R v Stephens

[2024] NSWCCA 170

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Stephens [2024] NSWCCA 170

Hearing dates:

24 May 2024

Date of orders:

11 September 2024

Decision date:

11 September 2024

Before:

Harrison CJ at CL at [1];
Hamill J at [2];
Chen J at [34]

Decision:

(1) Allow the appeal.

(2) Quash the sentence imposed on the respondent on 1 December 2023 and in lieu thereof impose an aggregate sentence of imprisonment of 6 years, with a non-parole period of 4 years, commencing 29 November 2023. The respondent will become eligible to be released on parole on 28 November 2027. The sentence will expire on 28 November 2029.

(3) Order, pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), that the offences be recorded on the respondent’s criminal record as domestic violence offences.

Catchwords:

CRIME – Appeals – Appeal against sentence – By Crown against inadequacy – Where respondent has pleaded guilty to 14 domestic violence offences against former de-facto partner – Where sentencing judge made guarded findings regarding the respondent’s prospects of rehabilitation – Whether sentencing judge paid sufficient regard to the sentencing principles of specific deterrence and community protection - Whether sentencing judge engaged in “double counting” in regard to the promotion of the respondent’s prospects of rehabilitation – Manifestly inadequate sentence established – Respondent resentenced

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Procedure Act 1986 (NSW)

Cases Cited:

AB v The Queen (1999) 198 CLR 111; [1999] HCA 46

Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413

AM v R [2024] NSWCCA 26

Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Barbaro v The Queen [2012] VSCA 288; (2012) 226 A Crim R 354

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25

Blackett v R [2021] NSWCCA 210

BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379

Brzozowski v R [2023] NSWCCA 129

Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18

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

Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41

Carr v R [2024] NSWCCA 103

Carroll v The Queen (2009) 254 CLR 259; [2009] HCA 13

Cherry v R [2017] NSWCCA 150

CMB v Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9

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

Director of Public Prosecutions (NSW) v Darcy-Shillingsworth [2017] NSWCCA 224; (2017) 269 A Crim R 40

Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81

DL v The Queen (2018) 265 CLR 215; [2018] HCA 32

FL v R [2020] NSWCCA 114

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

Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39

Habambo v R [2023] NSWCCA 328

HCA 37

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485

JA v R [2021] NSWCCA 10

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

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

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

Kresovicv R [2018] NSWCCA 37

KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571

Ladas v R [2022] NSWCCA 160

LN v R [2020] NSWCCA 131

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Masters v R [2019] NSWCCA 233

Miller v R [2015] NSWCCA 86

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17

Power v The Queen (1974) 131 CLR 623; [1974] HCA 26

PW v R [2019] NSWCCA 298

R v AA [2017] NSWCCA 84

R v Campbell [2014] NSWCCA 102

R v Dunn [2004] NSWCCA 41; (2004) 144 A Crim R 180

R v DW [2012] NSWCCA 66

R v Edigarov [2001] NSWCCA 436; (2001) 125 A Crim R 551

R v Elliott and Blessington (2006) 68 NSWLR 1; [2006] NSWCCA 305

R v Fidow [2004] NSWCCA 172

R v GWM [2012] NSWCCA 240

R v Hallocoglu (1992) 29 NSWLR 67

R v Hamid [2006] NSWCCA 302

R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451

R v Holder [1983] 3 NSWLR 245R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49

R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481

R v Moffitt (1990) 20 NSWLR 114

R v Pham (2015) 256 CLR 550; [2015] HCA 39

R v Sharrouf [2023] NSWCCA 137

R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534

R v Slade [2005] 2 NZLR 526

R v Van Ryn [2016] NSWCCA 1

R v West [2014] NSWCCA 250

R v Windle [2012] NSWCCA 222

R v Woodland [2007] NSWCCA 29; (2007) 48 MVR 360

Ragg v R [2022] NSWCCA 150

Regina v Barakat [2004] NSWCCA 201

RO v R [2019] NSWCCA 183

Samandi v R [2020] NSWCCA 217

Stojanovski v R [2013] NSWCCA 334

TM v R [2023] NSWCCA 185

Turnbull v R [2019] NSWCCA 97

Yaman v R [2020] NSWCCA 239

Category:

Principal judgment

Parties:

Rex (Applicant)
Connor Stephens (Respondent)

Representation:

Counsel:
G Newton SC (Applicant)
R Rodger (Respondent)

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

File Number(s):

2020/298354 & 2021/321023

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

N/A

Date of Decision:

1 December 2023

Before:

Gartelmann SC DCJ

File Number(s):

2020/298354 & 2021/321023

HEADNOTE

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

Pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), the Crown appeals against the sentence imposed on Connor Stephens (‘the respondent’) by Gartelmann SC DCJ (‘the sentencing judge’). The respondent pleaded guilty to 14 domestic violence offences committed against his former de facto partner over a nearly two-year period, as follows:

1. seven counts of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act 1900 (NSW) – an offence that carries a maximum penalty of 5 years imprisonment;

2. two counts of being armed with intent to commit an indictable offence, contrary to s 114(1)(a) of the Crimes Act – an offence that carries a maximum penalty of 7 years imprisonment; and

3. five counts of intentionally choke without consent, contrary to s 37(1A) of the Crimes Act – an offence that carries a maximum penalty of 5 years imprisonment.

On 1 December 2023, the respondent was sentenced to an aggregate term of imprisonment of 4 years and 6 months, with a non-parole period of 2 years and 3 months. The non-parole period expires on 28 February 2026, and the sentence on 28 May 2028.

The sole ground of appeal brought by the Crown was that the sentence imposed was manifestly inadequate.

The Court (Harrison CJ at CL, Hamill and Chen JJ) allowing the appeal, quashing the sentence and proceeding to resentence the respondent, held:

Per Chen J (Harrison CJ at CL agreeing; Hamill J agreeing generally):

1. A conclusion that a sentence is manifestly inadequate does not depend upon attribution of identified specific error in the reasoning of the sentencing judge: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]. The Crown, nonetheless, advanced a number of contentions, singularly and cumulatively, as the basis for an inference that the sentencing discretion miscarried, producing a manifestly inadequate sentence (at [155]-[158]).

2. With specific reference to the indicative sentences imposed for counts 18 and 19, the indicative sentences imposed are lenient, when considering the findings of objective seriousness made by the sentencing judge and the fact that there was nothing in the respondent’s subjective case, based on the findings of the sentencing judge, that demanded such leniency. The imposition of less severe indicative sentences called for a greater degree of accumulation in order to reflect the respondent’s total criminality, which was not demonstrated in the aggregate sentence imposed by the sentencing judge. This supports an inference of undisclosed error in the application of the principle of totality and a manifestly inadequate sentence (at [161]-[172]).

3. The findings of the sentencing judge pay insufficient regard to the importance that specific deterrence and community protection play in sentencing for domestic violence offending, as dictated by extensive authority of this Court. Where there has been no favourable finding about remorse or significant insight into the behaviour which led to the offending, specific deterrence should be a significant consideration. This further supported an inference that there has been undisclosed, but definite, error resulting in a manifestly inadequate sentence (at [173]-[182]).

4. From the structure of the sentencing judge’s reasons, it is not apparent that his Honour factored his finding regarding the respondent’s lack of remorse into his assessment of, and finding about, rehabilitation. Nor is it apparent that he considered this matter when dealing with specific deterrence (at [187]-[188]).

5. The finding of special circumstances based on the need for supervision, which resulted in a reduction of the statutory ratio from 75% to 50%, is an exceedingly generous one, given the sentencing judge’s findings that there were “concerns” regarding the respondent’s prospects of rehabilitation and that there was no evidence to support a finding of remorse. There is also a degree of double counting in the sentencing judge’s use of the promotion of the respondent’s rehabilitation when fixing the aggregate sentence and as a basis for a finding of special circumstances. The finding of special circumstances and the ratio fixed by the sentencing judge points to latent, but definite, error in the sentencing exercise and further reduced what was already a manifestly inadequate aggregate sentence (at [190]-[199]).

6. The sentence imposed by the sentencing judge was “unreasonable or plainly unjust” (House v The King (1936) 55 CLR 499, 505). Given that the Crown has negated any reason why the residual discretion of the Court not to interfere should be exercised, appellate intervention is required (at [208]-[218]).

7. Proceeding on the basis of the findings made by the sentencing judge, the respondent is sentenced to an aggregate term of imprisonment of 6 years, with a non-parole period of 4 years, commencing 29 November 2023. The respondent will become eligible for release to parole on 28 November 2027 and the sentence will expire on 28 November 2029.

Per Hamill J (agreeing with the orders proposed and broadly with the reasons given by Chen J, with the exception of the following):

1. The sentencing judge’s finding that personal deterrence was “not irrelevant” but did not “warrant special weight” must be understood within the context of the circumspect submission made by the Prosecution on sentence. Furthermore, the relevant passages of the sentencing judge which addressed personal deterrence were orthodox, and did not suggest that personal deterrence and denunciation were not significant when sentencing for domestic violence offences (at [5]-[11]).

2. In considering the indicative sentences nominated by the sentencing judge, there is no identifiable “mid-point of the maximum penalty”. A sentence of full-time imprisonment is not the only penalty that can be imposed for the offences for which the respondent was sentenced, and is a sentencing option of last resort. This is amply borne out in the statistics maintained by the Judicial Commission which demonstrate that offenders under ss 37(1A) and 59 of the Crimes Act often receive a penalty other than full-time imprisonment in both the Local and District Court (at [12]-[14]).

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 applied.

3. There is no bright line in relation to youth in the context of sentencing and there is ample authority to the effect that the development of emotional maturity and impulse control continues into early adulthood (at [19]-[20]).

BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 applied.

4. There was no double counting of the subjective factors. Matters relevant to the aggregate sentence were also relevant to an assessment of the appropriate non-parole period (at [22]-[23]).

Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 discussed.

5. His Honour’s finding as to the respondent’s prospects of rehabilitation was suitably guarded and nuanced. The fact that a sentencing judge does not find remorse is obviously relevant to the question of rehabilitation, but not determinative of it. This is especially the case where, as here, the offender is young (at [18]).

6. While the sentencing judge did not fall into any specific legal error, the combination of some lenient indicative sentences and a limited amount of notional accumulation led to the imposition of an aggregate sentence that did not reflect the seriousness of the offending, the need for deterrence in this kind of case, or vindicate sufficiently the dignity of the victim (at [28]-[33]).

JUDGMENT

1. HARRISON CJ at CL: I have had the considerable benefit of reading in draft the judgments of Hamill J and Chen J.  I agree with the orders proposed by Chen J for the thorough and comprehensive reasons he has given.  To the extent that there may be differences in emphasis between these judgments in some respects, they should not be permitted to detract from the fact that this Court is unanimous in concluding that the sentence below was manifestly inadequate and that it should be quashed and a new sentence imposed.

2. HAMILL J: I have had the considerable advantage of reading the judgment of Chen J. I am grateful for his Honour’s comprehensive summary of the facts of this appeal and his survey of the legal issues it raises. I agree with the orders proposed by Chen J, generally for the reasons his Honour provides.

3. However, I make the following observations lest it be understood that Judge Gartelmann SC fell into any specific or identifiable legal error. His Honour did not do so. I am unable to accept those of the appellant’s submissions that infer legal error in his Honour’s approach to a difficult sentencing exercise while not raising those matters as a ground of appeal. Having heard the case on 1 December 2023, his Honour sentenced Mr Stephens later that day. In doing so, he delivered a comprehensive and legally correct sentencing judgment. Due to the punishing caseloads they face each day, District Court judges do not often have the luxury of reserving sentencing judgments for lengthy periods. The language employed in complex sentencing judgments delivered shortly after hearing submissions must be considered in that context.

4. Due to my agreement with the orders proposed by Chen J, and my broad agreement with what his Honour has written, I can limit my remarks to three aspects of the appeal.

Personal deterrence

5. The appellant’s criticisms of the sentencing judgment based on his findings as to the significance of personal deterrence must be considered in the context in which his Honour’s observations were made, the arguments presented by the Prosecutor at first instance, and the absence of a ground of appeal asserting any specific error.

6. In Carroll v The Queen (2009) 254 CLR 259; [2009] HCA 13, the High Court at [8] emphasised the difference between the kind of error alleged by the appellant in this appeal (that is, manifest inadequacy) and an assertion of specific error:

“The particular principle which the Director sought to invoke in his appeal to the Court of Criminal Appeal against the sentence passed upon the present appellant was the last category of case identified in the well-known classification stated in House v The King:

‘It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’

The Director’s allegation in his notice of appeal to the Court of Criminal Appeal, that the sentence passed was ‘manifestly inadequate’, was an allegation of this kind of error. It was not an allegation that the primary judge had acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect her, had mistaken the facts or had not taken into account some material consideration. If a case of specific error of any of those kinds was to be made it would have been necessary to identify the asserted error in the grounds of appeal. But as indicated at the outset, no case of specific error was alleged; the sole ground of appeal was manifest inadequacy of sentence.”

[My emphasis. Footnotes omitted].

7. None of the authorities referred to by Chen J at [175] was referred to in the Prosecutor’s written submissions in the District Court. The Prosecutor referred to R v Dunn [2004] NSWCCA 41; (2004) 144 A Crim R 180 where Adams J emphasised the significance of “general and personal deterrence”. Moreover, the Prosecutor’s written submissions included:

“In light of the offender’s subjective case, it is open to the Court to find that his moral culpability for the offending is reduced to some degree. Even if that finding is made, considerations of general and specific deterrence are not rendered completely irrelevant. The Crown submits that any reduction to general and/or specific deterrence would be modest.” [My emphasis.]

8. Considered in the context of those submissions, Judge Gartelmann’s observation that personal deterrence was “not irrelevant” but did not “warrant special weight” appears to be an acceptance of the Prosecutor’s appropriately muted and circumspect submission. I am unable to accept that the remarks sit uneasily with the authority of this Court. There is no doubt that his Honour was aware of the relevant principles and applied them to the individual facts and circumstances of the case. Significantly, they echoed the Prosecutor’s submission that “deterrence was not rendered completely irrelevant”.

9. Finally on this subject, the observation about personal deterrence was made twice. First, it was in reference to the respondent’s criminal antecedence. His Honour said:

“The offender is aged now 25 years. He was aged 20 to 22 years when he committed these offences. He has a record of prior convictions for various offences but not for any serious violent offences such as these. He committed a number of offences of breach apprehended violence order after these but not with acts of violence. He has served a sentence of imprisonment but again not for offences such as these. This record of prior convictions does not warrant leniency as with a first offender but neither does it warrant special weight for specific deterrence or community protection.”

10. The second reference was towards the end of the judgment when his Honour provided an overview of general sentencing principles and the purposes of punishment:

“The sentences to be imposed must fulfil their purposes. General deterrence warrants significant weight in sentencing for domestic violence offences. The offender’s mental condition and dysfunctional upbringing warrant some but limited moderation of that weight in this case. The harm to the victim must all be recognised. The offender’s conduct must be denounced and he must be held accountable and adequately punished for it. His experience of dysfunctional upbringing similarly warrants some, but limited, moderation of the weight for these sentencing purposes. Specific deterrence and community protection are not irrelevant as the offences were repeated and prolonged over a significant period but neither do they warrant special weight, as he has not previously committed any such serious violent offences. Promotion of rehabilitation remains relevant as he retains prospects of it though will require extensive and intensive assistance to achieve it. The further offence on the Form 1 warrants additional weight for retribution and specific deterrence on each count to which one attaches. The seriousness of these offences warrants significant additional weight for these sentencing purposes. Only imprisonment would fulfil all sentencing purposes in these circumstances.”

11. Each of those passages was orthodox. The first reflected well established authority concerning the proper approach to an offender’s past record of offending. The second applied the provisions of s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”) to the facts and circumstances of the case with which his Honour was dealing. Neither suggested that personal deterrence and denunciation were not significant in sentencing in a case involving domestic violence.

The use of the maximum penalty

12. In considering the indicative sentences nominated by the sentencing Judge for counts 18 (assault occasioning actual bodily harm)[1] and 19 (choking without consent)[2] , Chen J refers to the “midpoint of the maximum penalty available for [the] offence” and observes that the indicative sentences (respectively, 1 year and 7 months and 1 year and 10 months) were “appreciably less” than this putative “midpoint”. This assumes the “midpoint” for an offence carrying a maximum penalty of 5 years is 2½ years.

    1. Crimes Act 1900 (NSW), s 59.

    2. Crimes Act 1900 (NSW), s 37(1A).

13. A sentence of full-time imprisonment is not the only penalty that can be imposed for offences of assault occasioning actual bodily harm or choking without consent. It is a sentencing option of last resort and may only be imposed if “no penalty other than imprisonment is appropriate”: Sentencing Act, s 5(1). Where the s 5(1) threshold is crossed, there remains the option of imposing an intensive correction order rather than immediate incarceration: Sentencing Act, s 7. Statistics maintained by the Judicial Commission demonstrate that 37% of offenders dealt with for assault occasioning actual bodily harm in the District Court do not get sent to full-time prison and about 20% do not cross the s 5 “threshold” for imprisonment. In the Local Court, which disposes of the overwhelming number of offences against s 59, less than 20% get sent to gaol full time. In the case of choking without consent against s 37(1A), 20% of offenders dealt with in the District Court received an intensive correction order or a community correction order. In the Local Court, around 74% of offenders received a penalty other than full-time imprisonment.

14. There is no identifiable “mid-point of the maximum penalty”. The maximum penalty is 5 years.

15. Having said that, “careful attention to maximum penalties [is] almost always required” because they invite comparison with the “worst possible case” and, “balanced with all of the other relevant factors”, they provide an important “sentencing yardstick”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [30]-[31]. However, the maximum penalty is not a starting point from which proportional deductions are to be taken: Markarian v The Queen at [32].

16. Approaching the matter in that way, I agree with the substance of Chen J’s analysis. Where the objective gravity was assessed as high, as in the case of counts 18 and 19, indicative sentences of 1 year and 7 months and 1 year and 10 months, seem very lenient when careful attention is paid to the available maximum penalty of 5 years and the other relevant sentencing factors. Having said that, the ultimate question for this court is whether the aggregate sentence is manifestly inadequate. A consideration of the individual indicative sentences may shed light on that question, but the appeal remains directed to the aggregate sentence itself: see the cases cited by Chen J at [164].

Special circumstances, youth, rehabilitation and remorse, and the suggestion of “double counting”

17. The sentencing Judge’s approach to the question of special circumstances under s 44 of the Sentencing Act was principled and his determination to make a substantial adjustment to the “statutory ratio” was within the broad discretion the law reposes in the sentencing Judge. I do not accept the appellant’s suggestion that his Honour engaged in “double counting” or erred in his approach to questions of remorse and rehabilitation.

18. The fact that his Honour was not satisfied that the respondent was remorseful and that there was limited evidence that he accepted responsibility did not mean that the respondent had no prospects of rehabilitation. His Honour’s finding as to the respondent’s prospects was suitably guarded and nuanced. The fact that a sentencing judge does not find remorse is obviously relevant to the question of rehabilitation, but it is not determinative of it. That is especially the case when an offender is young.

19. I am unable to come to the same conclusion as Chen J (at [189]) that a 20 to 22-year-old is not “a young offender” in the context of this complex sentencing exercise. There is no bright line in relation to youth in the context of sentencing, the fact that the couple had a child together has no obvious relevance to the issue, and there is ample authority to the effect that the development of emotional maturity and impulse control continues into early adulthood. For example, in BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379, Hodgson JA said at [5]:

“Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity, and that a ‘child offender’ of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987 (NSW)). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.”

20. See also, for example, R v Slade [2005] 2 NZLR 526 at [43], Miller v R [2015] NSWCCA 86 at [96]-[97], JA v R [2021] NSWCCA 10 at [56] citing R v Elliott and Blessington (2006) 68 NSWLR 1; [2006] NSWCCA 305 (Kirby J, dissenting in the outcome) at [127], TM v R [2023] NSWCCA 185 at [49]-[52] and Carr v R [2024] NSWCCA 103 at [40]-[47].

21. As Chen J acknowledges at [141] and [167], the sentencing Judge found that the offences occurred seemingly impulsively. The Sentencing Assessment report referred to “a pattern of impulsivity” and Ms Dombrowski (psychologist) referred to the respondent’s emotional regulation difficulties and increased impulsivity due to his ADHD.

22. As to the appellant’s suggestion of “double counting”, I would only observe that matters relevant to the aggregate head sentence are also relevant to an assessment of the appropriate non-parole period, although the weight afforded to those factors may be different depending on which component of the sentence is under consideration. This was explained in Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 where Mason CJ and McHugh J (dissenting in the outcome) said at 531:

“Accordingly, although the fixing of a minimum term confers a benefit on the prisoner, it serves the interests of the community rather than those of the prisoner: Attorney-General v. Morgan and Morgan [(1980) 7 A Crim R 146]. In that case Jenkinson J., with whom Kaye J. agreed, pointed out [at p 155] that considerations relevant to the interests of the community which the imprisonment of offenders is designed to serve, as well as circumstances which mitigate punishment, will be taken into account in determining the head sentence and, again, in fixing the minimum term. At that stage the various interests of the community ‘will be balanced against the advantages to the community which release on parole is thought likely in the particular circumstances to confer, and against whatever degree of mitigation mercy to the offender may claim without injustice’.

Once this is accepted, it follows that the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, the weight to be attached to these factors and the way in which they are relevant will differ due to the different purposes behind each function.”

23. Dawson, Toohey and Gaudron JJ note at 537 that the maximum penalty (life imprisonment) was determined by the legislature and held that the sentencing Judge “was unduly influenced by considerations which bear on the fixing of a head sentence rather than on the minimum term”, a proposition the minority did not accept.

24. See also Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39, R v Moffitt (1990) 20 NSWLR 114 at 116, Regina v Barakat [2004] NSWCCA 201 at [30]-[31], R v DW [2012] NSWCCA 66 at [45]-[48] and Masters v R [2019] NSWCCA 233 at [30]. In R v DW, Basten JA explained at [48]:

“In R v Moffitt, Samuels JA, after referring to the reasoning of the High Court in Griffiths v The Queen, stated in relation to the predecessor to s 44: at 116F:

‘In determining whether there are special circumstances justifying a proportionate increase in the additional term the court must consider all the relevant circumstances; that is to say, ... all the factors which the prisoner’s overall situation exhibits and which in combination make the case special and bear upon the suitability of a longer than normal additional term.’”

25. The sentencing Judge did not err in making guarded findings as to the prospects of the respondent’s rehabilitation. It was not incumbent on his Honour to spell out, in what were effectively ex-tempore sentencing remarks, that he had considered the respondent’s lack of insight and remorse in making that assessment. I do not accept that he failed to do so. While some of the evidence presented by the respondent on sentence had its limitations, the respondent presented with good work and family references, a history of employment and had been largely compliant during a previous period on parole. He had at various times suffered from depression and ADHD. The sentencing Judge’s findings were open on the evidence, and it was appropriate to take those matters into account both in determining the appropriate total sentence and in deciding there were special circumstances warranting an adjustment to the proportion between the total sentence and the non-parole period.

Agreement as to the appropriate orders

26. As I said at the outset, I agree with the orders proposed by Chen J.

27. This was an extremely serious example of ongoing and sustained domestic abuse and violence. The agreed facts included several photographs of the injuries the respondent inflicted on his victim over a period of around two years. The offences were committed by a young man with a myriad of personal issues. The impact on the victim was profound. The respondent pleaded guilty at a late stage and demonstrated little insight into his offending and the harm he had caused. His past record of offending disentitled him to very much leniency despite his youth and the fact that he had some prospects of rehabilitation over time. Deterrence, both of the respondent himself and of other like-minded offenders, was an important objective in the sentencing exercise.

28. I agree that the total aggregate sentence was manifestly inadequate. This is, as Chen J explains at [156] by reference to High Court authority, a conclusion that does not depend on a finding of specific error.

29. My conclusion in this case is based on an assessment of the seriousness of the offending, the number of offences and period of time over which they were committed, attention to the maximum penalties, along with a consideration of mitigating circumstances, the sentencing Judge’s uncontested findings, the application of sentencing principles and the purposes of punishment. While I do not accept the sentencing Judge fell into any specific legal error, I am satisfied that the combination of what are, in some instances, lenient indicative sentences combined with the limited amount of notional accumulation, led to the imposition of an aggregate sentence that did not reflect the seriousness of the offending, the need for deterrence in this kind of case, or vindicate sufficiently the dignity of the victim.

30. For the reasons given by Chen J at [214], [216] and [218], I agree that the appellant has discharged its double onus of establishing (i) error in the sentence imposed and (ii) that the Court should not exercise the residual discretion not to intervene.

31. I have no issue with the indicative sentences favoured by Chen J and agree with his Honour’s conclusion that an aggregate sentence of 6 years is appropriate.

32. While I am satisfied there are special circumstances for the same reasons articulated by the sentencing Judge, the non-parole period must also reflect the serious ongoing criminality and reflect the purposes of punishment explained by Judge Gartlemann SC as set out above at [10]: cfPower v The Queen (1974) 131 CLR 623 at 628-629; [1974] HCA 26.

33. I agree that a non-parole period of 4 years is required to reflect the criminality and satisfy the purposes of punishment. The structure of the sentence allows for a period of 2 years where the respondent will have the benefit of ongoing support and supervision to assist him to re-integrate into the community.

34. CHEN J: On 14 September 2022, Connor Stephens (‘the respondent’) was committed to stand trial in the District Court for a number of domestic violence offences against his former de facto partner (‘the victim’), having entered pleas of not guilty in the Burwood Local Court. On 21 October 2022, the respondent was arraigned in the District Court and pleaded not guilty to the 22 counts contained on the indictment. On that day, the matter was fixed for trial on 11 September 2023.

35. On 4 September 2023, seven days before the scheduled commencement of his trial, the respondent pleaded guilty to 14 offences, as follows:

1. seven counts of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act 1900 (NSW) – an offence that carries a maximum penalty of 5 years imprisonment;

2. two counts of being armed with intent to commit an indictable offence, contrary to s 114(1)(a) of the Crimes Act – an offence that carries a maximum penalty of 7 years imprisonment; and

3. five counts of intentionally choke without consent, contrary to s 37(1A) of the Crimes Act – an offence that carries a maximum penalty of 5 years imprisonment.

36. A further seven offences were to be taken into account, when the respondent was sentenced, in accordance with ss 32 and 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘the CSP Act’).

37. The matter was fixed for a sentence hearing on 1 December 2023 before Gartelmann SC DCJ (or ‘the sentencing judge’). On that date, his Honour sentenced the respondent to an aggregate sentence of imprisonment of 4 years and 6 months, with a non-parole period of 2 years and 3 months. The non-parole period expires on 28 February 2026, and the sentence on 28 May 2028.

38. The Crown, pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), appeals against the sentence pronounced by the sentencing judge. It argues, as its sole ground of appeal, that the sentence imposed was manifestly inadequate.

Background

39. The respondent’s offending spanned nearly two years: the first offence occurred on 3 November 2018 and the last on 17 October 2020. As earlier noted, the respondent pleaded guilty to 14 offences and, in relation to 7 offences, admitted his guilt and that offending was placed on a Form 1. In addition to these matters, the respondent admitted to 22 “uncharged acts”.

40. The background matters, which cover the offending and the uncharged acts, are dealt with across four parts: first, a summary of the offending for which there were guilty pleas and offending placed on a Form 1; secondly, an outline of the events leading to the first charges in October 2020; thirdly, a description of the conduct underlying each count and Form 1 offence; and, fourthly, a summary of the interactions between the respondent and the victim that were described in the agreed facts as “uncharged acts”.

41. The matters of background are drawn from the Statement of Agreed Facts upon which the respondent was sentenced (the ‘agreed facts’), and the sentencing judgment. Given the sentencing judgment does not have a medium neutral citation and is in transcript form, the references to the page numbers in that judgment are expressed as J1 etc.

The offending: a summary

42. Guilty pleas were entered to the following counts:

1. assault occasioning actual bodily harm: counts 1, 6, 7, 12, 15, 18 and 22;

2. armed with intent to commit an indictable offence: counts 2 and 4; and

3. intentionally choke without consent: counts 8, 9, 13, 17 and 19.

43. The respondent also admitted his guilt to the following seven further offences, each of which was placed on a Form 1:

1. assault occasioning actual bodily harm: counts 3, 5, 14 and 20;

2. intentionally choke without consent: count 21; and

3. destroy or damage property: sequences 14 and 70.

44. The table below summarises the counts where guilty pleas were entered and where further offending was taken into account on a Form 1 when sentencing for the principal offence:

Count	Date of offending	Offence	Form 1 conduct
2	15 December 2018	Armed with intent to commit an indictable offence, contrary to s 114(1)(a) of the Crimes Act.	Count 3: assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act.
4	27 December 2018	Armed with intent to commit an indictable offence, contrary to s 114(1)(a) of the Crimes Act.	Count 5: assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act.
6	3 January 2019	Assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act.	Sequence 14: destroy or damage property, contrary to s 195(1)(a) of the Crimes Act.
13	22 September 2019	Intentionally choke without consent, contrary to s 37(1A) of the Crimes Act.	Count 14: assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act.
15	7 October 2019	Assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act.	Sequence 70: destroy or damage property, contrary to s 195(1)(a) of the Crimes Act.
19	15 September 2020	Intentionally choke without consent, contrary to s 37(1A) of the Crimes Act.	Count 20: assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act.
22	17 October 2020	Assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act.	Count 21: intentionally choke without consent, contrary to s 37(1A) of the Crimes Act.

45. In addition, before the sentencing judge was a certificate dated 8 September 2022, pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) (‘the CPA’), which recorded that the respondent had been charged with three related offences – as follows:

1. Sequence 14: on 3 January 2019, the respondent did intentionally damage property, namely, the front windscreen of a motor vehicle the property of the victim, contrary to s 195(1)(a) of the Crimes Act. The conduct the subject of this charge occurred in the course of the events that gave rise to count 6.

2. Sequence 44: on 3 May 2019, the respondent did intentionally damage property, namely, the front dashboard of a motor vehicle the property of the victim, contrary to s 195(1)(a) of the Crimes Act.

3. Sequence 70: on 7 October 2019, the respondent did intentionally damage property, namely, the air-conditioning vent of a motor vehicle the property of the victim, contrary to s 195(1)(a) of the Crimes Act. The conduct the subject of this charge occurred in the course of the events that gave rise to count 15.

46. It is necessary to say something about these related offences, and the manner that they were dealt with in the Court below. First, although the certificate dated 8 September 2022 identified three related offences, it would appear that, by agreement between the Crown and the respondent, only two of the related offences (sequence 14 and sequence 70) were dealt with as part of the sentencing of the respondent. Secondly, again by (apparent) agreement between the Crown and the respondent, the sentencing judge was invited to deal with the two related offences not in accordance with the procedures contained within ss 167(2) and 168 of the CPA (the statutory provisions that provide for the manner in which related offences are dealt with following a person’s committal for sentence), but as offences placed on a Form 1 and to be taken into account when dealing with the respondent for the principal offence: ss 32 and 33 of the CSP Act. Consistent with the approach taken by the parties, this is the way in which the sentencing judge dealt with the two related offences (for count 6 and sequence 14: J27; for count 15 and sequence 70: J27-28).

The circumstances leading to the first charge

47. The respondent and victim were previously in a domestic relationship for three years, commencing in 2017 and ending on 17 October 2020 when the respondent was arrested following the events giving rise to count 22 (J1). They share one child together, who was born in June 2020. The offending, and the uncharged acts, occurred between 3 November 2018 and 17 October 2020 when the victim lived with the respondent and his family, and when the victim and the respondent had their own home (J1).

48. At approximately 12:30pm on 17 October 2020, police attended the home of the respondent and the victim after receiving several calls to emergency services. Police spoke with the victim, who was crying and holding her four-month-old child. She told police that she had had a fight with the respondent, during which he had grabbed and pushed her. The victim showed police small lacerations to her chest area, as well as her left wrist/forearm area which was swollen. This gave rise to count 22 on the indictment of assault occasioning actual bodily harm. The respondent was subsequently arrested by police and charged with this offence.

49. On 17 October 2020, police applied for an Apprehended Domestic Violence Order (‘ADVO’) naming the respondent as the defendant, and the victim and their daughter as the Persons in Need of Protection. The ADVO was served on the respondent.

50. The offence that became count 22 on the indictment was listed for hearing in the Local Court.

51. On 13 August 2021, the victim attended Campsie Police Station and provided a written statement about further incidents. She also provided police with multiple photographs, videos and text messages. On 21 September 2021, the victim gave a further written statement to police outlining other offending. Police subsequently charged the respondent in relation to these matters.

52. The hearing of the charge in the Local Court was vacated after the Director of Public Prosecutions decided to elect on all matters.

The offending

Count 1: Assault occasioning actual bodily harm (Incident 1)

53. On 3 November 2018, the victim was living with the respondent and his family. On this occasion, the victim confronted the respondent about his drug use. The argument escalated to an argument with the respondent’s parents. The victim told the respondent to stop talking the way he was and to calm down. The respondent pushed the victim forcefully and, as a result, the victim sustained a bruise.

54. After the victim left the house to go for a walk, a member of the respondent’s family “told her not to come home because of his aggressive state” (J2). The victim received several calls and messages from the respondent. He “was yelling on the phone and engaged in verbal abuse of her” including calling her “cunt, fat bitch and slut”.

Count 2: Armed with intent to commit an indictable offence and Count 3: Assault occasioning actual bodily harm (Form 1 offence) (Incident 2)

55. On 14 December 2018, the respondent and the victim had an argument over the victim attending a work colleague’s farewell function. The respondent did not want the victim to attend as there would be males at the event. The following day, when the victim returned home from work and entered their bedroom, the respondent immediately called her a slut and pushed her around the room into the furniture and a clothing rack. The respondent yelled, “this is the real me, I cut people, I’ll pop 4 Xanax and stab every guy I see if you don’t tell me his name”.

56. The respondent grabbed a knife which was located under his bedside table. The victim described the knife as a ‘fishing knife’ with ten ‘indents’ along the edge of the blade. The respondent pointed the knife at the victim and demanded she tell him the names of the males, or he will “slit [her] and him” (count 2).

57. The respondent dropped the knife on the ground and took hold of the victim’s shirt, pulling her face towards his. He used his other hand to squeeze the victim’s throat. He threatened to kill her and everyone important to her. The victim was terrified.

58. The victim sustained lacerations to her neck, body and face, as well as bruising to her arms and legs. She took a five second video of an injury to her elbow and knee. This conduct gave rise to count 3, being assault occasioning actual bodily harm (attached to count 2 on a Form 1).

Count 4: Armed with intent to commit an indictable offence and Count 5: Assault occasioning actual bodily harm (Form 1 offence) (Incident 3)

59. On 27 December 2018, the respondent and the victim were in their bedroom. The victim woke up to the respondent yelling “slut” and “whore” at her. The respondent made allegations that the victim had cheated on him as he had seen text messages on the victim’s phone from a male friend.

60. The respondent took hold of the victim’s shirt and pulled her towards his face, stating “explain yourself bitch, you’re the one whose been slutting around”. The victim began to cry and she tried to reason with the respondent, but he pushed her away and read out the messages. The respondent informed the victim that he would hurt her and make her feel as though she wished she was dead. The respondent said: “I’ve cut people before, that was my life, I’ll cut him too and make you watch, you’ll see”. The respondent approached the victim and spat in her direction whilst she attempted to leave the bedroom.

61. The respondent took hold of a fishing knife, which he obtained from his bedside table, and threatened to hurt himself if she left the room by pointing the knife at his left arm. This conduct constituted count 4. The respondent followed the victim and threatened to kill her if anyone stood in his way. The victim then left the house.

62. The victim sustained bruising on her arms and body, giving rise to count 5 of assault occasioning actual bodily harm (attached to count 4 on a Form 1). On 2 January 2019, the victim took photographs of some of the injuries she had sustained, and there is a photograph of the bruising on the victim’s body in the agreed facts (agreed facts, p 4).

Count 6: Assault occasioning actual bodily harm and Sequence 14: destroy or damage property (Form 1 offence) (Incident 4)

63. On 3 January 2019, the victim was driving the respondent home from dinner. He became angry and told her to “fuck off”. She changed the radio and he yelled, “who the fuck does this cunt think she is”. She pulled over and attempted to calm him. The respondent threatened the victim to “take them home or it wouldn’t be pretty”. She continued to drive, and he continued to argue angrily with her. She stopped the car at a train station. He punched the dashboard, kicked the inside of the door and tried to damage the handbrake while the victim tried to push him away. This conduct constitutes sequence 14 (destroy or damage property) to be taken into account on a Form 1.

64. The respondent grabbed the victim’s arm and twisted it behind her. He said, “it’s either you or the car who’s copping it”. He pulled her by the hair to the console and punched her in the back which pulled out some of her hair. He pushed her around before slapping her across the face, causing stinging, numbness and welting. She sustained bruising to her body. This conduct constitutes count 6 (assault occasioning actual bodily harm).

65. She told him to get out of the car before she called police. He punched the windscreen three times, causing it to crack in multiple places. There is a photograph of the damaged windscreen in the agreed facts (agreed facts, p 4). He blamed her for the injury to his hand, which had glass in it. She drove him home.

Count 7: Assault occasioning actual bodily harm (Incident 7)

66. On 9 February 2019, the victim and the respondent were at his aunt and grandmother’s home. He was looking through the victim’s phone and saw photographs a male colleague had taken. She saw them and explained to the respondent that this colleague did this on everyone’s phone. The respondent tried to find the victim’s colleague on social media.

67. The victim asked for her phone back. He told her to “shut the fuck up” and said, “tell me his name if you don’t care about him. If you don’t tell me, I’ll go to your work myself and let the cunt know what I think while I slice his neck and tell him it was because of you”. She refused to tell him. He pushed her against the wall while resting his hand on her neck and yelled, “tell me”. He squeezed slightly and threatened to choke her, whilst he taunted her. He used his elbow to hit her arm which caused bruising. He looked away and she went to run. As she did, the respondent threw the phone at her which contacted her arm. This caused pain and bruising. This conduct constitutes count 7.

68. There are photographs in the agreed facts, taken on 9 February 2019, showing bruising on the victim’s arm (agreed facts, p 6).

Count 8: Intentionally choke person without consent (Incident 10)

69. On 9 March 2019, the victim and respondent were being intimate, and they started to have intercourse. She told him she was at the end of her period and still had some discharge. He saw this and accused her of cheating on him and called her a “lying grubby slut”. He demanded to know “who she was cheating with” and said he would make her watch him torture whoever it was. He flipped her onto her back, grabbed her shirt in a fist and pushed his hand up her neck, choking her. She struggled to talk as her airway was blocked. This conduct constitutes count 8.

70. The victim tried to defend herself and sustained multiple scratches as a result. The respondent held her down on the bed by the neck and slapped her across the face and squeezed and pinched her thighs. She told him he was hurting her and to stop touching her. He eventually got off her and stood at the end of the bed, then he grabbed her by the hair and pulled her towards him. He tried to force her to do sexual things and said, “oh you don’t like to be caught out, well go on be a slut for me then, get on your knees bitch”. He squeezed her arms hard and pulled her to the ground as she tried to pull away. He told her she was “scum” and that he was going to make her pay. She sustained scratches to the chest and face that stung, as well as redness and burning from him pulling her.

71. There are photographs in the agreed facts taken on 9 March 2019, or in the days following, showing scratches to the victim’s face and neck and bruising to the victim's arm (agreed facts, p 8).

Count 9: Intentionally choke person without consent (Incident 11)

72. On 12 March 2019, the victim attended her doctor as she was stressed and anxious about her relationship with the respondent. She was prescribed antidepressants. She returned home and the respondent found the medication. He became angry. She told him she had not started the medication and they were just in case she needed them.

73. The victim tried to leave the room, but he took hold of her arm. She tried to shake him off. The respondent grabbed her by the shirt, causing it to rip, and then dragged her through the doorway. Her body hit the door handle. He put his hand around her neck and pressed his fingers and thumb into it, which caused her to feel like she could not breathe properly. This conduct constitutes count 9.

74. The respondent told the victim, “how dare she blame him for feeling down” and stated that, “she only wanted attention”. He threw the medication in the bin and told her not to take anything from doctors as it would make her crazy. She had a sore throat and bruises to her neck, chest and hip. On 19 March 2019, the victim went back to her doctor and said the respondent got angry when he found the medication. The doctor made a note to this effect.

75. There are photographs in the agreed facts taken on 13 March 2019 showing bruising to the victim’s neck and arm (agreed facts, p 9).

Count 12: Assault occasioning actual bodily harm (Incident 19)

76. On 21 June 2019, the respondent came home drunk at around 3:00am. He woke the victim up and demanded she get him a bucket so he could vomit. She told him to go to the bathroom, but he refused and vomited in the bedroom into his shoes. Later in the morning, the respondent was moving the shoes and said, “you’re so lucky you’re a female, you’d be dead if you were a guy”. He demanded she clean his shoes, but she refused and remained in bed. He pulled her hair while yelling, “fucking bitch”.

77. He grabbed her arm, squeezed it hard and forced his head up against hers as he said, “you ask for it you smart ass bitch”. She tried to move away from him, but he held her tighter and punched her in the arms and stomach. He eventually let her go and said, “you ruin everyday and weekend on purpose you fat cunt”. She went to have a shower then returned to bed. He was not there.

78. About 30 minutes later, the respondent came into the bedroom and got into bed. He asked her to move over and kicked her in the back and legs, causing her to fall out of bed. She tried to get back into bed but was kicked again. She then lay on the floor and tried to sleep. She had scratches over her body, face and arms, bruises over her arms, stomach and back and she was in pain. This conduct constitutes count 12 (assault occasioning actual bodily harm).

79. There are photographs in the agreed facts taken on 21 June 2019 showing bruising and scratches to the victim’s arm and neck (agreed facts, p 13).

Count 13: Intentionally choke person without consent and Count 14: Assault occasioning actual bodily harm (Form 1 offence) (Incident 23)

80. On 22 September 2019, the victim and the respondent were in their bedroom. They had an argument about her social media as males had requested to be her friend. She was lying on the bed. He kicked both her legs and back. He pulled her shirt upwards so that it was around her neck and pulled it tightly, causing her to choke. She could not breathe and felt scared as she believed she could not get out of the room. This conduct constitutes count 13.

81. The respondent hit the victim across the face, which caused cuts to her tongue and mouth. There is a photograph, taken on 23 September 2019, contained within the agreed facts showing the cuts to the side of the victim’s face and tongue (agreed facts, p 15). The respondent squeezed both her cheeks hard and yelled in her face “slut” and “worthless pig”. He then stomped on her foot.

82. She tried to explain the social media. He said he would add random girls and message them to get back at her, that he did not love her and that he wanted revenge and would make her pay for the hurt she had caused him. She managed to run past him and out of the house. The victim got into her car and drove around the block.

83. The victim suffered lacerations over her chest, arm, face, hands and back. She had a bruise on her foot and bruising to her neck and throat, as well as swelling and bruising to her face and jaw. Within the agreed facts, there are photographs of the victim showing “marks to [her] chest and face”, “bruising to [her] foot” and “markings” on her forearm (agreed facts, p 15). She was in extreme pain and her body was sore for at least two weeks. She could not talk or swallow without pain due to the cuts to her tongue and mouth. This conduct constitutes count 14 (assault occasioning actual bodily harm) to be taken into account on a Form 1.

84. A few days later, the respondent sent the victim a picture to remind her he was not accepting her explanation and was going to kill the male in the photo when he found out his name.

Count 15: Assault occasioning actual bodily harm and Sequence 70: destroy or damage property (Form 1 offence) (Incident 24)

85. On 7 October 2019, the victim and respondent were driving home from the beach. They began to argue. He started to call her names. The respondent’s name calling escalated to the point that she stopped the car in a back street. She could not focus on driving as she was too anxious and stressed. She tried to calm him down, but he told her to “fuck up cunt”.

86. The respondent pulled the victim’s hair towards the centre console. Some of her hair was pulled out of her head. He maintained hold of her hair and punched her in the face, causing her nose to bleed and a split between her nose and upper lip. This conduct constitutes Count 15. There is a photograph, taken that day, contained within the agreed facts showing the victim’s “bloody nose/upper lip” (agreed facts, p 16).

87. The victim tried to defend herself and screamed at him to stop and let her go. She curled up trying to protect her face and free her hair from his grip. He elbowed her in the back then let go. She was crying. She had blood all over her shirt and over the car.

88. The respondent then punched the dashboard and radio, causing damage to the console such that it caved in and the air conditioning vents were further broken. This conduct constitutes sequence 70 to be taken into account on a Form 1. There is a photograph, taken that day, contained within the agreed facts showing damage to the victim’s vehicle (agreed facts, p 16).

89. On the way home, a car pulled in front of them and the respondent had “road rage”. He threatened to kill the person and was yelling for him to pull over and fight him. When they got home, the respondent jumped out but the victim stayed in the car and drove around the corner where she stayed for about 40 minutes.

Count 17: Intentionally choke person without consent (Incident 27)

90. On 12 April 2020, the victim and respondent were at home and she was trying to watch videos about child birth. He got angry and said he was going to play PlayStation and told her “not to disturb him with pointless shit like that”. She walked to the balcony, and he followed her and shoved the door into her. She begged him to leave her alone and go inside. He said, “you started this and want to ruin my day, so you don’t get to decide”. She sat down as he stood over her. He grabbed her arms and told her she was “disgusting” and spat on her.

91. The victim put a pillow over her stomach and he moved towards her. As he did, he knocked over his motorbike which fell onto her. She tried to move it off her and asked him too as well, but he refused. She tried to get up, but he pushed her back and laughed and told her she was not going anywhere. She managed to get up and push him to get through the door, but he grabbed her by the hair, dragged her to a wall and pushed her against it. He yelled in her face, “fat cunt, slut, fucking bitch and a waste of breath”. She began to cry. He took hold of her neck with both hands and squeezed it, strangling her. She was trying to get his hands off with one arm while blocking her stomach with the other. She could not talk. This conduct constitutes count 17.

92. The victim tried to push him off her, but he grabbed her arms and squeezed them hard. He shoved her and yelled, “you think I want to do this. Why do you do it, why do you make me get to this point”. He then backed away from her. She ran upstairs to the bathroom and locked herself in. She sustained bruising around the neck. Her head was tender from having her hair pulled which caused a headache for some hours and her body ached.

Count 18: Assault occasioning actual bodily harm (Incident 30)

93. On 19 July 2020, the respondent was lying on a lounge at home when the victim approached him, indicating that she wanted to talk to him about issues in their relationship. He tried to force her to lie down with him. She asked him to sit up and talk properly but he pulled her down and would not let her get back up. He grabbed the collar of her shirt and yelled at her, saying he hated her and spit came out of his mouth and onto her face. He pushed her onto the lounge and squeezed her hand. She escaped his grip and moved to the bedroom where their child was sleeping and shut the door. He entered and pushed her onto the bedside table. He said, “don’t touch her, you’re not her mother, you’re nobody to us, you’ve changed, I’m disappointed in you…”.

93. Their child began to cry, and the victim tried to comfort her but the respondent pushed her away and stood between her and their child. He told her to get out of the room. She refused. He pushed her into the wall and began to punch her in the stomach and arms as their child continued to cry. He grabbed her hair and pulled her to the ground, causing her neck to crack. He grabbed at her face and scratched at it as she tried to push him away. He hit her on the side of her head extremely hard. She feared she would lose consciousness. He told her she disgusted him. She was holding their child in her arms. He grabbed the victim, threw her to the ground and kicked her. This conduct constitutes count 18.

94. The victim sustained bruises to her eyelid and under the eye, and bruises on her arms and thighs. She had a laceration to her chin and a burst eardrum. There are photographs in the agreed facts taken on 19 and 20 July 2020, showing “bruising to [the victim’s] forearm…and eye” (agreed facts, p 19).

Count 19: Intentionally choke person without consent and Count 20: Assault occasioning actual bodily harm (Form 1 offence) (Incident 33)

96. On 15 September 2020, the victim was in the bedroom with their child. She sent the respondent a message asking if he wanted to feed her. She was unwrapping their child from a blanket when he entered the room and pushed her away. She pushed him back and said, “don’t you dare push me while I’m handling her”. He picked up their daughter and began to yell at the victim, telling her to “fuck off”, that she was a “no good fat cunt” and a “lazy cunt who stays home all day doing nothing”.

97. The victim begged him to calm down and put the child down, but he kept hold of her. He pushed the victim to the ground and kicked her. She got up and again told him to put the child down. He cornered her in the ensuite and punched her in the face. She was crying. He grabbed her hair in a fist and forced her head into the wall several times. He still had their child in his arms. The child was being swung around as the assault took place and was slipping from his grip. The victim again begged him to put the child down. He walked out of the bedroom, put the child onto a change table in another room and returned. He then punched the victim multiple times in the stomach, pulled her hair and took her by the throat and squeezed it while pressing her against the bedroom door. This caused her to choke and struggle to breathe. This conduct constitutes count 19.

98. The victim screamed at him to let her go as she was worried their child would fall off the table. She pushed back at him as hard as she could, but he pushed her to the ground and kicked her. He then went to the child. The victim had bruises all over her body and a split lip. This conduct constitutes count 20 to be taken into account on a Form 1. There is a photograph of the victim’s bloodied and split lip in the agreed facts (agreed facts, p 20).

Count 22: Assault occasioning actual bodily harm and Count 21: Intentionally choke person without consent (Form 1 offence) (Incident 35)

99. The facts giving rise to count 22 have earlier been set out: see [48], above.

100. On 11 October 2020, the victim and the respondent had an argument about him trying to do something sexual against her wishes. He said he would call up his ex-girlfriend, then he accused the victim of cheating on him. She told him she did not want him as her partner. They were in the hallway when the respondent attacked her from behind. He choked her with the inside of his arm. She could not breathe and tried to break free. He forcefully maintained a grip around her neck and pushed her down to the ground with his body. She tried to talk and scream but was unable to do so. This conduct constitutes count 21 to be taken into account on a Form 1. He let her go and pushed her. He took her phone to the bathroom, locked the door and went through it. She suffered bruising around her neck and a swollen throat which affected her tone of voice.

The uncharged acts

101. The agreed facts provide details of 22 “uncharged acts”. The sentencing judge referred to them in the course of describing the offending but, having done so, did not refer further to them. They were as follows.

The 20 January 2019 uncharged act (Incident 5)

102. On 20 January 2019, the respondent and victim were at the beach. She told him she was unhappy with his aggressiveness, jealousy and controlling behaviour. He became angry and told her he would kill anyone who was with her if their relationship ended, punched her and grabbed her by her t-shirt collar, causing her necklace to break. He grabbed her thigh, pushing his nails in, and said, “I swear to god, you ever cheat on me, it will be the end of both of you”. She suffered bruising to her thigh.

103. There is a photograph in the agreed facts, taken by the victim on 23 January 2019, of the bruising on her thigh (agreed facts, p 5).

The 24 January 2019 uncharged act (Incident 6)

104. On 24 January 2019, the respondent and victim were in their bedroom. He became angry at text messages between her and a friend. He pushed her onto the bed and held her down by her shirt. She felt it choking her. He spat on her face and slapped her across the cheek, demanding she explain herself. He yelled that she was not going anywhere and blocked her from leaving the bedroom. She locked herself in the bathroom. He threatened to hurt himself with a knife if she did not come out. After a while, he calmed down and began to cry. She had a swollen face from the respondent slapping her, and her eye and face were irritated with a burning sensation. She was in pain for several days. There is a photograph in the agreed facts, taken 24 January 2019, showing swelling on the victim’s face (agreed facts, p 5).

The 10 February 2019 uncharged act (Incident 8)

105. On 10 February 2019, the respondent and victim were at home and had plans to go to the movies. The respondent refused to leave until he had smoked some cannabis, which upset the victim. After a short time, they left the house and were talking in the victim’s car. He grabbed the keys from her and threw them into a puddle. She ran towards the front door, but it was locked. As a result, she sustained scratches, lacerations and red marks to her arms, chest and face. The respondent ran to the victim’s car and kicked the tyres and driver’s door, which caused a dent. He yelled, “fucking cunts, you always wanna ruin my day, you will all learn one day to keep your mouths shut”. The victim did not attend work the following day because of the pain and stress from the incident.

106. The victim took photographs of her injuries, but the respondent deleted them that night. There is a photograph in the agreed facts showing a dent to the driver’s side door of the victim’s vehicle taken on 14 February 2019 (agreed facts, p 7).

The 4 March 2019 uncharged act (Incident 9)

107. On 4 March 2019, the victim was in her bedroom and found a piece of paper on the bedside table saying, “you’re a fuckwit”. There is a photograph of the note left on the bedside table contained within the agreed facts (agreed facts, p 7). She confronted the respondent about this. They had an argument about her going to Europe. He told her she was not going and if she did, he would break up with her. She asked him to come with her, but he yelled at her and called her a “selfish cunt”. He then said if she wanted to be single, he would get an apartment and invite other females. He spat on her face and told her she was dead to him. He shoved her with both hands into the bedroom wall. She had a reddened chest and bruising the following day.

The 20 March 2019 uncharged act (Incident 12)

108. On 20 March 2019, the victim was lying in bed in a family member’s room. The respondent entered and asked her to go to their bed, but she refused. He tried to move her. She pushed him away and tried to run but as she did, he punched her in the back and kicked her hips, causing her to fall to the ground. She tried to block the kicks while she was on the floor. He pulled her up by the hair and slapped her across the face where he had the day before. He left the bedroom and she locked herself in the bathroom and had a shower. She stayed in that bedroom that night. When she woke the following morning, she was suffering from severe pain to the cheek and could not turn or lift her head without soreness to her neck. She also had bruising to her arm.

109. There is a photograph in the agreed facts, taken on 20 March 2019, showing bruising to the victim’s arm (agreed facts, p 9).

The 23 March 2019 uncharged act (Incident 13)

110. On 23 March 2019, the respondent and victim were discussing their relationship. She said she did not think they should be together, given the violence she was experiencing and his drug and alcohol abuse. They had an argument about social media, and he took her phone and tried to delete some of her apps. She took his phone and “unfollowed” inappropriate content. He became agitated and said, “how dare you touch my account”. He called her a “fucking fat bitch” and took the phone back. She asked for hers back but he refused. She tried to take it back, but he hit her in the chest causing her instant pain. He continued to push her around the bedroom and into a makeup stand. He picked up an eyeshadow palette and threw it on the ground and punched her. She sustained a large bruise on her chest and had tender arms. She then travelled to Europe from 2 to 25 April 2019. He called and messaged constantly which caused them to have arguments.

The 18 May 2019 uncharged act (Incident 14)

111. On 18 May 2019, the respondent and victim planned to attend the respondent’s aunt’s birthday lunch. On the way, she told him not to worry about it. He told her to “shut the fuck up” and called her a “useless pig”. He then punched the dashboard of her car, leaving scuff marks from an object he was holding. She told him he had caused enough damage and it was not acceptable. He then punched the air conditioning vent, causing it to break. She told him she did not want to go to the lunch anymore and that she would drop him off. The respondent squeezed her thighs with his hand and dug his nails in, saying, “you ungrateful fuck, you make everything about yourself. Oh poor me, I’m a victim”.

112. She tried to remove his hand from her thighs. He moved his hand to her arm and began to squeeze there, causing her pain. He took hold of her left hand which was holding the steering wheel and squeezed that hard, causing pain and cuts. They arrived at the restaurant and got out. The respondent said he would “fucking lose it” if she did not go in with him. They approached the respondent’s family, and the victim immediately went to the toilet and broke down crying. She had bruising and cuts to her thigh and marks and bruising to her hand. She experienced pain in these areas for several days afterwards.

113. There are photographs contained in the agreed facts, taken on 19 May 2019, showing damage to the victim’s vehicle (agreed facts, p 10). There are also photographs of nail markings and bruising to the victim’s arm taken on 18 and 19 May 2019 (agreed facts, p 11).

The 20 May 2019 uncharged act (Incident 15)

114. On 20 May 2019, the respondent and victim were at home discussing their relationship. She said she was not okay with being physically and verbally abused. He exploded and grabbed her by the arms and shoved her into their clothes rack. She tried to leave but he blocked her. He told her she was a child. He pushed her around the room until she fell to the ground. She called out for help as he kicked her body. She managed to get up and get past him as he threw objects around the room. She got out of the room and he followed but his father stepped in front of him. The victim ran out and got into her car. The respondent called her several times and left abusive voicemails and texts. She stayed in the car until about 1:30am as she was too anxious to go back inside. She suffered from bruises and marks over her arms, thighs and stomach.

The 29 May 2019 uncharged act (Incident 16)

115. On 29 May 2019, the victim was at work at a hotel when she received multiple calls and text messages from the respondent. She was too scared to go home so her manager arranged for her to stay at the hotel for a few days. She went to a work colleague’s house for dinner. She received multiple phone calls from the respondent, demanding that she come home and threatening to kill her if she did not.

The 30 May 2019 uncharged act (Incident 17)

116. On 30 May 2019, the respondent continued to contact the victim and make threats over the phone. He said she would be dead if she did not come home. He told her he was damaging her property and was going to kill himself. She got a friend to drive her to the respondent. On the way, she called triple-0 to come and help the respondent. When she arrived, the police were there. The respondent’s family had contacted them as he was abusing them. She saw her hair straightener had been broken in half and other personal items had been damaged. Police found on the respondent’s phone videos of him damaging her hair straightener and other items. In the agreed facts, there is a screenshot of a text message from the respondent and a photograph of damage to the respondent’s personal items sent on 30 May 2019 (agreed facts, p 12).

The 15 June 2019 uncharged act (Incident 18)

117. On 15 June 2019, the respondent was “in a mood” because his aunt was busy and unable to take him to pick up cannabis. He asked the victim to take him, but she refused. He pushed her in the chest and called her a “useless cunt”. He took hold of her hand and squeezed it while glaring at her. He grabbed her car keys and said he was going with or without her. She felt scared and that she had no option but to drive him. She suffered a stress rash as well as bruising to her chest, arms and hand for several days.

The 4 August 2019 uncharged act (Incident 20)

118. On 4 August 2019, the respondent and victim went to a doughnut store near the airport. On the way, the respondent asked her to stop the car so he could smoke some cannabis. She became frustrated at this. He then called her names such as a “fucking cunt”. The victim told the respondent to stop being ungrateful and that he was being unreasonable. He took hold of her thigh with his hand and squeezed it. She flicked his hand away, and he slapped her across the face. She was upset and told him their relationship was almost life threatening. He attempted to open his door, but it was locked. He tried to grab the steering wheel, but she pushed his hand away and told him to stop. The victim turned into an industrial area and he attempted to open the door again, saying he would jump out if she did not stop. She told him to calm down and that she would stop when it was safe to do so.

119. At this point, the victim was anxious, her legs were shaking and she was crying. The respondent shut the car door and began kicking and hitting things in the car. The victim pleaded with him to stop. The respondent caved in the screen on the console, damaging a Bluetooth connection between the steering wheel and radio. He got out of the car and walked away. The respondent called the victim multiple times, but she kept terminating the calls. He returned about 45 minutes later and they went to the doughnut store. The victim told him that she did not want to eat as she could not stomach anything. He told her he did not want to waste his time, so she ordered something to keep the peace. As a result of this conduct, the victim sustained swelling to her face and her thigh felt tender.

The 22 August 2019 uncharged act (Incident 21)

120. On 22 August 2019, the respondent and victim were lying in bed at home. The respondent suggested they be intimate, but she refused. He slapped her across the face as she tried to move away. The respondent said, “how dare you, you disgust me, you fucking fat bitch”. He grabbed her shirt and pulled her towards him, then pushed her away and said, “go rot you fucking dog”. The victim suffered bruising to the left side of her face, a photograph of which, taken on 23 August 2019, is contained in the agreed facts (agreed facts, p 14).

The 31 August 2019 uncharged act (Incident 22)

121. On 31 August 2019, the respondent and victim had a conversation about him fixing the damage he had caused to her car which led to an argument. He called her a “fucking cunt” and said to her, “victim victim victim is all you want to be, you always want to ruin my days and weekends”. She tried to reason with him, but he called her a “miserable bitch”. He grabbed her arms and squeezed tightly. He said, “try me cunt, test me and see what happens. I’m not fixing shit when you annoy the fuck out of me”. She told him to stop and let her go.

122. She pushed him away and began moving out of the bedroom to go to the bathroom and hide. He tried to grab her legs and yelled, “run away you stupid bitch, just like you always do”. She went into the bathroom where she hyperventilated and had a “breakdown”. She had redness on her arms and small bruises on her chest and legs. There are photographs in the agreed facts of red marks to the chest and bruising to the legs of the victim taken on 31 August 2019 (agreed facts, p 14).

The 13 December 2019 uncharged act (Incident 25)

123. On 13 December 2019, the respondent and victim had an argument as she wanted to go home to Queensland for Christmas, but he did not want her to go. He pushed her around the bedroom. He grabbed her arms and squeezed them while yelling in her face and did not allow her to leave. The victim and the respondent’s family members tried to calm him down. He threatened to harm them all and himself. The victim received multiple abusive and threatening text messages from the respondent throughout the night, such as, “get here before I fucking kill you”, “I’m going to go ballistic”, “everything you get you going to deserve you fucking bitch, watch your shit” and “I’m going to duck [sic] you up”. The victim sustained bruises to her arms.

The 28 March 2020 uncharged act (Incident 26)

124. On 28 March 2020, the respondent and victim had an argument about fixing the damage he had caused to her car. She told him she needed it fixed as she was pregnant. He told her she was a “selfish cunt” who only thought about herself and that there were “other people in this world too”. He grabbed her arms and squeezed them hard, causing her pain. He said to the victim, “who do you think you are?” and, “you’re so full of shit, do you hear yourself talk?”. He punched her in the arm and told her to “get the fuck out of my face”.

125. There is a photograph in the agreed facts of bruising to the victim’s upper arm taken on 30 March 2020 (agreed facts, p 17).

The 17 April 2020 uncharged act (Incident 28)

126. On 17 April 2020, the victim approached the respondent about his drug and alcohol use which resulted in an argument. During this argument, the respondent grabbed the victim’s wrist. He glared at her and squeezed her arm, saying that he “wasn’t in the mood”. She told him to stop but he got angry, saying it was her fault.

127. As a result of this incident, the victim had bruising on her forearm. There is a photograph, taken on 19 April 2020, in the agreed facts showing bruising to the victim’s forearm (agreed facts, p 18).

The 15 July 2020 uncharged act (Incident 29)

128. After the respondent and victim’s child was born in June 2020, they moved out of the respondent’s family home and into their own. On 15 July 2020, they had an argument as she refused to be intimate with him. Later he tried to tell her she could “help him out”, but she refused and told him he was “gross”. They had dinner in silence, and he told her it was “shit”. She started to clear the table, and when she returned, he kicked her in the stomach. She was four weeks post-partum and still very sore. She yelled at him not to touch her again as she would leave. He told her to “shut the fuck up bitch”. She went to their child’s room for the night. As a result of the assault, the victim suffered a bruise to her stomach. There is a photograph in the agreed facts, taken on 19 July 2020, showing this bruising (agreed facts, p 18).

Undue prominence and/or double counting in relation to rehabilitation

183. The Crown argued that the finding by the sentencing judge that the “aggregate [sentence] must remain not such as to deter the [respondent] from rehabilitation” (J28) strongly suggested that the sentencing judge gave undue prominence to promoting the respondent’s rehabilitation when fixing the aggregate sentence and also by using it as a basis to find that there were special circumstances justifying the variation to the statutory ratio between the aggregate sentence and the non-parole period (Crown submissions at [65]). The Crown’s ultimate submission was that these matters support the inference that the sentencing discretion miscarried.

184. Notwithstanding the Crown’s submissions overlap, I will deal first with the argument about the role of rehabilitation in the context of the aggregate sentence, and then deal with the argument about the role of rehabilitation in the context of the finding of special circumstances (and special circumstances more generally).

185. Three matters warrant emphasis in relation to the finding made by the sentencing judge that the aggregate sentence must not “deter the [respondent] from rehabilitation” (J28).

186. The first is that the finding of the sentencing judge undeniably gave prominence to rehabilitation and was a finding made in spite of the earlier unfavourable findings about the respondent’s prospects of rehabilitation including: first, the “offences were prolonged over a period of about two years”; secondly, the respondent “repeatedly breached albeit without violence an apprehended violence order made for the protection of another person subsequently”; thirdly, during a period of parole under another sentence, the Sentencing Assessment Report noted that the respondent “remained resistant to intervention to address offending such as this”; and, fourthly, there was “no indication he has addressed his psychopathology underlying the present offences or proposes to do so” (J26). Having made these findings, the sentencing judge was unable to find that the respondent’s prospects of rehabilitation were good, or that the likelihood of his reoffending was low (J26). However, that the sentencing judge gave prominence, in the way that he did, to rehabilitation does not, in and of itself, bespeak error.

187. The second matter warranting emphasis is that the sentencing judge did not make a favourable finding about remorse. The finding was that there was “no other evidence of acceptance of responsibility for the offences or acknowledgement of their consequences such as to warrant a finding of remorse” (J26). The absence of a favourable finding about remorse was plainly relevant to any consideration of rehabilitation, and the respondent’s prospects of being rehabilitated. That is because (genuine) remorse “is to be seen as a mitigating factor because it is a concomitant of rehabilitation”: Stojanovski v R [2013] NSWCCA 334 at [41]; Brzozowski v R [2023] NSWCCA 129 at [3]. Genuine remorse is thus a “very important element in the exercise of the sentencing discretion” because it “enhances prospects of rehabilitation and reduces the need for specific deterrence”: Barbaro v The Queen [2012] VSCA 288; (2012) 226 A Crim R 354 at [39] (‘Barbaro’).

188. Yet, from the structure of the sentencing judge’s reasons, it is not apparent that the sentencing judge factored the absence of remorse into his assessment of, and finding about, “rehabilitation”, nor is it apparent that he considered that matter when dealing with specific deterrence. The sentencing judge dealt with remorse separately from rehabilitation, and when dealing with the factors that “indicate concern regarding prospects of rehabilitation” made no mention of the respondent’s lack of remorse. Further, specific deterrence was also dealt with separately from, and without reference to, the finding about lack of remorse. As noted in Barbaro, the absence of remorse was directly relevant to the need for specific deterrence in sentencing. The sentencing judge’s finding about specific deterrence being not “irrelevant”, but not warranting “special weight” (J27) sits uneasily with the principle stated in Barbaro. As I have earlier noted (see [177], above), given the finding made about remorse and that the sentencing judge was unable to find that the likelihood of the respondent’s reoffending was low, specific deterrence should be a significant consideration: Darcy-Shillingsworth at [82]. The above matters satisfy me that the sentencing discretion miscarried producing a manifestly inadequate sentence, and provides some explanation for why the sentence, on its face, was unreasonable or plainly unjust.

189. The third matter warranting emphasis is that although the sentencing judge noted that the respondent “remains relatively young”, it was not a case of sentencing a young offender: the respondent was aged between 20 to 22 when he committed the offences, and he and the victim shared a child born in June 2020. It is relevant to observe that there was no finding, by way of illustration, that the immaturity of the respondent was a significant, or even a, factor in the commission of the offences so as to provide a basis for lessening considerations of general deterrence and retribution (see KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22]-[26] (‘KT’)); and nor was there any other finding such that the sentencing principles that apply to young offenders were engaged. There was, therefore, no reason on account of “youth” to subordinate considerations of general deterrence and retribution to the need to foster the respondent’s rehabilitation in line with the principles identified in KT.

190. The Crown next submitted that the undue prominence given to the respondent’s “prospects” of rehabilitation by the sentencing judge is illustrated by the way he dealt with, and made a finding about, special circumstances. That finding resulted in a significant reduction to the statutory ratio between the aggregate sentence and the non-parole period, from 75% to 50%: s 44 of the CSP Act. The finding of the sentencing judge was as follows (J28):

Special circumstances justify a lower proportion for the non-parole period relative to the term. The [respondent’s] experience of imprisonment will likely be more onerous as a consequence of his mental conditions. Supervision of the [respondent] on his release into the community is warranted to ensure interventions including psychiatric and psychological treatment, offence specific programs, substance abuse related programs and psychosocial management.

191. The twin reasons given to justify the variation to the statutory ratio were, thus, the need for extended supervision for rehabilitative purposes and because the respondent’s experience of imprisonment would be “more onerous as a consequence of his mental conditions”.

192. The finding of special circumstances based on the need for supervision is, in my view, an exceedingly generous one. As the Crown in substance argued, the rather measured findings about the respondent’s prospects of rehabilitation, somewhat counter-intuitively, worked to the benefit of the respondent and were a basis for finding special circumstances – a finding that was made notwithstanding: (a) the other unfavourable findings about the respondent’s prospects – what the sentencing judge found indicated “concern regarding prospects of rehabilitation” – including that the respondent “remained resistant to intervention to address offending such as this” and that there was “no indication he has addressed his psychopathology underlying the present offences or proposes to do so” (J26); and (b) the fact that the sentencing judge had also found there was “no other evidence of acceptance of responsibility for the offences or acknowledgement of their consequences such as to warrant a finding of remorse” (J26).

193. It is a little difficult to accept that a finding of special circumstances could have been made given those considerations, and in my view, the protection of society and the other sentencing objectives militated strongly against such a finding: R v Windle [2012] NSWCCA 222 at [55].

194. The Crown also argued that “double counting” had occurred in connection with the special circumstances finding, and that too supported the inference that undue prominence was given to the respondent’s “prospects” of rehabilitation and, further, the inference that the sentence was erroneously lenient. The respondent contested that there was impermissible double counting, submitting that the approach of the sentencing judge was not suggestive of double counting between the aggregate sentence and a finding of special circumstances given there will inevitably be “overlap between factors relevant to the two associated decisions inherent in the sentencing process”, citing in support R v GWM [2012] NSWCCA 240 at [102] (respondent’s submissions at [10]).

195. It may be accepted, as the respondent submitted, that in a broad sense there is or may be a measure of overlap between the subject matter that is considered when fixing the head sentence and the subject matter that is considered when determining whether to make a finding of special circumstances. But it is important to identify exactly what that overlap can permissibly involve. This was authoritatively explained by Spigelman CJ in R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [67] (‘Simpson’) as follows:

Where a circumstance is taken into account by way of reduction of the head sentence, the application of the statutory proportion will have the result that the circumstance also reduces the non-parole period. Before a sentencing judge further reduces the non-parole period by reason of that circumstance, he or she must undertake a process of analysis which travels beyond that which has been undertaken in the course of determining the head sentence.

196. Following on from the above, it is, therefore, clear that double counting “for matters already taken into account in reducing the head sentence, and therefore already reflected in the non parole period, must be avoided”: R v Fidow [2004] NSWCCA 172 at [18] (‘Fidow’). It is also clear that double counting will not occur “if the analysis of the relevance of a particular circumstance to the non‑parole period ‘travels beyond’ the analysis of its relevance to the head sentence”: R v AA [2017] NSWCCA 84 at [74]; PW v R [2019] NSWCCA 298 at [33]-[36].

197. When determining the sentence to be imposed, the sentencing judge held the “aggregate [sentence] must remain not such as to deter the [respondent] from rehabilitation” (J28) and also made reference to the need for prolonged supervision to ensure that the respondent participates in treatment to promote rehabilitation and reduce the risk of reoffending (J26). Yet the finding about the need for prolonged supervision also carried over and formed the basis for the finding of special circumstances, resulting in a reduction of the non-parole period (J28). There was no “additional reason” provided warranting the further reduction nor, to be clear, was the analysis different: Simpson at [67]; Fidow at [18].

198. The position, in my view, is similar with respect to the second reason justifying a finding of special circumstances – namely, that the respondent’s experience of imprisonment would be “more onerous as a consequence of his mental conditions” (J28). In relation to this reason, it will be recalled that, when determining the sentence to be imposed, the sentencing judge had already made a finding that the respondent’s “mental condition…[was] likely to make his experience of imprisonment more onerous” (J25). In short, the subjective consideration that moderated the sentence imposed upon the respondent also formed the precise basis for the finding of special circumstances. No “additional reason” was provided warranting a reduction in the non-parole period.

199. In my view, the inference of undisclosed error, as argued by the Crown, leading to an unreasonable or plainly unjust sentence, should be drawn in connection with the aggregate sentence imposed: the sentencing judge’s treatment of rehabilitation, particularly given he was unable to make a finding of remorse and unable to find the prospects of reoffending were low, and the importance of specific deterrence having made those two findings, I consider points to latent, but definite, error. Further, I consider the inference of undisclosed error, as argued by the Crown, should also be drawn in connection with the finding of special circumstances and the ratio fixed by the sentencing judge: the manner in which the sentencing judge dealt with special circumstances, as I have explained, I consider points to latent, but definite, error. The finding of special circumstances and reduction of the ratio between the aggregate sentence and the non-parole period further reduced what I consider to be a manifestly inadequate aggregate sentence. The non-parole period does not properly reflect the criminality involved in the offending.

The respondent’s subjective case

200. The Crown argued that the inadequacy of the sentence (and non-parole period) was underscored by the fact that the respondent’s subjective case was “not strong”, and to the extent that favourable findings were made by the sentencing judge, they were commonly qualified (Crown submissions at [61]-[63]). The Crown submitted that his Honour may have allowed subjective considerations to overwhelm the sentencing exercise (Crown submissions at [66]).

201. The Crown submitted that, in relation to the respondent’s subjective case, many of the findings of the sentencing judge were “arguably generous” based as they were on untested self-reports to a psychologist who had been qualified by the respondent’s solicitors to provide a report for the sentencing hearing. Thus, by way of example, the Crown argued that the finding that the respondent had a “dysfunctional upbringing” (J27) needed to be understood in the context of the respondent moving in and residing with his aunt and grandmother from the age of 14 (following domestic violence offending against his mother) and his statement to the psychologist that he felt loved and safe in their home. The respondent continued to live with those family members and had the victim move into that home with him. Further, the respondent completed schooling to year 10 and subsequently obtained certificates in carpentry and engineering, fabrication and boiler making and was employed for six years before being sentenced for these offences.

202. It may well be that this finding (and the others referred to) can be fairly characterised in the way the Crown submitted. But given there is no specific challenge to the finding, or any of the findings made in connection with the respondent’s subjective case, whether it bears that characterisation is of no moment: the Crown’s appeal did not involve an allegation that the sentencing judge had made an error within the first category of error formulated in House v The King. In any event, I am unable to accept that the sentencing judge’s consideration of the subjective matters raised by the Crown – the “dysfunctional upbringing” and the respondent’s “mental condition” – on their own bespeak error, or permit an inference of error, in the exercise of the sentencing discretion resulting in a sentence below the range that could be justly imposed.

Other sentencing decisions

203. The Crown, in its written submissions, drew attention to a number of sentencing decisions involving domestic violence, or domestic violence-related, offending although, quite properly, those submissions acknowledged that there were limited numbers of sentencing decisions that might be used as a basis to assess whether the sentence was manifestly inadequate. The Crown also acknowledged that, even then, there were limits on the usefulness of this comparative exercise, given the similarities and dissimilarities between sentences imposed in those cases and the sentence imposed in the present one (Crown submissions at [68]). To the extent the exercise had some utility, the Crown submitted that there were parallels between two decisions – namely, Ladas v R [2022] NSWCCA 160 (‘Ladas’) and Habambo v R [2023] NSWCCA 328 – and the present case and that whilst those few cases did not establish a “range”, nevertheless a consideration of those decisions (notably the decision in Ladas was the only decision that was the subject of oral submissions) could at least inform whether the sentence was manifestly inadequate (Crown submissions at [69]-[73]; Tcpt, 24 May 2024, p 2(30)-(40)).

204. The respondent contested the suitability of comparison between each of these decisions, submitting that “the comparison does not bear scrutiny” and that any analysis of the sentences imposed in those cases would be “of little assistance in assessing the circumstances of the present case” (respondent’s submissions at [13]).

205. Whilst it is uncontroversial that regard should be had to sentencing decisions in comparable cases that may serve to illustrate, albeit not define, the possible range of sentences available, I do not consider that the few cases ultimately relied upon can be regarded as providing a sentencing pattern or a range of sentences against which to examine the sentence in this case: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54] (‘Hili’); R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [26] and [29]. Neither of them was sufficiently similar, as I will briefly explain by reference to the decision that was the subject of oral submissions – Ladas.

206. The decision in Ladas involved an offender who committed domestic violence offences, over a period of approximately two and a half years, against his former domestic partner. The offender pleaded guilty to nine substantive offences, with ten offences taken into account on a Form 1. The offences for which guilty pleas were entered involved two counts of use an offensive weapon (one count involved a baton, another count involved a “kitchen knife”) with intent to commit an indictable offence (intimidation), contrary to s 33B(1)(a) of the Crimes Act; four counts of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act; and three counts of intimidate intending to cause fear of physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

207. There is, to my mind, little to be gained by comparing the sentence imposed in Ladas with the sentence imposed in the present case as a step towards determining whether the sentencing judge fixed an erroneously lenient sentence. That is because, whilst the offending in Ladas may be said to be, very broadly, similar to the offending in the present case, there are very significant differences, in my view, including the following: (a) in Ladas, unlike the present case, the sentencing for each of the principal offences (with the exception of sequences 25 and 45) involved a consideration of offending placed on a Form 1, quite often multiple offences (for example, sequences 10 and 51); (b) in Ladas, the offender entered an early plea of guilty, entitling him to a 25% sentencing discount in accordance with s 25D of the CSP Act; (c) the subjective case for the offender was different, and involved (unlike the present case) the sentencing judge finding that the offender was remorseful; and (d) the findings of objective seriousness made in Ladas reflect the particular circumstances of the offending in that case.

Conclusion: the sentence was manifestly inadequate

208. In my view, having considered “all of the matters that are relevant to fixing the sentence” (Hili at [60]) and the matters relied upon by the Crown to support the inference that the sentencing discretion miscarried dealt with above, appellate intervention must occur because the nature of the sentence indicates that some underlying error has taken place, even though it is not possible to identify it from the reasons, resulting in a manifestly inadequate sentence. In my view, the markedly inadequate sentence pronounced by the sentencing judge is such that it amounts to “‘an affront to the administration of justice’ which risks undermining public confidence in the criminal justice system”: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [42]. The aggregate sentence imposed is, for that reason, “unreasonable or plainly unjust”.

208. Given that conclusion, it remains to consider whether the appeal should nevertheless be dismissed in the exercise of this Court’s residual discretion.

The residual discretion

210. The discretion of this Court, under s 5D(1) of the Criminal Appeal Act to vary a sentence and impose such sentence as to it seems proper, has been described as “residual”, because “its exercise does not fall to be considered” unless the sentence pronounced involved error of law or fact or was unreasonable or plainly unjust: CMB at [54]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [51].

211. Further, once appellable error is demonstrated, the Crown is required “to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised”: CMB at [34]-[35], [56] and [66], citing R v Hernando [2002] NSWCCA 489; (2002) 136 A Crim R 451 at [12]. The “Court retains a discretion to dismiss a Crown appeal to be exercised on the basis of ‘unfairness or injustice’”, a discretion that is not “to be exercised on the basis of a narrow range of considerations”: R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [85] (‘JW’). Whether there has been unfairness or injustice involves a consideration of the conduct of the Crown, including whether they have contributed to the sentencing error or whether the appellate challenge involves the Crown attempting to “conduct an appeal on a different basis to that advanced below”: JW at [93]. Any delay in instituting a Crown appeal is also relevant, particularly if the delay has caused prejudice to the offender: R v Hallocoglu (1992) 29 NSWLR 67, 80; JW at [93]-[94].

212. Having found error in the sentence imposed, it remains to consider the “residual discretion”. Before doing so, it should be noted that the respondent did not read any evidence on the appeal directed to the manner of its exercise.

213. I have separately considered whether, despite concluding that the sentence imposed was erroneously lenient, the appeal should nevertheless be dismissed. That is the course that the respondent argued should occur (respondent’s submissions at [21](v)). I am, however, satisfied that the Crown has negated any reason to exercise the discretion not to interfere, for the following reasons.

214. First, there has been no delay on the part of the Crown in instituting, and prosecuting, this appeal. The respondent, it should be noted, did not submit to the contrary. Further, the appeal has been listed for hearing, with expedition.

215. Secondly, there is nothing in the conduct of the Crown that contributed to the manifest inadequacy of the sentence, nor is the Crown taking a different position than the one adopted before the sentencing judge. Again, the respondent did not submit to the contrary.

216. Thirdly, the respondent submitted that, given his non-parole period “is due to expire in approximately 8 months”, any intervention and re-sentencing of the respondent “is likely to affect his progress towards rehabilitation” (respondent’s submissions at [21](iii)). I do not accept this submission. Contrary to what the respondent submitted, the non-parole period does not expire in 8 months’ time: it expires on 28 February 2026. Separately, there is no evidence about the respondent’s “progress towards rehabilitation” (as earlier noted, no evidence was read on the appeal by the respondent), and I am unprepared to draw any inference about that subject matter (particularly given the limited findings made by the sentencing judge), less still that resentencing would involve any form of disruption to it.

217. Fourthly, in my view, the inadequacy of the sentence pronounced by the sentencing judge and the importance of the principles of general and specific deterrence and community protection in the context of sentencing for domestic violence provides a basis for the engagement and exercise of the discretionary power of the Court to resentence the respondent: Darcy-Shillingsworth at [86].

218. Fifthly, I do not accept, as the respondent argued, that any resentence would be so slight such that it would amount to “tinkering” (respondent’s submissions at [21](ii)), with the consequence that the Court should decline to interfere: Dinsdale at [62]; R v Woodland [2007] NSWCCA 29; (2007) 48 MVR 360 at [53] and [57]. The conclusion that I have reached about the manifest inadequacy of the sentence imposed by the sentencing judge and the sentence that I consider must be imposed upon the respondent stand against acceptance of this submission.

Resentence

219. Having concluded that the sentencing discretion miscarried and that the Crown has negated any reason why the residual discretion not to interfere should be exercised, it falls upon this Court to exercise the sentencing discretion across all counts and “impose such sentence as to the said court may seem proper”: s 5D(1) of the Criminal Appeal Act.

220. In relation to resentencing the respondent, neither the Crown nor the respondent challenged any of the primary factual findings made by the sentencing judge, albeit that the Crown contested the inferences and/or conclusions drawn from those findings, as part of the overall complaint directed to the manifestly inadequate sentence imposed: Tcpt, 24 May 2024, p 5(39)-(42). Further, the respondent did not read any evidence on the “usual basis” – that is, to show events that have occurred since the time of sentencing, and not to advance a new and different case in the event that this Court resentenced the respondent: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]; Ragg at [56]. Given there is no evidence of the respondent’s post-sentence conduct, the sentencing discretion therefore proceeds on the basis of the findings made by the sentencing judge (DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]), and without regard to the sentences imposed by the sentencing judge: Turnbull v R [2019] NSWCCA 97 at [44]-[46]; RO v R [2019] NSWCCA 183 at [81]-[89]; AM v R [2024] NSWCCA 26 at [44].

221. In exercising the sentencing discretion, I am required to be mindful of the legislative guidepost – being the maximum sentence for each offence (as earlier noted, there is no standard non-parole period or minimum penalty applicable for the offences) – and to identify all factors relevant to the sentencing task, consider their significance and then assess the appropriate sentence: Markarian at [51]; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]-[27]. As previously noted, the maximum penalties for the offences are: 5 years imprisonment for the offence of assault occasioning actual bodily harm (s 59(1) of the Crimes Act); 7 years imprisonment for the offence of armed with intent to commit an indictable offence (s 114(1)(a) of the Crimes Act); and 5 years imprisonment for the offence of intentionally choke without consent (s 37(1A) of the Crimes Act).

222. In connection with these offences, the serious nature with which the offending must be adjudged is reflected in the maximum penalties, albeit that the maximum penalty is reserved for the worst category of cases or worst possible case constituting the offence: Markarian at [31]; Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485 at [27].

223. There was, before the sentencing judge, a victim impact statement from (and read by) the victim, and the sentencing judge made findings about that evidence (see [140], above) which I have considered.

224. In relation to the objective seriousness of the offending, and aggravating factors under s 21A(2) of the CSP Act, the findings are summarised at [141]-[142], above. The findings of the sentencing judge in connection with the objective seriousness of the offending have also been summarised in a table: see [153], above.

225. The sentencing judge also found that the respondent’s criminal record disentitled him to leniency (J23). The uncharged acts referred to would also deny the respondent leniency on the ground that he was otherwise a person of good character: LN at [159].

226. The findings of the sentencing judge in connection with subjective matters have been earlier summarised, including the unfavourable finding made in connection with remorse and the limited favourable findings in connection with rehabilitation: see [143]-[149], above. The findings on subjective matters include those relating to the respondent’s upbringing and employment history; that the respondent suffers from corneal dystrophy (albeit that there was no evidence that the respondent would not receive proper treatment for this condition or that that condition was likely to make his experience in custody more onerous); and that the respondent’s “mental condition” was likely to make his experience of imprisonment “more onerous”.

227. I have, consistently with the authorities earlier referred to (see [175]-[176], above), attached significant weight to general and specific deterrence and community protection particularly where, as here, there is no favourable finding about remorse and the sentencing judge was unable to find that the prospects of reoffending were low.

228. It is clear that the “threshold” in s 5(1) of the CSP Act has been passed, and I accept and find that it has. I have considered, and had regard to, the purposes of sentencing: s 3A of the CSP Act.

229. The sentencing judge noted that the respondent entered pleas of guilty, entitling him to receive, pursuant to s 25D(2)(c) of the CSP Act, a sentencing discount of 5% (J27). I have applied this discount to the indicative sentences in accordance with s 53A of the CSP Act.

230. The indicative sentences for some of the counts (being counts 2, 4, 6, 13, 15, 19 and 22) include a consideration of further offending to be taken into account on a Form 1: see [44], above. For those offences, I have given greater weight to the need for personal deterrence and retribution.

231. I propose an aggregate sentence. I indicate the following sentences for each count, which has involved a 5% sentencing discount with some rounding in order to achieve a practical result:

Count	Offence and objective seriousness finding	Indicative sentence
1	Assault occasioning actual bodily harm: “relatively low”	5 months
2	Armed with intent to commit an indictable offence: “moderate” Form 1: assault occasioning actual bodily harm	1 year and 10 months
4	Armed with intent to commit an indictable offence: “moderate” Form 1: assault occasioning actual bodily harm	1 year and 10 months
6	Assault occasioning actual bodily harm: “relatively low” Form 1: destroy or damage property	8 months
7	Assault occasioning actual bodily harm: “relatively low”	5 months
8	Intentionally choke without consent: “moderately serious”	1 year and 10 months
9	Intentionally choke without consent: “moderately serious”	1 year and 10 months
12	Assault occasioning actual bodily harm: “moderately serious”	1 year and 5 months
13	Intentionally choke without consent: “also moderate” Form 1: assault occasioning actual bodily harm	2 years and 1 month
15	Assault occasioning actual bodily harm: “moderately serious” Form 1: destroy or damage property	1 year and 10 months
17	Intentionally choke without consent: “moderate to high”	1 year and 10 months
18	Assault occasioning actual bodily harm: “high”	2 years and 4 months
19	Intentionally choke without consent: “high” Form 1: assault occasioning actual bodily harm	2 years and 4 months
22	Assault occasioning actual bodily harm: “relatively low” Form 1: intentionally choke without consent	8 months

232. Given an aggregate sentence is to be imposed, it remains to consider the principle of totality. As earlier noted, that principle requires a sentencing court, when sentencing for a series of offences and imposing an aggregate sentence, to assess whether the aggregate is just and appropriate having regard to the totality of the criminality.

233. The offending spanned nearly two years – from 3 November 2018 to 17 October 2020. The offences are substantially, or very substantially, “discrete acts” (as the sentencing judge in fact noted: J28). The separate and distinct nature of the offending has the consequence that there should be a greater degree of accumulation so as to reflect the total criminality: Nguyen at [64].

234. Applying the principle of totality in relation to the discounted individual sentences, I propose an aggregate sentence of imprisonment of 6 years, with a non-parole period of 4 years. The non-parole period reflects a finding of special circumstances so as to vary, slightly, the statutory ratio provided by s 44 of the CSP Act. That finding is based upon a combination of two matters: first, the respondent’s youth (a matter, it should be emphasised, that I have not used as some generally mitigating circumstance when determining the aggregate sentence) and, secondly, to assist the respondent in his reintegration back into the community and the avoidance of future offending.

235. The respondent, although sentenced on 1 December 2023, was “remanded in custody for these offences [for] two days” (J29). The sentence should therefore commence on 29 November 2023 to account for the time the respondent was held in custody for this offending: ss 47(2) and (3) of the CSP Act.

236. The counts for which guilty pleas were entered involved offending that constitutes “domestic violence offences” within s 11 of the Crimes (Domestic and Personal Violence) Act, being personal violence offences committed against a person with whom the respondent was in a domestic relationship. The sentencing judge did not make an order that, pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act, the offences be recorded on the respondent’s criminal record as domestic violence offences and it would appear that his attention was not drawn to these statutory provisions. That further sentencing order should also be made.

Orders

237. For the above reasons, I propose the following orders:

1. Allow the appeal.

2. Quash the sentence imposed on the respondent on 1 December 2023 and in lieu thereof impose an aggregate sentence of imprisonment of 6 years, with a non-parole period of 4 years, commencing 29 November 2023. The respondent will become eligible to be released on parole on 28 November 2027. The sentence will expire on 28 November 2029.

3. Order, pursuant to s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), that the offences be recorded on the respondent’s criminal record as domestic violence offences.

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Endnotes

Amendments

08 November 2024 - Amendments made to cross-referencing

Decision last updated: 08 November 2024