nothing had been said by the respondent.
The next morning, the victim’s anus was sore which made walking painful. When she went to the bathroom to clean herself she saw a mixture of blood and semen on the toilet paper she used.

Count 19

During October to December 2007, the victim was home alone late one evening while the respondent was out with a friend.
When the respondent came home and got into bed, he spoke to the victim about his friend’s marriage problems. The victim said, “tell him it’s going to be fine… he’ll be able to find another woman”. The respondent said, “you’re in love with him. I know you’re in love with him”. The respondent forcefully punched the victim to the mouth. The victim’s upper and lower lips were cut from the dental retainers she was wearing on her top and bottom teeth.
Following this assault, the victim’s mouth and lips were very sore and she couldn’t eat for a couple of days. The assault left an injury “like a giant ulcer”, which took about two weeks to heal.

Count 20

During November to December 2007, the victim and respondent were at home in the loungeroom. The respondent was a smoker, which was disliked by the victim.
The respondent wanted to have a cigarette and there was only one left. The victim said, “This cigarette is your world… you love it so much”. The respondent said “I love it more than you”. The victim became angry and grabbed the respondent’s last cigarette and said, “you love this… more than me?” The respondent pushed the wooden table and the victim began to run from him.
The respondent knocked the victim to the floor. As she fell, the cigarette was accidentally crushed. The victim screamed “is this what you love more than me?” The respondent’s knee was in the victim’s back. The victim felt the respondent bite down hard on the right side of her upper back between her shoulder blade and her bra strap. The bite pierced the victim’s skin causing her to bleed.

Counts 21 and 22

During November 2007 to January 2008, the victim and respondent were in a car, with the respondent driving. The respondent came to a red stop light. Stopped to their left was a NSW Fire Brigade Truck.
The victim looked up towards the truck and her eyes met with the driver. The respondent said “why are you looking at him”, the victim replied “There’s no reason”. The respondent repeated himself.
They arrived at home and went to the bedroom. The respondent kept asking “why, why were you looking at him”. He walked out of the bedroom and returned holding a two-pronged metal roasting fork approximately 2 feet long then told the victim to lie on the bed and lift her feet into the air. The respondent held both of the victim’s feet up by the ankles and aggressively hit the bottom of her bare insteps with the metal roasting fork approximately 15 times. The respondent said “tell me the truth. Tell me the truth.” The victim said “I wasn’t. I wasn’t.”
The respondent made the victim get off the bed and walk into the lounge room. He then walked the victim around a coffee table. He said “feel the pain for your disobedience and your lying ways”. The respondent walked the victim back to the bedroom and repeated the process of hitting the soles of her feet with the roasting fork approximately 15 times and then making her walk around the loungeroom. This process was carried out a total of three times.
The victim’s feet were left red and swollen to the point that her insteps had disappeared. The victim’s injuries made it painful for her to walk, causing her to hobble and to avoid walking as much as possible.

Count 23

On the evening of 31 December 2007, the victim and respondent were at a family gathering in Roselands. After an hour or two, the respondent told the victim they were going home. During the drive home, the respondent said “admit you were trying to… you were flirting with Mustafa”. The victim said, “No I wasn’t.”
When the victim and respondent got to their home, the respondent told the victim to get undressed and lay down on the bed. The respondent walked into the bedroom carrying a wooden spoon and said “[You] have the power to… stop it all if [you] would just admit the truth.” The victim said “No I didn’t, no I didn’t.”
The victim laid down on the bed and raised her bare feet in the air. The respondent hit the victim’s insteps a number of times with the wooden spoon. He then made her get up and used the spoon to prod her towards the loungeroom. He walked her around the loungeroom, repeatedly telling her to “admit it”.
The respondent repeated the process of hitting the soles of the victim’s feet with the wooden spoon and making her walk around the loungeroom between two and four times. While walking around the loungeroom, in a moment of anger and defiance, the victim said “Yeah, you know what? I want to fuck him.”
The victim immediately feared reprisal and ran to the bedroom with the respondent chasing her. The victim jumped over the bed and then attempted to run over the top of the bed to get back towards the doorway. As she jumped over the bed, the bedframe broke.

Count 26

During November 2007 to January 2008, the victim was reading in the bedroom late one afternoon. The respondent walked in and told the victim to put her book down and lie down.
The victim lay down and the respondent began squeezing the victim’s breasts in an aggressive way. The respondent lay on top of the victim, pushed his erect penis into her vagina and thrusted in and out. The victim was not physically prepared for sexual intercourse and it was painful.
The respondent rolled off the victim and asked her to perform oral sex on him. She replied, “It’s disgusting. You’ve just been in me.” The respondent said “I’m ordering you to.” The victim understood that if the respondent ordered her to do things she was obligated to comply.
The victim reluctantly took the respondent’s penis in her mouth and performed oral sex on him, as she was scared that if she didn’t the respondent would be sexually frustrated and she would be beaten. The victim recalled feeling “dirty, horrific and disgusting”.

Count 27

Following the incident described in count 26, the respondent told the victim to put her head down and her rear up. The victim became worried as she did not want anal intercourse to occur. She reluctantly followed his request, laying on her stomach. The respondent put his penis into the victim’s anus. The victim cried and said “stop”. This hurt the victim so much that she cried. The respondent continued thrusting his penis in and out of the victim’s anus until he ejaculated.

Count 28

During January to April 2008, the victim and respondent were shopping at a Big W store where car batteries were displayed. The respondent ordered the victim to place a car battery inside a bag she was carrying beneath her scarf. This caused the victim anxiety and fear, however she followed the respondent’s demands.
The respondent and victim walked through the sales point together without paying for the battery. As they were driving home, the respondent asked “what’s wrong”. The victim replied “It goes against my beliefs to steal.” The respondent said “It [is] fine to steal from [non-Muslims] because they’re at war with us.”
The respondent stopped the car and put his left hand on the right side of the victim’s head. He then forcefully shoved the victim’s head into the closed front passenger door window. This caused the victim immediate pain. She felt her head vibrating as if she had been punched in the face. The respondent told the victim that she would do what he told her to do.

Count 33

During February to August 2008, the victim was lying on the bed at home one afternoon. The respondent approached the victim and began to squeeze her breasts. The victim said that she didn’t want to have sex because the respondent’s father would hear them. The respondent’s father was outside the bedroom window, mowing the front lawn and the window was slightly open.
The respondent told the victim to get on her hands and knees on the bed. The respondent thrust his erect penis into her anus. The victim screamed and said “Stop. You’re in my bum.” The respondent became more rough and violent. He repeatedly said, “say you want to fuck my dad” and continued to thrust his erect penis into the victim’s anus. The respondent’s father was still outside mowing the lawn. The respondent ejaculated inside the victim’s anus and removed his penis.

Count 34

During June to August 2008, the victim was at home reading in the bedroom. The respondent came into the bedroom and started touching the victim’s vagina. The victim said, “We can’t. I’ve got my periods.” The respondent said “Go to the bathroom and remove [your tampon].” The victim replied that she did not want to. The respondent then said, “I order you to go and remove your tampon and come back.”
The victim went to the bathroom, removed her tampon and returned to the bedroom. The victim said “I don’t want to have sex with you. We cannot. It is haram. It’s forbidden.” The victim repeated words to this effect several times. She was referring to the Islamic teaching that women should not have sex during menstruation.
The respondent placed his erect penis in the victim’s vagina. He continued to thrust in and out of the victim’s vagina until he ejaculated. The respondent got off the victim, told her to “clean up this mess” and walked out of the bedroom.

Count 36

On a day between 1 June and 31 October 2007, the respondent showed the victim a video clip of pornography. The nature and subject of this video upset the victim.
The following day, the victim was sitting in the loungeroom. She was using a wooden rolling pin to prepare dough for a meal. The respondent became upset, believing the victim was hiding something from him. The victim denied this and did not tell the respondent that she was still upset from viewing the pornographic video the day prior. The respondent then told the victim to go to the bedroom to which she complied. The victim saw the respondent walk into the bedroom with the rolling pin she had been using.
The respondent used the rolling pin to repeatedly hit the tops of the victim’s legs. The blows were struck between the knees and the hips on both legs, but mainly on the right leg. The respondent struck the victim with a lot of force. About an hour later, the victim’s legs were so bruised they had turned black. The bruising remained for several weeks.

Count 38

Immediately following the events of count 36, the respondent continued to ask the victim what she was hiding from him and the victim continued to deny hiding anything. At one stage, the victim was lying with her face down on the mattress. At this time, the respondent stopped hitting her and sat on her hips. He then placed a pillow over the back of the victim’s head, pushing it into the mattress. He said “Stop doing this to yourself. Tell me what you’re hiding from me, tell me, tell me what you’re hiding from me.”
The respondent released the pressure of the pillow and questioned her again. After denying hiding anything once more, the respondent placed the pillow over her head and pushed it into the mattress three or four times.
By the final time, the victim felt like she was choking and feared she would die if she did not answer. The respondent removed the pillow and said “Are you going to tell me what you’re hiding from me?” The victim said the first thing she could think of which was “Your mum doesn’t want us to get divorced.” The respondent said “Why couldn’t you just say that from the beginning?... look at what you made me do. Why do this to yourself?”

Count 40

During April to September 2008, the victim and respondent got out of bed one morning to perform Fajr (morning prayer). The victim’s mother-in-law was making coffee in the kitchen. After prayer, the victim was in the bedroom.
The respondent entered the bedroom and asked the victim to have sex with him. The victim said “No… we can’t do this. Your mum is in the next room, she’s going to hear us.” The respondent put his erect penis inside the victim’s vagina and thrusted in and out. The victim said “Your mum’s going to hear us. Stop.” The respondent continued.
The respondent then rolled the victim onto her side and put his erect penis into her anus. He then used his hands to push the victim onto her stomach and continued to thrust in and out of her anus. The respondent ejaculated inside the victim’s anus. The victim rolled over and cried quietly with her face buried in the pillow. She listened for the respondent’s mother and waited for her to leave then got out of bed and went to the bathroom.

The proceedings on sentence

During the proceedings on sentence, the Crown’s tender bundle included a victim impact statement in which the victim stated, inter alia, that;

“the [respondent] stole my innocence and trust of the world which took a long time to gain again
…
I’m glad to say that I was smart enough to take the road of therapy to recover from the heinous crimes committed by the [respondent]…”

The respondent’s subjective case

The respondent did not give evidence before the judge, however the written material tendered on his behalf included: two reports of Dr Sam Calvin; a report of Dr Martin Reading; a decision of the Mental Health Review Tribunal dated 21 November 2021; a judgment of Ingram SC DCJ dated 20 and 21 July 2020; and letters of support from the respondent’s mother and brother.
The respondent was born in Sydney on 11 November 1986. The offences were committed when he was aged 20 to 22 years old. He was 35 years old when sentenced.
The respondent’s criminal history as an adult disclosed that in 2017, he was convicted of resisting a police officer in the execution of his duty and a failure to appear. He was placed on a 12 month good behaviour bond.
In July 2019, the respondent was arrested in relation to domestic violence offences against his second wife. Following a trial by judge alone before Ingram SC DCJ, his Honour found the respondent not guilty on counts 1 and 4. His Honour entered special verdicts of not guilty by reason of mental illness in respect of counts 2,3 and 5.

First report of Dr Calvin dated 30 January 2020

For the purposes of the trial before Ingram SC DCJ, the respondent was assessed on 16 January 2020 by Dr Calvin, a forensic psychologist. At the date of this assessment, the respondent had not been charged with the present offences.
In recounting his personal history to Dr Calvin, the respondent said that he had a reasonable childhood but he struggled during high school where he was often bullied and was unable to cope. He left school and started using cannabis. Around the same time, there were issues at home and his parents separated when he was 14. The respondent said he worked in odd jobs in construction and as a taxi driver. He had a work related back injury in 2011.
His marriage to his second wife, who he met in Lebanon, was an arranged marriage. The first few years of married life were difficult as they had significant financial stress and his psychiatric illness took a toll on his family life.
Dr Calvin noted that the respondent reported being diagnosed with schizophrenia approximately 9 years earlier. He described his main symptoms to include command type auditory hallucinations and persecutory delusions. He said that the voices started when he was 13 years old. During his teenage years, he attributed his symptoms to drug use. The respondent told Dr Calvin that he had not understood his symptoms until he consulted a psychiatrist, Dr Ali, who made the diagnosis of schizophrenia and he had been on an antipsychotic ever since.
The respondent related that he first used cannabis at the age of 13, when he had auditory hallucinations and continued until the age of 17. At age 18, he started drinking alcohol, drinking up to a bottle of spirits daily for two to three years. He said that at the age of 24, he became religious and stopped all substances. He claimed to have remained abstinent from all drugs for 8 to 9 years prior to the assessment.
Dr Calvin was of the opinion that the respondent had an established diagnosis of schizophrenia. Dr Calvin stated “[i]t appears that the [respondent] had psychotic symptoms from the age of 13 and remained untreated until the age of 24 when he was prescribed an antipsychotic by a psychiatrist Dr Ishrat Ali.” The respondent’s main barrier to recovery had been his erratic compliance with antipsychotic medication and he had relapsed into psychosis and developed delusional ideas about his second wife.
Dr Calvin noted that since the respondent’s incarceration, his mental state had improved, and his psychotic symptoms had reduced to a manageable extent. The respondent required ongoing specialist care with assertive follow-up in the community, and was often non-compliant with his antipsychotic medication.

Second report of Dr Calvin dated 28 April 2022, which was prepared for the sentence proceedings before Whitford SC DCJ

Dr Calvin reported that the respondent had an established diagnosis of treatment-resistant schizophrenia. His psychotic symptoms appeared during his teenage years in the context of cannabis use and had persisted even after he ceased using cannabis. He began treatment in his early twenties with antipsychotic medication, but his medication compliance was erratic.
Dr Calvin stated that “in recent years, his psychosis has worsened, and his response to usual treatments has been suboptimal.” Fortunately, the respondent had improved over time, and his prison medical file suggested that he had responded to medication and was ready for further rehabilitation. The respondent remained on a complex psychiatric regime which needed ongoing medication.
When referring to the present offences, Dr Calvin stated that the respondent maintained his innocence and that he was “unable to establish a clear link between the [respondent’s] psychiatric symptoms and the alleged offending.”
Dr Calvin went on to say:

“[The respondent] has been chronically unwell since his teenage years and has been intermittently treated for his condition. It seems likely that he would have had some symptoms during his relationship with the victim.”

Dr Reading’s report and the decision of the Mental Health Review Tribunal

In a report dated 24 October 2021 prepared by Dr Martin Reading, a forensic psychiatrist and Acting Clinical Director of Custodial Mental Health for the Mental Health Review Tribunal (‘the Tribunal’), Dr Reading confirmed the respondent’s diagnosis of schizophrenia. The respondent had also exhibited features consistent with a melancholic depression.
Dr Reading re-stated much of the detail outlined in Dr Calvin’s first report, including the respondent’s use of cannabis and alcohol during his teenage to early adult years.
He reported that following his incarceration in July 2019, the respondent was highly psychotic. He was distressed, thought disordered and so highly distracted by auditory hallucinations that he had difficulty maintaining a conversation. The respondent was admitted to the Mental Health Screening Unit at the MRRC in September 2019 and was transferred to the step-down Hamden unit in August 2020.
Dr Reading reported that the respondent’s symptoms of schizophrenia, including delusions, hallucinations, and melancholic depression, had responded well to treatment though he continued to experience some negative symptoms.
Dr Reading detailed the respondent’s medication regime which included: Clozapine, Duloxetine, Hyoscine, Prazosin and Metformin XR.
Dr Reading stated that “[t]he treating team strongly supports the [respondent’s] comprehensive psychiatric rehabilitation at the Forensic Hospital.”
On 30 November 2021, the Tribunal considered that the respondent’s placement in the Forensic Hospital continued to be appropriate. The Tribunal noted the order dated 5 May 2021 for the respondent’s transfer to the Forensic Hospital. The Tribunal stated that the respondent’s illness appeared to be in remission with adjustments to his medication.
The Tribunal determined that there should be no change to the current order.

Ingram SC DCJ’s judgment

In his reasons for judgment delivered on 20 and 21 July 2020, Ingram SC DCJ canvassed at length the reports of Dr Reading, Dr Calvin, and Dr Martin, who was called by the Crown. The judge was ultimately satisfied on the balance of probabilities that the respondent suffered from a disease of the mind being schizophrenia, and that at the time of the offences he was experiencing the effects of that disorder to a degree that he was unable to know the nature and quality of his acts. Shortly stated, Ingram SC DCJ was satisfied that the respondent met the requirements of the McNaughten [2] principles for the mental illness defence.
2. Tcpt, 5 August 2022 (‘ROS’), at [4].
In his judgment, Ingram SC DCJ referred to the evidence of the respondent’s second wife who was the complainant. They had been married for about 8 years. She gave evidence that she had been his carer on a day to day basis over a period of 7 years. [3] She said that prior to the offending she had never been subjected to violence or treated badly by the respondent. [4]
3. R v McNaughten [1843] 8 E. R. 718.
4. Tcpt, 21 July 2021 (‘Ingram SC Judgment’), p 62.
The respondent had been medicated with Olanzapine for schizophrenia, but some weeks before the offending had stopped taking the Olanzapine and began taking Duromine. She gave evidence that on the evening of the offences, the respondent was like a different person and different to the way he behaved over the preceding 8 years. [5] She further gave evidence that he did not appear to be conscious during the attack and it was as if he was not there. [6]
5. Ingram SC Judgment, p 62.
6. Ingram SC Judgment, p 65.

Letters of Support

In a letter to the judge, the respondent’s mother, Hoda Alomar, described his family life as being “very forceful and unstable”. She stated that the respondent’s father was an abuser and their family life was “full of domestic violence both physical and mental”. The respondent saw the abuse firsthand and the father’s violence had a “very negative affect on all [the] children”. Even though Ms Alomar divorced the respondent’s father, she stated that he was “still an abusive fixture” in her children’s lives.
Ms Alomar stated that the respondent had numerous mental issues with diagnosis of “schizophrenia, ADHD and severe anxiety”. She believed that most of the issues stemmed from the respondent’s very abusive childhood.
Ms Alomar stated that the respondent had four beautiful children; that he was a good man and a good father. She described the sense of grief and loss for his relationships, particularly for his children due to his incarceration. He had been taking his medication for schizophrenia and was back to being the person “we all know and love”.
Mostafa Sharrouf, the respondent’s brother, in his letter to the judge referred to their family life being “filled with violence, physical and emotional”. He believed that the respondent was most affected as he witnessed and experienced “the horrific abuse first hand”.
Mr Sharrouf referred to the respondent’s diagnosis of schizophrenia and stated that when he takes his medication properly the respondent was “one of the kindest most caring people [he knew]”.

Some findings by the judge

The judge’s findings as to objective seriousness and the indicative sentence starting points are summarised in the table above at [6].
The judge found in respect of the offences which occurred within the residence of the victim and respondent, an aggravating feature was that the offences were committed in the home the victim shared with the respondent. His Honour observed that although some of the offences were grouped as part of a single incident, every individual offence was of short duration. His Honour said that none of them “represented planned conduct but were all rather spontaneous representations of the [respondent’s] perverse perception of his marital entitlement”. [7]
7. Ingram SC Judgment, p 68.
The judge said the offences were committed not by a stranger but within a “marriage; at least insofar as it was recognised as such by the victim and the [respondent]”. This was neither a mitigating nor an aggravating factor, but rather a matter proper in assessing the gravity of the offending. His Honour said that the offences were “domestic violence offences”. [8]
8. ROS at [10].
Another salient feature of all of the offending, the judge said was that the respondent and the victim were both very young. When they “married”, the respondent was aged 20 and the victim was 18-19 years of age. They had never lived independently and there was a “degree of apparent immaturity in them both”, which was particularly obvious in the respondent. Both came from a religious background, which his Honour observed “seems to have informed, rightly or wrongly, various assumptions each held about matrimonial obligations, roles and behaviour.” [9]
9. ROS at [11].
The judge rejected the Crown’s contention that the offences were aggravated by having been committed in breach of a position of authority. However, his Honour observed that the offences did reflect the respondent’s disdain “at least in those moments, for the rights and feelings of his wife.” [10] His Honour said that many of the offences, if not all, involved an affront to the victim’s dignity which his Honour found was “more likely reflective of an immature and insecure (if not also disturbed) personality on the part of the [respondent]”. [11] His Honour found that much of the offending was “calculated or intended to try and dominate and control the victim”. [12] This was another factor to consider in assessing the gravity of the offending.
10. ROS at [12].
11. ROS at [13].
12. ROS at [13].
The judge observed that the victim’s assumptions around the practice of her faith tended to enhance her vulnerability. His Honour said that her faith, isolation, age, and lack of maturity appeared to have kept her from escaping, or reporting at the time, the abuse she was experiencing. His Honour described the victim as being “alone, isolated and vulnerable”. [13]
13. ROS at [13].
His Honour observed that domestic violence of any kind, particularly where it involved repeated episodes over a sustained period as was demonstrated by the respondent’s offending, must be emphatically denounced. His Honour said that general deterrence has a corresponding role to play, “diminished to some extent in the present case perhaps by a combination of the psychiatric compromise of the [respondent], the substantial delay between the conduct and the resolution of the matter and the youth and immaturity of the [respondent] at the relevant time.” [14]
14. ROS at [14].
The judge said that the sentencing exercise must also give substantial acknowledgement to the victim. His Honour then said:

“Occurring as it did at a time when she was isolated and vulnerable, and just barely an adult, my impression is that it is an understatement to say that the consequences to the victim have been difficult, as one might expect, and enduring.” [15]
15. ROS at [42].

The judge found that many of the offences involved conduct that was offensive, degrading and sometimes cruel towards the victim. His Honour said there was evidence which pointed strongly to the likelihood that it was “not conduct characteristic of the way the [respondent] conducted himself subsequently as a partner and as a father, and as a member of the community, at least when he has been medication compliant”. [16]
16. ROS at [43].
The judge said that the respondent had a very limited criminal history which did not deny the respondent “the extension of some leniency”. [17]
17. ROS at [44].
His Honour noted that at the time the respondent was charged with domestic violence offences committed on 1 and 2 July 2019 against his then wife, he was 33 years old. Before being charged, he was residing at his mother’s home with his wife and their four children. He had been receiving a Disability Support Pension for 7 years, after being diagnosed with schizophrenia. His Honour recounted that the respondent’s main symptoms included command type auditory hallucinations and persecutory delusions. On the respondent’s own report, the voices started when he was 13 years old.
The judge said that the respondent had for much time since being diagnosed, been on medication. The respondent did not understand these symptoms until he was diagnosed.
After referring to the reports of Dr Calvin and Dr Reading, the judge determined that “in the absence of expert evidence, it is impossible to reach any definitive conclusion concerning a causal connection between any psychological or psychiatric compromise on the [respondent’s] part and the offending.” [18]
18. ROS at [27].
However, his Honour was satisfied that the whole of the evidence pointed to it being more likely than not that the respondent would have experienced some psychiatric symptoms during his relationship with the victim. His Honour noted:

“Aspects of his offending behaviour seem to reasonably attract a conclusion that they are consistent with the presence at the time of the later diagnosed schizophrenia. Furthermore, whether on that account, or on account of his youth and immaturity, or the developmental normalisation of controlling, violent domestic behaviour, it seems reasonably open to conclude, as I do, that it is more likely than not that the [respondent] was less than fully aware of the consequences of his actions at the time of offending. This serves to diminish, to some extent, his moral culpability. Correspondingly, it reduces the significance that should be given to general deterrence and denunciation.” [19]
19. ROS at [47].

The judge observed that the fact the respondent continues to deny the offences and maintains they have been fabricated represented “a continuing failure to appreciate the nature and consequences of his conduct”. [20]
20. ROS at [48].
The judge said that:

“Even a reasonable possibility, if not indeed the substantial likelihood as I find on the evidence, that the [respondent’s] psychiatric compromise was operative to some extent at the time of the offending demands considerable caution in an approach to fix a penalty. This, taken together with the relative youth and demonstrated immaturity of the [respondent] at the relevant time, justifies substantial leniency that would not otherwise have been appropriate for offending of this kind.” [21] (Emphasis added.)
21. ROS at [48].

The judge said that, whatever may have been the case during the period of offending, it was plain beyond doubt that the respondent now suffers from schizophrenia, which profoundly disturbs his capacity for self-regulation when left untreated. The judge found that even if his abnormality of mind was not causally connected to the commission of the present offences, it still remained relevant for sentencing purposes, stating “the [respondent’s] well documented schizophrenia is relevant to and must have an ameliorating effect on his sentence.” [22]
22. ROS at [49].
His Honour also found the substantial delay in the prosecution of the respondent to be another factor which attracted leniency in sentencing. [23]
23. ROS at [52].
His Honour further concluded that the respondent’s election for trial by judge alone facilitated the administration of justice at “a time of immense difficulty occasioned by the COVID-19 pandemic”, thereby affording a 5% discount on sentence as a utilitarian benefit. [24]
24. ROS at [53].
The judge referred to the respondent’s “demonstrated psychiatric compromise” as suggesting the advisability of the respondent being subject to a period of extended supervision upon release. His Honour said that would ensure appropriate regimes of treatment and medication. His Honour “in addition” referred to the respondent’s custody coinciding with the COVID-19 pandemic which had “notorious” custodial restrictions which more likely than not combined with the respondent’s compromised mental health made the respondent’s time in custody substantially more difficult than it otherwise might have been. His Honour then said:

“These factors combine with the [respondent’s] relative youth at the relevant times to compel a finding of special circumstances and support a substantial adjustment to the statutory ratio.” [25]
25. ROS at [57].

The judge found that “the nature of the offending in the context of a marriage and reflecting the perverse dynamics of marriage, dictated by the aberrant behaviour within it of the [respondent], there is a sense in which all the offending can be characterised as part of a single continuous episode.” [26] His Honour acknowledged the need to avoid a “crushing sentence”, so as not to compromise any hope of resolution or management of the respondent’s illness. His Honour further determined that it would be difficult to avoid substantial notional concurrence, as the accumulated total of individual sentences would likely far exceed the aggregate sentence that would be appropriate to impose. [27]
26. ROS at [39].
27. ROS at [60].

His Honour referred to the support of the respondent’s treating team for comprehensive psychiatric rehabilitation, and that he was to be transferred to a mental health wing which would permit him to undertake courses and employment whilst awaiting a bed at the Forensic Hospital. His Honour found these to be “positive developments that augur well for his future prospects.” [28]
28. ROS at [62].
The judge indicated the sentences in the table at [6] above and then imposed an aggregate sentence.

Crown Appeals

The principles relating to Crown appeals pursuant to s 5D of the Criminal Appeal Act were helpfully summarised by Hoeben CJ at CL in R v Barker [2016] NSWCCA 193 as follows:

“[52] Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 must be brought for the primary purpose of this Court providing governance and guidance to sentencing courts. That requirement operates as a “limiting purpose” for such appeals and, by contrast with the Court’s jurisdiction in sentence appeals brought by offenders, so circumscribes the jurisdiction of this Court on Crown appeal as to prevent intervention (other than on the ground that the sentence is ‘plainly unjust’ by reason of its manifest inadequacy) for the mere ‘correction of error in the individual sentencing proceedings’ Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; R v Tuala [2015] NSWCCA 8.
[53] Accordingly, in a s 5D Crown appeal which asserts some errors of sentencing principle (apart from the ground that the sentence is “plainly unjust”) the Crown must:
(i) Establish the existence of error(s) by the sentencing judge within one or more of the first four categories referred to in House v R [1936] HCA 40; 55 CLR 499 at 505 (R v Tuala at [99]);
(ii) Identify the sentencing principle which is engaged by such errors: (R v Tuala at [99]);
(ii) Establish that the sentence under appeal is manifestly inadequate: (Regina v Janceski per Hunt AJA at [25] with whom Spigelman CJ and Howie J agreed).
…
[55] Crown appeals pursuant to s 5D might also be brought for the purpose of this Court providing governance and guidance to sentencing courts where the sentence under appeal is so manifestly inadequate that it is ‘plainly unjust’ and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders: (Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]). Such appeals involve the fifth category of error referred to in House v R.” [29]

29. ROS at [63].

Submissions

The respondent accepted that the judge erred in imposing convictions with no further penalty pursuant to s 10A of the CSP Act, in relation to counts 2, 10, 36 and 38 (Ground 2) and that the aggregate sentence imposed on the respondent was manifestly inadequate (Ground 3). Given that acceptance, the respondent did not address Ground 1. The respondent’s submissions focussed on whether this Court should exercise its discretion to intervene and re-sentence the respondent.
The Director submitted that, notwithstanding the respondent’s concessions in relation to Ground 2 and 3, this Court should consider Ground 1 as this Court would ultimately be required to make an assessment of the objective gravity of counts 9, 16 and 26.
As to Ground 2, the Director argued that the appeal provided an important opportunity for this Court to provide guidance to lower courts as to the proper operation of s 10A where an offender has committed a large number of domestic violence offences.
I propose to deal discretely with each of the grounds of appeal and then consider the submissions of the parties as to the exercise of the residual discretion.

Ground 1: His Honour erred in his assessment of the objective seriousness of counts 9, 16 and 26

In addition to the matters referred to by the judge which have been summarised at [123]-[127] above, when determining the objective seriousness of the offences, the judge said:

“The ten to twelve more serious of the present offences, as measured by the applicable maximum penalties, were by and large all quite serious. That said, they were all offences committed spontaneously and, in many of the sexual offences, as emphasised in the [respondent’s] written submissions on sentence, were committed recklessly rather than knowingly contrary to the will of the victim. All of the offences were committed by a young, immature individual. That said, it is difficult to escape the conclusion that, viewed only objectively, the sexual offences committed with knowledge are reasonably characterised as falling at least towards the middle of the range on the spectrum of conduct that might be caught by the relevant offence provisions. Some of them are accompanied by a degree of evident degradation of and disregard for the victim. The balance of the offences are reasonably characterised as falling below the mid-range, as the [respondent’s] written submissions contended.” [30] (Emphasis added.)
30. R v Cattell [2019] NSWCCA 297 at [79].

His Honour, after stating “[i]n addition to the features I have identified as having significance common to the assessment of gravity of most if not all of the offences…” went on to specifically consider counts 4, 12, 16, 27, 33 and 40 and to make an assessment of the objective seriousness of that particular offence. As to counts 16 and 26, the judge said:

“Count 16 was one of the offences where I found actual knowledge, at least from the point where the victim verbalised her plea that the [respondent] stop. The offending was not associated with particular additional violence of the kind that characterised some of the offending, it was apparently of relatively short duration, but it did cause pain and distress to the victim. Again, I consider this offending to be below the mirdrange on the spectrum of conduct which might be caught by the relevant provision.
Count 26 was another act of forced fellatio. There was a degree of degradation attaching to the conduct in that it proceeded in spite of the victims expressed revulsion in circumstances where there had just been penile/vaginal intercourse. Out of fear for the consequences otherwise, the victim complied reluctantly with what was effectively an order from the [respondent], and she felt “dirty, horrific and disgusting” whilst performing the act. The offending is below the mid-range.” [31] (Emphasis added.)
31. ROS at [15].

His Honour did not make a specific reference to count 9.
The Director contended that the judge’s observation that count 16 did not involve “particular additional violence of the kind that characterised some of the other offending” was of limited utility, as the infliction of actual bodily harm would have constituted a more serious offence. A further argument was that whilst a finding that the offence was of “short duration” was open, the respondent ceased the non-consensual sex not in response to the victim’s distress, but because he had ejaculated. Further, while the duration of the offending was relevant, it is not ordinarily regarded as a factor that reduces the objective seriousness of the offence.
As to count 26, the Director pointed to this offence occurring about 6 months into the marriage and to the victim fellating the respondent, who the judge found knew that she was not consenting and she described feeling “dirty, horrific and disgusting”.
The Director submitted that it was difficult to see how the general observation by his Honour that none of the offences were planned could mitigate an offence that was motivated by the respondent’s desire to dominate and control the victim. The Director submitted that it was well recognised that domestic violence offences were typically not pre-meditated and the absence of planning had little, if any, significance.
The Director submitted that it was unclear how the judge’s unreasonably lenient assessment of the objective seriousness of the offences was affected by the respondent’s age but in the present offending, the absence of a significant age gap between the respondent and the victim was immaterial.
The Director submitted that counts 16 and 26 fell at least within the mid-range.
With respect to count 9, the Director contended that the judge appeared to have overlooked the gravity of the offence. The Director referred to the pursuit of the victim by the respondent and the injuries suffered as a result of the assault.
The Director did not challenge, as amounting to patent error, the judge’s assessment of the objective seriousness of the remaining counts. However, in contending that the respondent’s sentence is manifestly inadequate (Ground 3), the Director submitted that a number of indicative sentences are manifestly inadequate, falling far short of adequately addressing the objective seriousness of the offending.

Consideration

The Director accepted that the assessment of the objective seriousness of an offence is “quintessentially for the sentencing judge”: Mulato v R [2006] NSWCCA 282 (‘Mulato’) per Simpson J at [46]. It has often been stated that it is an evaluative task undertaken by the sentencing judge having regard to a range of factors in the exercise of a broadly based discretion and this Court will be very slow to determine such matters for itself or set aside the sentencing judge’s assessment: Mulato at [37]; Magro v R [2020] NSWCCA 25 (‘Magro’) at [29]; JG v R [2023] NSWCCA 33 at [93].
It must be remembered that in the present case, the respondent’s trial has been by judge alone during which the victim and the respondent gave evidence. The difficulties inherent in this Court intervening with respect to the assessment of objective seriousness of offending are heightened where there has been a trial and the sentencing judge has been able to assess the evidence of a complainant and the offender in the witness box: Baines v R [2016] NSWCCA 132 per Basten JA at [15]; Magro per Gleeson JA at [29]. This must particularly be the case in a judge alone trial where the sentencing judge has delivered comprehensive reasons for his verdicts, which in this case his Honour provided in a sixty page judgment.
Furthermore, his Honour’s sentencing remarks I have summarised and from which various passages have been quoted, are not to be looked at in isolation. At the commencement of his sentencing remarks, his Honour made it clear that the remarks which followed necessarily assumed familiarity with the content of his verdict judgment and an edited version of the Crown case statement which his Honour said were “an important foundation to my assessment of the objective gravity of the offending”. [32]
32. ROS at [20]-[21].
The characterisation of the objective gravity of counts 9, 16 and 26 is reviewable in this Court solely on the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40. As Gleeson JA explained in Magro at [31]:

“The question is whether or not the particular characterisation which the sentencing judge gave to the circumstances of the offence was open to the judge: Mulato v R at [37], [46]-[47]. In order for this Court to interfere with the assessment made by the sentencing judge, error must be demonstrated in accordance with the principles in House v The King: House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40; see also Mulato v R at [46]; Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33 at [67].”

Counts 16 and 26 are offences contrary to s 61I of the Crimes Act. The judge was satisfied beyond reasonable doubt in finding the respondent guilty of count 16 that “from at least the point where the [victim] said ‘no please, please, stop’ that the [respondent] actually knew she was not consenting”. [33]
33. ROS at [4].
In finding the respondent guilty of count 26, his Honour was satisfied beyond reasonable doubt that the victim was not consenting and the respondent actually knew that she was not consenting. [34] His Honour’s assessment that the objective seriousness of these offences fell below the mid-range stands at odds with his earlier statements quoted at [150] above that “it is difficult to escape the conclusion that, viewed only objectively the sexual offences committed with knowledge are reasonably characterised as falling at least towards the middle of the range” and “[t]he balance of the offences are reasonably characterised as falling below the mid-range.”
34. Ingram SC Judgment, p 48.
It is evident that his Honour placed some emphasis on all of the offences being committed spontaneously and being of short duration in his assessment of objective seriousness. All of the offences were domestic violence offences which the judge found “were all rather spontaneous representations of the [respondent’s] perverse perceptions of his marital entitlement”. [35]
35. Ingram SC Judgment, p 54.
How in these circumstances could the lack of planning reduce the objective gravity of the offending? As Adamson J (as her Honour then was) observed in Kennedy v R [2022] NSWCCA 215 at [51]:

“… it is typical of offences of domestic violence committed by persons such as the applicant that they are not “premeditated”. Thus, the lack of planning in this context is of negligible, if any significance.”

This Court has observed that the short duration of a sexual assault would not ordinarily be considered as a factor which mitigates the objective seriousness of the offence: R v Daley [2010] NSWCCA 233 at [48]; Cowling v R [2015] NSWCCA 213 at [16]. In the present case, where the respondent’s sexual offending was a repetitive feature in a violent domestic relationship, the short duration of an offence could not amount to a mitigating factor.
In the passage quoted at [151] above, the judge said that the offending in count 16 “was not associated with particular additional violence of the kind that characterised some of the offending.” It is unclear to which offences his Honour was referring, however, the infliction of actual bodily harm at the time of, or immediately before or after the sexual assault would have amounted to an offence of aggravated sexual assault contrary to s 61J(1) of the Crimes Act.
Count 9 is an offence of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act. Although in his sentencing remarks the judge did not specifically consider this offence, the judge referred to every individual offence being of short duration and being spontaneous. The respondent’s offending in count 9 involved him chasing the victim and punching her to the face with a closed fist. She fell to the ground, losing consciousness. The injuries sustained included a broken nose with blood and chunks coming out of it. She experienced pain in her nose for 7 weeks. Neither the spontaneity of the offence nor its duration could reduce the objective seriousness of count 9. There is no standard non-parole period for a s 59(1) offence. The judge was not obliged to find where this offence lay in relation to a mid-range of objective seriousness: Sivell v R [2009] NSWCCA 286 at [32]; R v Field [2011] NSWCCA 13 at [49]. However, his Honour did.
Notwithstanding the advantage the judge had in characterising the objective seriousness of the offences, in my respectful opinion, the judge acted upon wrong principle and erred in finding that counts 9, 16 and 26 fell below the mid-range. The judge understated the objective seriousness of these offences.
This ground of appeal has been established.

Ground 2: The sentencing judge erred in imposing convictions with no further penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 in relation to Counts 2, 10, 36 and 38

The judge convicted the respondent for the 24 counts for which he had been found guilty. For counts 1, 2, 8, 10, 28, 36 and 38, the judge said that pursuant to s 10A of the CSP Act, he disposed of these proceedings with no other penalty other than conviction.
For the remaining counts, the judge imposed the aggregate sentence which is detailed at [5] above.
The Director’s complaint is that his Honour erred in imposing convictions without further penalty for counts 2, 10, 36 and 38, as these were serious domestic violence offences which warranted sentences of full-time imprisonment. The Director submitted that these sentences should have formed part of the aggregate sentence.
A further complaint was that the judge had overlooked the requirement of s 4A of the CSP Act and did not provide reasons for the sentences imposed for these four counts.
The respondent accepted that this ground of appeal had been made out.

Consideration

Counts 10 and 38 are offences of common assault contrary to s 61 of the Crimes Act; count 36 is an offence of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act; and count 2 is an offence of indecent assault contrary to s 61L of the Crimes Act.
Shortly stated, count 10 involved the respondent repeatedly slamming the victim’s head into the closed passenger side window of the car in an effort to extract an admission from her that she had put her name first on a lease application “on purpose”. Count 36 involved the respondent striking the victim repeatedly on her legs with a rolling pin causing significant bruising. Count 38, which immediately followed the use of the rolling pin, involved the respondent sitting on the victim’s hips and placing a pillow over her head, forcing it into a mattress a number of times. The victim felt like she was choking and feared that she would die if she did not answer the respondent’s demands that she disclose what she was hiding from him. The indecent assault in count 2 involved the respondent kissing the victim so roughly that her lips bled. He then sucked her neck with such force that she was left with bruising.
All of this conduct was motivated by the respondent’s desire to dominate his wife. He used violence in order to instil fear and to control her.
It is convenient to refer to some statements made by this Court, which emphasise the gravity of domestic violence.
In R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551; Wood CJ at CL said at 558 [41]:

“As this Court has confirmed in Glen NSWCCA 19 December 1994, Ross NSWCCA 20 November 1996, Rowe (1996) 89 A Crim R 467, Fahda (1999) NSWCCA 267 and Powell (2000) NSWCCA 108, violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence.” [36]
36. ROS at [10].

In R v Hamid [2006] NSWCCA 302, Johnson J said at [86]:

“In sentencing a domestic violence offender, and in particular a repeat domestic violence offender, specific and general deterrence are important factors, together with the requirement of powerful denunciation by the community of such conduct and the need for protection of the community. Recognition of the harm done to the victim and the community as a result of crimes of domestic violence is important. These principles flow from statements of this Court and are fortified by the enactment of Division 1A of Part 15A of the Crimes Act 1900 including the statutory objects recited in s.562AC.”

More recently, in Yaman v R [2020] NSWCCA 239, Wilson J emphasised the entitlement of women to lead a life of their own choosing. Her Honour said at [135]:

“The right of all women to determine their own path in life must be protected and upheld by the courts. Where a woman’s right is ignored or disregarded by an offender, that right must be vindicated, including by punitive and strongly deterrent sentences where necessary.”

Counts 33 and 34 are offences of sexual intercourse without consent contrary to s 61I of the Crimes Act. The judge assessed the objective seriousness of these offences to be “below but approaching the mid-range”. The respondent’s offending in count 33 involved rough and violent penile-anal intercourse which continued until he ejaculated notwithstanding the victim’s pain and requests to stop. The respondent’s offending in count 34 concerned penile-vaginal intercourse, despite the victim’s protestations that Islamic teaching did not permit women to have sex during menstruation.
In my opinion, the indicative sentences for all of these counts (see [6] above) are manifestly inadequate, notwithstanding the respondent’s subjective case, the principle of totality and the 5% discount.
Count 14 is an offence of attempting to choke with intent to commit an indictable offence (intimidation) contrary to s 37(2) of the Crimes Act. The maximum penalty for the offence is 25 years imprisonment. The respondent placed his foot on the throat and the neck of the victim applying pressure and reducing her air and blood flow. He did so in order to assert his superiority over his wife who described being humiliated and having her life “crushed out" of her. The seriousness of the offence is increased by the respondent stepping on her neck twice. The indicative sentence of 1 year 6 months is manifestly inadequate, notwithstanding the respondent’s subjective case, the principle of totality and the 5% discount.
Counts 16 and 26 have been considered in Ground 1. The indicative sentences for these offences are manifestly inadequate.
The manifest inadequacy of these indicative sentences are a guide to the manifest inadequacy of the aggregate sentence as are the errors established by the Director in Grounds 1 and 2.
In my respectful opinion, the aggregate sentence of 10 years’ imprisonment and the non-parole period of 5 years is plainly unjust as it is so manifestly inadequate that it does not reflect the totality of the criminality involved in the respondent’s offending.
Ground 3 has been established.

The residual discretion

The question remains whether this Court should intervene and re-sentence the respondent. There is a residual discretion to decline to intervene even though the sentence is manifestly inadequate. The Director is obliged to satisfy the Court that the residual discretion should not be exercised: CMB v Attorney General for New South Wales (2015) CLR 346; [2015] HCA 9.
In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, the majority (French CJ, Crennan and Kiefel JJ) observed at [1] that the primary purpose of Crown appeals was to “lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”. Their Honours described the primary purpose of laying down principles as a "limiting purpose" and said at [36]:

“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 discretion.”

Their Honours observed that other circumstances may combine to produce injustice if a Crown appeal is allowed. Their Honours said at [43]:

“They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of the re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.”

Dr Reading’s report dated 17 November 2022

The respondent tendered an updated report from Dr Reading which was submitted to be relevant to the exercise of the residual discretion.
Dr Reading reported that the respondent was transferred on 17 November 2021 to the newly opened 13 Wing mental health step down area in the Long Bay Correctional Complex. He stated that the respondent had adjusted well, was behaviourally settled and compliant with his medication regime, which had remained the same since his previous report. He stated:

“In the context of stress over ongoing court matters relating to historical sexual assault charges that had been made against him by his first wife, Mr Sharrouf experienced a mild relapse of psychotic symptoms with the appearance of occasional background auditory hallucinations. These were low in volume and he was unable to make out what the voices said. They did not cause any distress and he was able to ignore them easily. Given that he was still experienced [sic] mild sedation from his medication, he was reluctant to increase the dose of clozapine further and a decision was made to monitor his symptoms with the hope they settled once court was resolved.” [43]
43. ROS at [61].

Dr Reading confirmed the treating team’s strong support for the respondent’s comprehensive psychiatric rehabilitation at the Forensic Hospital. He stated:

“In consultation with the Forensic Hospital, Mr Sharrouf’s recent custodial sentence has been deemed not to be a barrier to his admission as he can be treated there as a Correctional patient and would be unlikely suitable for discharge prior to eligibility for parole.” [44]

44. Exhibit 1, Second Report of Dr Reading, pg 7.

Submissions

The Director submitted that the respondent’s sentence was so far below the range of sentences that could be justly imposed that allowing such a manifestly inadequate sentence to stand would undermine public confidence in the justice system and the residual discretion should not be exercised.
The Director pointed to other matters that were said to be relevant to the exercise of the residual discretion:

There has been no delay in the institution of the appeal. The grounds of appeal were filed on 2 September 2022 and the amended grounds of appeal were filed on 30 January 2023;

The respondent’s release to parole is not imminent. He is not eligible for release to parole until 30 January 2025; and

In circumstances where the respondent continues to deny the offences and otherwise remains in custody as a forensic patient for unrelated offending, this is not a case where re-sentencing is likely to have an effect on progress towards rehabilitation.

The Director further submitted that if the Court declined to intervene, the errors of principle identified in Ground 2 by the application of s 10A would remain. The Director argued that it was not correct to submit that this case was of little precedential value as lower courts are often required to deal with offenders with significant health issues. The Director submitted that this case provides important guidance as to the proper approach to sentencing offenders, firstly who have committed a large number of offences, and secondly in relation to the proper operation of s 10A, particularly in domestic violence offences.
The respondent submitted that it was not sufficient to establish manifest inadequacy for this Court to proceed to re-sentence, as the Director was obliged to persuade this Court to intervene.
The respondent contended that, having regard to his subjective case, the Director had not established that the aggregate sentence was an affront to the administration of justice.
The respondent submitted that central to the question of the exercise of the discretion was his powerful subjective case. The respondent pointed to his psychiatric condition, his youth and immaturity at the time of the offending, his exposure to domestic violence as a child and the substantial delay between the offending and sentence, all of which called for a significant diminution in the aggregate sentence.
The respondent did not submit that his subjective case was sufficient by itself for the Court not to intervene but contended that his mental health issues made him not an appropriate medium to make an example for others.
The respondent referred at length to Dr Calvin’s reports and contended that the totality of the evidence established, on the balance of probabilities, that his schizophrenia was causally connected to the offending. The respondent pointed to certain features of the evidence that suggested a level of paranoia and disordered thinking that was consistent with the respondent’s psychiatric thinking being operative at the time of the offending, which included his accusations of the victim hiding something; putting her name first on a lease so that she had somewhere to go if they split up; being in love with a friend; and calling her “shaitan” (devil).
The respondent further pointed to his absence of a violent predisposition when he was adequately medicated. All of the evidence of his psychiatric condition was significant enough, it was argued, to justify a diminution in the sentences to be imposed.
The respondent submitted that his offending against his second wife was indicative of the importance of his antipsychotic medication in managing his schizophrenia. The respondent referred to his positive progress made under Dr Reading and the Tribunal.
The respondent contended that the protection of the community was not only served by lengthening his term of imprisonment. The respondent pointed to his ongoing supervision by the Tribunal and the benefits that he will require from supervision upon release to ensure he continues to take his medication and addresses his psychiatric condition.
A further submission was that the prospect of a significantly higher sentence would be crushing, particularly given the evidence that he had a severely depressed mood during his first months in custody and these matters were stressors for him.
The respondent further submitted that the limited purpose of Crown appeals could be achieved by an acknowledgement of the Court that the sentences imposed were wrong and why they were wrong. It was submitted that;

The respondent’s case had very limited precedential value given his unique subjective case, and it is not one in respect of which it can be said that by declining to intervene would perpetuate a manifest injustice;

The respondent was not an appropriate subject to achieve the limited purpose of Crown appeals by having his sentence increased for the same reasons the respondent is not an appropriate subject through which to achieve general deterrence; and

The respondent has made progress towards rehabilitation since he was sentenced.

Consideration

In my opinion, the Director has demonstrated that the residual discretion to decline to intervene should not be exercised. The Director has not contributed to the manifest inadequacy of the sentence nor delayed the appeal. Guidance to judicial officers that may be provided by this decision includes the proper operation of s 10A in domestic violence offences and sentencing for a large number of offences, which includes serious offences of sexual assault against a single victim.
I accept that the respondent is making positive steps towards his rehabilitation under Dr Reading and the Mental Health Review Tribunal, however a custodial sentence is not a barrier to his comprehensive psychiatric rehabilitation at the Forensic Hospital as he can be treated as a Correctional patient. He was second on the waiting list for a Forensic Hospital bed on 2 November 2022. I am of the opinion that the respondent’s psychiatric rehabilitation will not be significantly affected by allowing the Director’s appeal. It is clear that the respondent’s mental condition can be adequately managed within the prison system and that imprisonment will not be a greater burden for him by reason of that condition.
I am satisfied that the aggregate sentence is an affront to the administration of justice and public confidence in the justice system would not be served by allowing such a manifestly inadequate sentence to stand.

Re-sentence

In these reasons, I have emphasised the gravity of the respondent’s offending. Nine of the 24 offences involved serious sexual offending against the victim. Furthermore, he subjected the victim to repetitive acts of domestic violence.
In respect of counts 16 and 26, which were the subject of Ground 1, I assess the objective seriousness of each offence to be in the mid-range. It is sufficient to state that count 9 which has no standard non-parole period is a serious offence. The Director did not challenge the judge’s assessment of objective seriousness for any other offence and I will not change any of those assessments.
I should add that this is not a case where the respondent’s mental health affects the assessment of the objective seriousness of any of the offences: DS v R; DM v R (2022) 109 NSWLR 82 at [96]; [2022] NSWCCA 156.
Although the Director did not complain in Ground 2 about the application of s 10A to counts 1, 8 and 28, these are offences of domestic violence and in the exercise of my sentencing discretion, I consider that the application of s 10A in each count is inappropriate. I will not disturb other sentences indicated by the judge which the Director has not challenged.
The maximum penalty and standard non-parole period for an offence for which I will indicate a different sentence are legislative guideposts to be borne in mind when considering the appropriate penalty, having regard to the objective seriousness of the offence and the subjective circumstances of the respondent: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. The standard non-parole period does not have determinative significance in sentencing the respondent: Muldrock at [31], nor is it a “starting point” for the sentence.
I stated at [209] above that it was open to the judge to find that it was more likely than not that the respondent experienced some psychiatric symptoms during his relationship with the victim and that he was less than fully aware of the consequences of his actions at the time of the offending which served to diminish to some extent his moral culpability and reduced the significance of general deterrence and denunciation. I will adopt these findings on re-sentence.
Nevertheless, I am not satisfied on the balance of probabilities that his schizophrenia had a significant role to play in his offending. The victim’s evidence provided little support for the respondent’s offending being initiated by command type auditory hallucinations, persecutory delusions, or paranoia. The respondent’s evidence was confined to his denial that the offending occurred. In submissions, the respondent pointed to certain features of the evidence which were said to be consistent with his psychiatric condition being operative at the time of the offending. In my view, the matters referred to by the respondent are consistent with his jealousy and desire to control his wife. I give modest weight to the respondent’s mental health at the time of the offences in reducing his moral culpability and the significance of denunciation.
I take into account the respondent’s age and present mental health. He was born on 11 November 1986 and is now 36 years old. When he entered into custody on 4 July 2019, he was highly psychotic. Dr Reading reports that the respondent’s schizophrenia and melancholic depression have responded well to treatment, but he continues to experience some ongoing negative symptoms from his schizophrenia.
The respondent’s mental condition both presently and at the time of the offending reduces the weight that I give to general deterrence. Although the weight to be given to general deterrence has been reduced, the respondent’s mental condition heightens the need for specific deterrence. The serious acts of violence committed against his second wife demonstrate the necessity of the respondent remaining compliant with antipsychotic medication and the directions of his treating psychiatrist.
An unusual feature of the evidence before the judge of the respondent’s background is that Dr Calvin reported that the respondent said “that he had a reasonable childhood”, which is to be contrasted with the letters of support from the respondent’s mother and brother. I stated at [211] above that it was open to the judge to find that the respondent’s exposure to domestic violence as a child reduced the respondent’s moral culpability. As that finding was not challenged on appeal, I will adopt it on re-sentence.
As to the other matters in the respondent’s subjective case to which I have not referred and that were not challenged on appeal, I intend to adopt them. [45]
45. Exhibit 1, Second Report of Dr Reading, pg 10.
Furthermore, the 5% discount for facilitating the administration of justice will be allowed on re-sentence.
The positive steps that he has taken to understand and control his psychiatric issues have been demonstrated by his compliance with his medication and co-operation with Dr Reading. As to his prospects of rehabilitation, much will depend on his continuing co-operation with Dr Reading and compliance with taking prescribed medication upon release.
I find that special circumstances exist that justify a variation in the statutory ratio between the non-parole period and the balance of the term of the sentence, being the time he has spent in custody during the COVID-19 pandemic and his need for ongoing specialist care and follow up in the community for his mental condition upon release.
In assessing the indicative sentences, I have fixed an appropriate sentence for each offence and considered questions of concurrence and totality. The following table discloses the sentences that would have been imposed but for the aggregate sentence after the 5% discount has been applied: s 53A(2)(b) of the CSP Act.

Count	Indicative sentence after 5% discount (round figures)	Non-parole period
1	1 month	-
2	4 months	-
4	3 years	1 year 10 months
5	5 years	3 years
8	6 months	-
9	1 year 6 months	-
10	1 year 6 months	-
12	3 years	1 year 10 months
13	3 months	-
14	2 years 6 months	-
16	3 years 6 months	2 years 1 month
19	1 month	-
20	2 months	-
21	9 months	-
22	9 months	-
23	9 months	-
26	3 years 6 months	2 years 1 month
27	3 years 3 months	1 year 11 months
28	6 months	-
33	3 years	1 year 10 months
34	3 years	1 year 10 months
36	1 year 6 months	-
38	6 months	-
40	3 years	1 year 10 months

Accordingly, I propose the following orders:

Director’s appeal allowed.

The aggregate sentence imposed by Whitford SC DCJ in the District Court of New South Wales on 5 August 2022 is quashed.

In lieu thereof, the respondent is sentenced to an aggregate term of 14 years’ imprisonment consisting of a non-parole period of 9 years commencing on 31 January 2020 and expiring on 30 January 2029 with a balance of term of 5 years commencing on 31 January 2029 and expiring on 30 January 2034.

The earliest date that the respondent will be eligible to be released on parole is 31 January 2029.

WILSON J: I have had the advantage of reading in draft the judgment of Price J, with which I agree. I have also had the benefit of reading the judgment of Dhanji J.
I share the conclusion of the Presiding Judge that the sentence imposed upon the respondent at first instance was manifestly inadequate. It comprehensively failed to reflect the gravity of a serious and sustained course of domestic violence against a young woman, violence that included 8 sexual assaults, an aggravated sexual assault, an offence of attempted choking with intent, and multiple assaults. The sentence also failed comprehensively to give effect to the very important principle given by the High Court in Munda v State of Western Australia, cited above at [186] by the Presiding Judge.

This is not a matter in which the residual discretion should be exercised. The courts must ensure that those who seek to brutally dominate a domestic partner, and violently impose a claimed gender superiority on another, are held to account. The aggregate sentence proposed by Price J is one that achieves that aim, whilst giving proper ameliorative weight to the respondent’s subjective case.
There is some divergence between the respective judgments of Price J and Dhanji J as to the relevance of the respondent’s youth at the time of this serious offending. My view on that issue echoes that of the Presiding Judge. The relevance of youth to sentence is a factor of diminishing relevance as distance from the years of childhood increases. The respondent was not a child; he was mature enough to marry in a religious ceremony and live an adult life, features pointing to a degree of maturity. The offences themselves, committed as they were over a protracted period, were the offences of an adult; a married man determined to enforce his will upon his wife through means of violence and intimidation. There is nothing about his crimes suggestive of the immaturity or irresponsibility of youth. Further, where offences committed by a younger person are gravely serious, as here, the requirement for retribution and denunciation to feature strongly in the sentence is less likely to be significantly diminished by the weight to be given to considerations of rehabilitation: IE v R (2008) 183 A Crim R 150 at [16]; MJ v R [2010] NSWCCA 52 at [37]–[39]; and JT v R [2011] NSWCCA 128 at [34]–[35]. That principle operates in the respondent’s case. The sentence proposed by Price J is one considerably ameliorated by the respondent’s mental health issues. It also allows for an extended period of supervised liberty to assist the respondent’s rehabilitation and reintegration into the community. Any greater reduction in sentence to reflect the subjective case would fail to uphold the principle already referred to from Munda. It should not be necessary for this Court to state and restate that a woman’s life, safety and right to self-determination are things of value which must be upheld and protected by the law. Absent that, our whole society is diminished.
I agree with the orders proposed by Price J, and I endorse the reasons his Honour has given.
DHANJI J: In this matter I have had the benefit of reading the reasons of Price J in draft form. Wilson J agrees with his Honour. In the light of their Honours forming a majority, my own reasons can be stated with brevity.
I agree with Price J for the reasons his Honour gives, that, in relation to the offences dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the imposition of a conviction with no further penalty was in error. I also agree that the aggregate sentence imposed at first instance in relation to the remaining counts was manifestly inadequate. Thus, I agree that the Director has established grounds 2 and 3 of the appeal.
In the above circumstances, I would prefer not to state a concluded view as to ground 1. In that regard, I would simply note my view that while the findings of objective gravity for counts 9, 16, and 26 were certainly lenient, having regard to the nature of the review and the inherent imprecision with respect to terms such as “below mid-range” and “at least towards the middle of the range”, it is not immediately clear to me that the sentencing judge was in error: see Lee v R [2023] NSWCCA 70 at [37]; JG v R [2023] NSWCCA 33 at [94]-[103]; Yeung v R [2018] NSWCCA 52 at [24]. In this respect, again noting the imprecision in the nomenclature and corresponding bandwidth usually engaged around identification of objective gravity, I would not necessarily accept that a finding that an offence is “at least towards the middle of the range” is inconsistent with it being “below mid-range”. I am additionally mindful of the sentencing judge’s determination having been made in an adversarial context in which he recorded the respondent had submitted “in a global way” that the offending conduct fell below the mid-range of objective seriousness but that “neither party descended to assistance by way of submissions concerning the objective gravity of individual offences”. Before leaving this ground I would also note, lest silence on the issue suggest otherwise, the sentencing judge was not obliged to assess the objective seriousness of the offences by reference to their relationship with a notional mid-point: see DH v R [2022] NSWCCA 200 at [58]-[60]; Kochai v R [2023] NSWCCA 116 at [47]-[51].
Having established grounds 2 and 3, I am, essentially for the reasons given by Price J, also of the view that, notwithstanding the existence of the discretion and the force of the argument on the respondent’s behalf, the Director has established that this Court should intervene to resentence the respondent. It is at this point that I diverge from the view of the majority.
In passing sentence on the respondent, the sentencing judge recorded the prosecution’s observation that “sentencing this offender represents a difficult and complex sentencing exercise”, describing it as “a delightfully understated submission”. His Honour’s observation cannot be gainsaid. While the presence of factors pulling in different directions is a common enough, and perhaps inevitable, phenomena in determining sentence, in the present case competing factors tugged at the result with considerable and irreconcilable force. No doubt my departure from the view of the majority is at least in part a reflection of this.
I accept the objective gravity of the offences. However, unlike Price J, I would not find that “the respondent’s relative youth did not in any way mitigate his repetitive violent offending” (per Price J at [213]). I would give greater weight to the respondent’s youth.
The sentencing judge described the fact that the offender and the victim were both very young as a “salient feature of all the offending”, noting the “marriage” took place when the offender was 20. The sentencing judge later observed that “[a]ll of the offences were committed by a young, immature individual”. In acknowledging the substantial role for general deterrence with respect to offences of domestic violence, particularly where such violence is sustained over time, his Honour noted that the weight to be given to this consideration was “diminished to some extent” by the psychiatric compromise of the offender, the substantial delay between the offences and their resolution, and, significantly for present purposes, “the youth and immaturity of the offender at the relevant time”. His Honour later made reference to aspects of the respondent’s offending behaviour being consistent with the presence of his later diagnosed schizophrenia and observed that “whether on that account, or on account of his youth and immaturity, or the developmental normalisation of controlling, violent domestic behaviour, it seems to me reasonably open to conclude … that it is more likely than not that the offender was less than fully aware of the consequences of his actions at the time of the offending”.
The sentencing judge’s findings to which I have referred above, were not challenged on this appeal. I would, on this basis, adopt them. I would, in any event, independently come to the same view. I accept that the respondent’s youth and immaturity was interwoven with his background including his exposure to domestic violence and these matters, in turn, need to be understood as part of the consideration of the instinctive synthesis of all relevant factors. Given my acceptance of the role of the respondent’s immaturity, while I can accept that he would have been aware of the infliction of “pain, harm and indignity” (per Price J at [213]), I would not accept that he had the maturity to appreciate, in the way a person of greater maturity should, the full extent of the wrongfulness of his actions and the consequent harm to his victim. Having regard to his background and corresponding immaturity, his lack of appreciation of the gravity of his actions was unlikely to be remedied by the repetition of offending behaviour. As the High Court observed in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (at [43]), childhood deprivation or exposure to violence “may compromise the person’s capacity to mature and to learn from experience”.
I would also be circumspect in placing additional weight on specific deterrence. Had the respondent been sentenced closer to the time of the offences, his age would have required weight to be given to rehabilitation. By the time he came to be sentenced, the respondent was some years older. One way in which delay is commonly taken into account is to establish (if it be the case) demonstrated progress towards rehabilitation. Had the respondent’s history subsequent to the offending been more straightforward, the combination of his youth at the time of the offending and his demonstrated progress since would have likely required that significant weight be given to rehabilitation. As it was, between the commission of the current offences and his sentencing, the respondent had committed further serious acts of violence, but with respect to which Ingram SC DCJ entered special verdicts of not guilty on the grounds of mental illness. The respondent otherwise had no meaningful record. That record consisted of driving matters, an offence of having custody of a knife in a public place (which was dismissed with a caution) when he was aged 16, and offences of resisting an officer in the execution of his duty and failing to appear when he was aged 20. While the fact of the matters before Ingram DCJ, despite the absence of conviction, might be informative of potential dangerousness, it is a dangerousness resulting not from any willingness or determination to commit criminal offences but from the respondent withdrawing from medication. Any concerns raised by the matters before Ingram DCJ are thus different to the concerns raised by the present offences.
It is, to my mind, also significant that at the time of the present offences, the respondent had no meaningful record. He similarly had no meaningful record at the time he withdrew from medication leading to the matters dealt with by Ingram DCJ. In those circumstances, where the respondent had suffered neither the disapprobation of conviction, at least for serious offences, and had not been exposed to the serious potential consequences of withdrawing from his psychiatric medication, I do not regard it as appropriate to give weight to specific deterrence beyond that achieved by any sentence that must necessarily be imposed.
Giving greater weight to rehabilitation and less weight to specific deterrence, I would impose a sentence somewhat less than that proposed by Price J. However, given that mine is a minority view, it is unnecessary to articulate that sentence.

**********

Endnotes

Amendments

16 June 2023 - paragraph numbering

Decision last updated: 16 June 2023

Medium Neutral Citation:	R v Sharrouf [2023] NSWCCA 137
Hearing dates:	22 February 2023
Date of orders:	16 June 2023
Decision date:	16 June 2023
Before:	Price J at [1] Wilson J at [267] Dhanji J at [272]
Decision:	(1) Director’s appeal allowed. (2) The aggregate sentence imposed by Whitford SC DCJ in the District Court of New South Wales on 5 August 2022 is quashed. (3) In lieu thereof, the respondent is sentenced to an aggregate term of 14 years’ imprisonment consisting of a non-parole period of 9 years commencing on 31 January 2020 and expiring on 30 January 2029 with a balance term of 5 years commencing on 31 January 2029 and expiring on 30 January 2034. (4) The earliest date that the respondent will be eligible for parole is 31 January 2029.
Catchwords:	CRIMINAL LAW – Crown appeal – domestic violence and sexual assault offences – single victim married to respondent – whether sentencing judge erred in assessment of objective seriousness – whether spontaneity and short duration of offending mitigating factors – whether relative youth a mitigating factor – whether sentencing judge erred in imposing convictions with no further penalty – s 10A of the Crimes (Sentencing Procedure) Act 1999 considered – whether aggregate sentence manifestly inadequate – whether indicative sentences manifestly inadequate – notional accumulation and concurrence – totality – diagnosis of schizophrenia – whether respondent’s mental health moderated moral culpability, general deterrence and denunciation – residual discretion – whether Court should intervene – re-sentence
Legislation Cited:	Crimes Act 1900 (NSW) ss 33B, 37, 59, 61, 61I, 61J, 61L Crimes and Courts Legislation Amendment Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 4A,10A Criminal Appeal Act 1912 (NSW) s 5D
Cases Cited:	Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33 Baines v R [2016] NSWCCA 132 BP v R [2010] NSWCCA 159 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cherry v R [2017] NSWCCA 150 CMB v Attorney General of NSW (2015) 256 CLR 346; [2015] HCA 9; 89 AJLR 407; 243 A Crim R 282 Cowling v R [2015] NSWCCA 213 DS v R; DM v R 109 (2022) NSWLR 82; [2022] NSWCCA 156 DH v R [2022] NSWCCA 200 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; 86 ALJR 36; 214 A Crim R 152 House v The King (1936) 55 CLR 499 IE v R (2008) 183 A Crim R 150 JG v R [2023] NSWCCA 33 JT v R [2011] NSWCCA 128 Kennedy v R [2022] NSWCCA 215 Kerr v R [2016] NSWCCA 218 Kochai v R [2023] NSWCCA 116 Lee v R [2023] NSWCCA 70 Magro v R [2020] NSWCCA 25 Mill v The Queen (1988) 166 CLR 59 MJ v R [2010] NSWCCA 52 Mulato v R [2006] NSWCCA 282 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 Nguyen v R [2007] NSWCCA 14 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Postiglione v The Queen (1997) 189 CLR 295; 98 A Crim R 134; [1997] HCA 26 R v Barker [2016] NSWCCA 193 R v BWS [2007] NSWCCA 59 R v Daley [2010] NSWCCA 233 R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551 R v Field [2011] NSWCCA 13 R v Hamid [2006] NSWCCA 302 R v Hill [2020] NSWCCA 197 R v Kilic (2016) 91 ALJR 131; [2016] HCA 48 R v McNaughten [1843] 8 E. R. 718 R v Smith [2006] NSWCCA 353 R v Tuala [2015] NSWCCA 8 Sivell v R [2009] NSWCCA 286 Yaman v R [2020] NSWCCA 239 Yeung v R [2018] NSWCCA 52
Category:	Principal judgment
Parties:	Rex (Applicant) Arken Abdull Sharrouf (Respondent)
Representation:	Counsel: M Millward (Applicant) G Huxley (Respondent) Solicitors: Office of the Director of Public Prosecutions NSW (Applicant) Matouk Joyner Lawyers (Respondent)
File Number(s):	2020/31988
Publication restriction:	Statutory restrictions apply – s 578A Crimes Act 1900 (NSW)
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: Nil Date of Decision: 05 August 2022 Before: Whitford SC DCJ File Number(s): 2020/31988