Ross, Christopher v The Queen

[2019] NSWCCA 314

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Ross, Christopher v R [2019] NSWCCA 314
Hearing dates:	22 November 2019
Date of orders:	20 December 2019
Decision date:	20 December 2019
Before:	Basten JA at [1]; Macfarlan JA at [59]; Campbell J at [60]
Decision:	(1)   Grant the applicant leave to appeal against the aggregate sentence imposed on him in the District Court on 8 March 2019.  (2)   Dismiss the appeal.
Catchwords:	CRIMINAL LAW – appeal against sentence – manifest excess – domestic violence offences – whether indicative sentences demonstrated error in aggregate sentence – findings as to offender’s subjective circumstances – cumulative effect of multiple sentences
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13 Crimes Act 1900 (NSW), ss 61, 85, 323, 324
Cases Cited:	Asplund v R [2014] NSWCCA 237 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cross v R [2016] NSWCCA 214 Evans v R [2017] NSWCCA 281 Kiernan v R [2016] NSWCCA 12 Mulato v R [2006] NSWCCA 282 Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 PD v R [2012] NSWCCA 242 Postiglione v The Queen (1997) 189 CLR 295 at 307-308; [1997] HCA 26 R v Burton [2008] NSWCCA 128 R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 R v Fernando(1992) 76 A Crim R 58 R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 R v Hamid [2006] NSWCCA 302; 164 A Crim 179 R v MAK; R v MSK [2006] NSWCCA 381 SHR v R [2014] NSWCCA 94; 241 A Crim R 544 The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 Warby v R [2007] NSWCCA 173; 171 A Crim R 575
Category:	Principal judgment
Parties:	Christopher Ross (Applicant) Regina (Respondent)
Representation:	Counsel: Mr J Brock (Applicant) Mr F Veltro (Respondent)   Solicitors: Aboriginal Legal Service (NSW/ACT) Ltd (Applicant) Director of Public Prosecutions (Respondent)
File Number(s):	2016/108220; 2016/275221
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 8 March 2019 Before: Ingram SC DCJ File Number(s): 2016/108220; 2016/275221

Judgment

1. BASTEN JA: On 8 March 2019 Christopher Ross was sentenced in the District Court at Dubbo by Judge Ingram SC with respect to five offences all involving elements of domestic violence between Mr Ross and his de facto partner, including one offence of seeking to dissuade her from giving truthful evidence. The judge sentenced him to prison for an aggregate term of 6 years 6 months with a non-parole period of 4 years 8 months.

2. Mr Ross (the applicant) seeks leave to appeal on the basis that the aggregate sentence is manifestly excessive. In support of that ground, he makes no complaint about the careful statements of law, principle and fact in the judgment on sentence. However, he contends that the application of the relevant principles appears to have gone awry and that the result is a manifestly excessive sentence. One basis for that conclusion is that the putative sentences for the individual offences were themselves excessive. Secondly, with respect to the application of stated principles, he contended that the sentence did not reflect the factual findings made by the judge as to his disadvantaged background and the genesis of his drug dependency. Thirdly, he submitted that the aggregate sentence did not adequately take account of what counsel identified as the “real life operation of the aggregate term.” By that he meant that, with the exception of 7.5 months, the applicant would serve a period of almost 8 years in custody from 24 July 2014 until 8 March 2022, assuming that he obtained release on parole at the earliest time. The applicant is now 37 years of age, and the lengthy period of custody away from his family was likely to induce a sense of hopelessness and undermine prospects of rehabilitation.

3. The nature of the issues raised warrants a grant of leave to appeal, but, as none of the submissions can be accepted, the appeal must be dismissed.

The offending

4. Although the applicant and the complainant had known each other since childhood, both being brought up in Dubbo, their relationship commenced on 20 January 2016. At that stage the complainant had five children living with her. However, on 5 February 2016 the Department of Community Services took the children into care. According to a statement made to Ms Anne Lucas, a forensic psychologist, on 31 July 2018, both parties were using drugs. The relationship soon became dysfunctional with constant arguments and pushing and shoving by each party.

5. Count 1 involved an act of intimidation on 1 April 2016, being an offence under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“Personal Violence Act”).

6. On 1 April 2016 the complainant attended court in relation to proceedings relating to her children. The applicant had intended to finalise paperwork to arrange accommodation with the Department of Housing, but stayed with the complainant during the day. At night they argued about not being able to organise housing, in the course of which argument, the applicant took hold of a syringe and said to the complainant, “I’m going to kill you.” He then chased her around the room of the motel in which they were staying. That incident constituted count 1 on the indictment.

7. In the early hours of 2 April 2016, the complainant left the motel with the applicant, she noting that he had taken a blunt cheese knife with him. The complainant threatened to kill herself to which the applicant responded that he would kill them both. Knowing that he had the knife, the complainant believed him. There was further threatening behaviour by the applicant before the complainant ran to a nearby service station. The threat constituted count 2, a further count of intimidation.

8. An employee in the service station called the police, who attended, but the complainant made no complaint to the officer. After the police had spoken to the complainant, the applicant and the complainant left, walking in different directions. Both ultimately returned to the motel room and slept.

9. Later on 2 April, the complainant secured emergency accommodation at a different motel. There was further argument, including verbal aggression, during the day but they spent the night together at the motel.

10. The arguments continued on 3 April. The agreed facts in relation to that day stated: [1]

“At about 4pm the complainant asked the offender to leave. Instead, he went to the door and latched it. He approached the complainant and pushed her onto the bed where he hit her two or three times in the back of the head near her hairline. The complainant asked him to stop. The offender then forced her into the bathroom and pushed her into the shower screen causing her to fall to the floor. She landed on her elbow, causing pain. She got up and they wrestled, and the offender pushed her onto the toilet seat. While on the toilet seat the offender again hit her in the back of her head. The offender said “you are going to die in here today”. He was pacing around the motel room and would not let her leave for approximately half an hour.”

1.    Statement of agreed facts on sentence, par 13.

11. This conduct gave rise to count 3 on the indictment, namely detaining the complainant without her consent with intent to obtain an advantage, namely psychological satisfaction, and causing actual bodily harm, an offence under s 86(2)(b) of the Crimes Act 1900 (NSW). This was the most serious offence with which the applicant was charged, carrying a maximum penalty of 20 years imprisonment.

12. The parties stayed together for two more days, on 4 April moving to a caravan park. On the afternoon of 6 April they decided to end their relationship. However, they spent the night of 6 April together. On the morning of 7 April an argument developed in the course of which the complainant sustained a hand laceration while banging the flat of her hand against a window, causing it to shatter.

13. The agreed facts differed as to the significance of this incident: the complainant later told police she was trying to raise the alarm, but the offender thought “this was simply part of the argument.” He continued to push the complainant, causing her to fall to the ground, and tried to get her into the bathroom and shower area in the cabin. The complainant felt particularly frightened and refused to go. This incident was identified as count 6 on the indictment, a charge of assault laid under s 61(1) of the Crimes Act.

14. The last event appears to have been of some significance to the complainant. After they calmed down, they left together to go to the local shopping centre. While the offender went inside, the complainant ran to the police station and said to the officer on the desk, “Please help me. I’ve just run away from my partner who has really hurt me. He’s kept me hostage and I’m scared he’s going to kill me.”

15. At a medical examination undertaken that afternoon, a doctor noted “the swelling to the back of head, her sore elbow, and a 1 centimetre bruise to her upper arm and two grazes to her back.” [2] She was also treated for the laceration to her hand.

    2.    Statement of agreed facts, par 22.

16. The applicant was arrested on 8 April, charged and refused bail. Further, the police gave an apprehended domestic violence order for the protection of the complainant, prohibiting the applicant from contacting her. The applicant, who had been on parole for earlier unrelated offences, remained, parole revoked, in custody until 24 July.

17. Whilst in custody, the applicant asked the complainant to list her telephone number under a false name so he could have telephone contact with her. She agreed to that, “in part at least because she had been told [the applicant] was having a difficult time in custody and was on suicide watch.” [3] There were then numerous telephone calls between 11 April and 3 May 2016, in the course of which the applicant placed considerable pressure on the complainant to make a statutory declaration saying that the allegations against him were made up and that she wished to withdraw them. On 5 May 2016 the complainant filed a statutory declaration describing her allegations as “false and misleading”.

    3.    Statement of agreed facts, par 24.

18. On 24 May the police interviewed the complainant, at which time she confirmed the accuracy of the statutory declaration. On 24 July 2016 the applicant was released on bail.

19. On 21 and 23 August 2016 the applicant committed further offences against the complainant. On 24 August he was arrested and charged with contravening the apprehended violence order, assault occasioning actual bodily harm, common assault and intentionally choking a person with recklessness. He was also charged with escaping police custody. On 16 November 2016 the applicant was sentenced to an aggregate term of 20 months’ imprisonment commencing on 24 August 2016, with a non-parole period of 15 months terminating on 23 November 2017.

20. The communications leading to the statutory declaration were the subject of count 7 on the indictment, alleging that the applicant was “in constant communication with [the complainant] with intent to cause her, a witness in a judicial proceeding, to give false evidence, intending to procure his acquittal of a serious indictable offence.”

The sentencing

21. On 14 May 2018 the applicant’s trial commenced in the District Court. The following day he entered a plea (for which he obtained a discount of 5%); the sentencing judge applied the discount to each of the putative individual sentences, which were as follows:

Count	Offence	Legislation	Maximum penalty	Putative sentence	Pre-5% discount
1	Intimidate with intent	Personal Violence Act, s 13(1)	5 years	22 months	24 months
2	Intimidate with intent			22 months	24 months
3	Aggravated detain for advantage	Crimes Act, s 86(2)(b)	20 years	45 months	48 months
6	Common assault	Crimes Act, s 61	2 years	10 months	12 months
7	Influence witness – serious indictable offence Form 1: breach of AVO	Crimes Act, ss 323(a) and 324	14 years	45 months	48 months

22. It can be seen that the two most serious offences were aggravated detaining for advantage and influencing a witness to procure the acquittal of a person of a serious indictable offence, for each of which the individual sentence would have been 45 months. Although the subject matter of each of the offences was related to the others, each involved discrete conduct, which could only be described as part of a single course of conduct in the most general sense. Even if the element of accumulation had been limited to 25%, those two offences by themselves would have been equivalent to the non-parole period in fact imposed. The next two most serious offences were those of intimidation each of which was fixed at approximately half of the more serious offences. The common assault resulted in a further halving of the putative individual sentence. Taking the full term of the aggregate sentence as the comparator, it was approximately 54% of the sum of the putative individual sentences.

Challenge to putative sentences for individual offences

23. As counsel for the applicant accepted, the purpose for challenging the indications as to individual sentences (which were not in fact imposed) must be to demonstrate error in the aggregate sentence, which was imposed and from which the appeal lies. In circumstances where, as here, there are a number of separate offences which, dealt with individually, would require a significant degree of accumulation, combined with careful consideration of the potential for reduction in accordance with the principle of totality, it may be difficult to demonstrate that assessment of an individual sentence is “material to the outcome”, namely the length of the aggregate sentence. [4]

    4. PD v R [2012] NSWCCA 242 at [44] (Beech-Jones J); SHR v R [2014] NSWCCA 94; 241 A Crim R 544 at [40] (Fullerton J).

24. With some diffidence, it may be accepted that demonstrated error with respect to particular and significant individual sentences may be capable of affecting the overall outcome in the present case. On that assumption, it is appropriate to have regard to the putative sentences for individual offences.

25. With respect to the indications given in relation to the two counts of intimidation and the common assault, counsel identified the starting point in each case as “close to half the maximum penalty”. This was described as “harsh.” [5] They were described as offences which might usually be dealt with in the Local Court, where they would receive significantly lower custodial terms.

    5.    Applicant’s written submissions, par 54.

26. These submissions do not assist the applicant. First, most of the sentences, even prior to the discounts, were comfortably below 50% of the maximum penalty in each case. Secondly, to describe a sentence as “harsh” or “high” does not demonstrate appealable error. Thirdly, the possibility, even the probability, that such offences would have received lower sentences in the Local Court does not demonstrate appellable error, although it may justify the description of “harsh” or “high”.

27. More significantly, in assessing the objective seriousness of the offences, the sentencing judge noted that counts 1, 2, 3 and 6 were each offences of domestic violence and involved a breach of trust. He continued: [6]

“Further, and as a consequence, the complainant was heavily reliant on the emotional support of [the applicant] at the time of [these offences], since she had just lost custody of her children. Further, since the complainant was otherwise homeless she was also dependent on [the applicant] to not exclude her from his or their short term accommodation at the time of the offences in those counts.”

6.    Sentencing judgment, p 12.

28. The judge referred to authorities in this Court emphasising the need for the court to provide full protection to victims of domestic violence, so far as possible, because such conduct involves a violation of trust and the imposition of physical strength to control and subordinate the other party to an intimate relationship. [7] After referring to the circumstances of count 1 (which had earlier been set out in some detail) the judge stated: [8]

“Having regard to the turbulence of the relationship up to that time, the presence of the syringe, the threat to kill her and the circumstance that the [the applicant] chased the Complainant around the room. Count 1 is an objectively serious example of an offence in contravention of s 13(1) despite the consideration that the Complainant may otherwise have regarded a syringe as an innocuous item of drug paraphernalia.”

7. The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [28]; R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 at [67], [77]; R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 at [41].

8.    Sentencing judgment, p 13.

29. As to count 2, the judge stated that (i) the applicant’s response to the complainant’s threat to take her own life, “saying that he would kill them both”, (ii) combined with the complainant’s knowledge that he had the cheese knife and (iii) the applicant continuing his threatening behaviour until she was ultimately able to flee to a nearby service station, rendered count 2 an objectively serious example of such an offence.

30. Referring to the facts of count 6, that too was identified as “an offence of some significant objective seriousness for offences in contravention of s 61.”

31. There are two factors to take into account in considering the challenge to the sentences proposed for these offences. First, before identifying them as erroneously high, it is necessary to find error in these assessments of their objective seriousness. That a court of appeal will be slow to interfere with the exercise of such an evaluative judgment is well established. [9]

    9. Mulato v R [2006] NSWCCA 282; Kiernan v R [2016] NSWCCA 12.

32. Secondly, it is clear from the reasoning of the sentencing judge that he assessed the seriousness of the charged offences having regard to the surrounding circumstances, which may have given the offending conduct a higher level of threat and imposition on the complainant, than would similar conduct in a less turbulent relationship. The result is that, to avoid double counting a continuing element of the offending course of conduct, proper allowance would need to be made in determining questions of concurrence or accumulation; the approach taken, however, demonstrates no error in the individual sentences identified by the sentencing judge in respect of these matters.

33. Similar problems arise with a challenge to the two more serious offences. Count 3 (aggravated taking and detaining) involved being locked in a room for about 30 minutes, with limited physical harm being inflicted; however, the complainant was hit three or four times on the back of the head and told she was going to die, which indicated an escalating level of seriousness in the attacks. The judge described it as an offence of “substantial objective seriousness”. [10] Nevertheless, the sentence itself, being precisely 20% of the maximum penalty before discounting, did not suggest that such an assessment was erroneous.

    10.    Sentencing judgment, p 14.

34. Count 7 involved an offence of seeking to persuade the complainant to give false evidence, or withhold evidence, about the subject matter of her complaint, so as to allow the applicant to obtain bail and avoid a gaol sentence. The judge described the offending conduct as having overtones of domestic violence in that the applicant, although in custody, was continuing “to exert the power, influence and control that he had established over the complainant, as a result of her dependency upon him.” [11] He described the offence as one of “substantial objective seriousness”, referring to the observations of this Court in Warby v R [12] and Evans v R. [13] Both of those cases involved less serious conduct, charged by reference only to s 323(a) (being offences not intending to procure the acquittal of a person of any serious indictable offence) and carrying a maximum penalty of 7 years imprisonment. Warby involved a two requests, made in person to a potential witness against his involvement in a robbery, inviting him to say, falsely, that the accused was not involved in the robbery. There was no threat accompanying the request. Nevertheless, the court imposed a sentence of 16 months imprisonment with a 12 month non-parole period. In Evans the conduct involved 16 text messages from the offender to his former partner. The offender was subject to an aggregate sentence, the judge indicating that the offence under s 323(a) would have carried a sentence of 3 years 2 months imprisonment. The text messages included no threats, and no invitation to lie. This Court found that the starting point for the offence should have been 15 months.

    11.    Sentencing judgment, p 12.

    12. [2007] NSWCCA 173; 171 A Crim R 575.

    13. [2017] NSWCCA 281.

29. The judge later referred to three other decisions involving more serious offences, [14] which were also relied on by the applicant in this Court. The first, R v Burton,[15] involved circumstances which were not notably dissimilar to the present. It involved an appeal by the Director of Public Prosecutions against the manifest inadequacy of sentences imposed on the offender. Of the seven counts, five involved assault or assault occasioning actual bodily harm, in a domestic context. Another count involved an attempt to have the victim withdraw her complaints. As in this case, the conversations occurred whilst the offender was in custody and were recorded. On the last count this Court imposed a sentence of 2 years imprisonment, after applying a 25% discount. [16]

    14.    Sentencing judgment, p 31.

    15. [2008] NSWCCA 128.

    16.    Burton at [121] and [130].

30. There is little point in seeking to compare the seriousness of the statements made in the telephone calls in the two cases, except that, on their face, it cannot be said that the conduct in the present case was less serious. It is difficult to see what assistance the applicant gets from a comparison of a sentence with a starting point of 2 years 8 months as against the starting point in the present case of 4 years, he being charged with an offence carrying twice the maximum penalty of the offence for which Mr Burton was prosecuted.

31. Cross v R [17] involved an appeal against the severity of a sentence for one offence under s 323(a), and s 324. The sentencing judge had imposed a sentence of 5 years imprisonment, with a non-parole period of 3 years. This Court reduced the sentence to imprisonment for 3 years 6 months, with a non-parole period of 2 years. One of the factors which weighed in favour of the reduction was that the primary offences committed, involving serious assaults, resulted in a sentence half the length of the sentence based on the telephone calls which were not accompanied by any threats of violence. [18] It does not assist the applicant.

    17. [2016] NSWCCA 214.

    18.    Cross at [85]-[86].

32. The third case relied upon by the applicant was Asplund v R. [19] The offender in that case was charged with quite different offences. While the offender was being investigated for offences of child grooming, a search warrant was executed and his computer seized, revealing possession of child pornography. He was then charged in relation to that material. After being charged, he sought to have his son take the blame for much of the material by providing two written statements which he dictated. He was sentenced to 4 years imprisonment with a non-parole period of 1 year 6 months; this Court declined to grant an extension of time to appeal on the grounds that the appeal had no prospects of success.

    19. [2014] NSWCCA 237.

33. A comparison of the circumstances in these cases does not demonstrate that the individual sentence indicated by the sentencing judge was manifestly excessive. A true comparison would require various factors to be taken into account, including the subjective circumstances of the respective offenders, their criminal records and other factors. Although the applicant’s sentence may be higher than those imposed for apparently similar conduct (as in Burton), not only do such cases not demonstrate manifest excess, but far less do they demonstrate that the sentence was excessive to such an extent that it raised the aggregate sentence to a point which was beyond a legitimate range for the overall offending.

Failure to give effect to findings as to subjective circumstances

40. There is no complaint about the findings of the sentencing judge in relation to the applicant’s background. The applicant gave evidence and tendered a report by Ms Lucas, which contained his history, as recounted to her. In short, he grew up in Dubbo in the 1980s, with his mother, father and elder brother. When he was about seven, his father was murdered and his mother began to drink heavily thereafter. His elder brother resorted to the use of drugs and the applicant followed suit. When he was about 10 or 12 his mother formed a relationship with a man who was aggressive and violent towards his mother, although he only threatened violence towards the children. The elder brother moved out, and the applicant followed him to a house which was frequented by drug users. He commenced drinking alcohol at around eight years of age, cannabis when he was nine years, smoking that drug daily by the time he was 11. Between 14 and 15 he began using amphetamines, quickly transitioning to intravenous use. He used heroin when he was 16 and commenced methamphetamine at around 20 years of age. [20] In making his determination, the judge stated: [21]

“While the Offender has a subjective case that includes a number of most lamentable considerations the Court must not allow those considerations to overwhelm the requirement for the imposition of a sentence which reflects the appropriate balance between all the relevant objective and subjective circumstances.”

20.    History recorded by Ms Lucas, pars 25-29, accepted by judge: Sentencing judgment, p 21.

21.    Sentencing judgment, p 32.

41. In discussing the applicant’s moral culpability, the judge also stated: [22]

“The deprived upbringing of the Offender attracts the operation of the principles referred [to] by the High Court of Australia in Bugmy ..., Munda … and the Court of Criminal Appeal in Fernando …. The early onset of drug and alcohol abuse also attracts the operation of the principles referred to by the Court of Criminal Appeal in Henry….

Such considerations serve to ameliorate the level of moral culpability which the Offender has for the index offences. However, after making allowance for those considerations the Court is satisfied that the Offender nevertheless has a substantial level of moral culpability for each of the index offences.”

22.    Sentencing judgment, p 26.

42. A passage in the judgment of Wood J in R v Fernando [23] was cited with approval by the High Court in Bugmyv The Queen:[24]

“The propositions stated in Fernando are largely directed to the significance of the circumstance that the offender was intoxicated at the time of the offence. As Wood J explained, drunkenness does not usually operate by way of excuse or to mitigate an offender's conduct. [25] However, his Honour recognised that there are Aboriginal communities in which alcohol abuse and alcohol-related violence go hand in hand. [26] His Honour considered that where an offender's abuse of alcohol is a reflection of the environment in which he or she was raised it should be taken into account as a mitigating factor. [27] To do so, he said, is to acknowledge the endemic presence of alcohol in Aboriginal communities and:[28]

‘the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.’”

23. (1992) 76 A Crim R 58 at 62.

24. (2013) 249 CLR 571; [2013] HCA 37 at [38].

25. R v Fernando (1992) 76 A Crim R 58 at 62 (E).

26. R v Fernando (1992) 76 A Crim R 58 at 62 (C).

27. R v Fernando (1992) 76 A Crim R 58 at 62 (E).

28. R v Fernando (1992) 76 A Crim R 58 at 62-63 (E).

43. The Court further stated:

“[40]   Of course, not all Aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol-fuelled violence. However, Wood J was right to recognise both that those problems are endemic in some Aboriginal communities, and the reasons which tend to perpetuate them. The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.”

44. How this principle was to be applied in cases involving domestic violence within an Aboriginal community, was discussed by the High Court in the companion case, Munda v State of Western Australia. [29] Mr Bugmy had attacked a prison officer; Mr Munda had killed his de facto wife. The Court addressed the tension between accepting a reduction in moral culpability due to the disadvantaged background of the offender, and the need to provide the victim of violence with “such protection and vindication as the criminal law can provide.”[30] This language was explicated as the need “to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence.”[31] At the same time, the Court accepted that general deterrence may have little role in sentencing for a crime which is not pre-mediated and where “prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of misconduct.”[32]

    29. (2013) 249 CLR 600; [2013] HCA 38.

    30. Munda at [53].

    31. Munda at [54].

    32. Ibid.

45. These principles reflect an irresolvable tension; it will only be in an unusual case that an appeal court will be able to conclude that a sentencing judge, who has recognised the relevant principles, has in some sense failed to apply them, so that the error is detectable in the sentence imposed. This is not such a case.

The operation of the aggregate term

46. This aspect of the appeal was not entirely coherent. It started with the proposition that “the effect of the aggregate sentence in conjunction with the Local Court offences and break and enter offences will see the applicant gaoled since 24 July 2014 until at least 8 March 2022 – with the exception of 7.5 months in the community.”

47. The second step was a conclusion to be drawn from that fact:

“Therefore, a sentence of this kind brings with it a heightened risk of institutionalisation and sense of hopelessness that may destroy an expectation of a useful life upon release …”.

48. Reference was made to observations in R v MAK; R v MSK [33] using similar language as relevant in considering the operation of the totality principle, on the basis that such consequences increase the severity of the sentence being served and may destroy the prospects of rehabilitation thereafter.

    33. [2006] NSWCCA 381 at [17]; 167 A Crim R 159.

49. Thirdly, reference was made to other cases involving serious offences of domestic violence.

50. The second step, involving the underlying concern of the totality principle, does not follow consequentially from the first step. It is not the absolute length of the sentence which must be taken into account; the question is whether the aggregation of a number of sentences is “a just and appropriate measure of the total criminality involved”, as noted by McHugh J in Postiglione v The Queen. [34] An eight year sentence for particular offending (being the period identified in the first step of the argument) may be unjust in some circumstances, but inadequate in others.

    34. (1997) 189 CLR 295 at 307-308; [1997] HCA 26.

51. Further, the third step in the argument was separate from and not self-evidently dependent upon the aggregation of sentences referred to in the first step.

52. The fresh issue sought to be raised was that identified in the first step, and involved a question as to whether the judge should have given further consideration to the aggregation of the Local Court offences, and the break and enter offences, in sentencing for the counts on the indictment before him.

53. This submission may be taken in two stages. The Local Court offences involved similar conduct to those on the indictment, in relation to the same victim. It was clearly appropriate that the sentences imposed for those offences be taken into account in sentencing for the offences on the indictment. In fact, that was done. The applicant had been in custody since 14 September 2016 for the offences dealt with in the Local Court, the sentences being backdated to 24 August, a date when he was at large. Those sentences were imposed before the present sentence. Those sentences were taken into account by fixing the commencement date for the aggregate sentence on the indictment as 9 July 2017, a date which was proposed by the prosecutor and so far as the month was concerned, accepted by the applicant. It provided a degree of concurrency with the non-parole period imposed in the Local Court. The applicant cannot complain as to that issue.

54. The break and enter offences were unrelated to the offences for which he was sentenced in the District Court. However, it is true that the commission of the first offences on 1, 2, 3 and 7 April, the last resulting in his arrest, led to the revocation of the parole which he was then serving. He served the balance of parole (3 months 17 days) before being released on bail on the April offences. He was then at large between 24 July and 24 August, when he was re-arrested. He spent a day in custody and was again released on bail.

55. The applicant’s submissions did not demonstrate that no account was taken of the fact that the revocation of parole had been caused by the first four offences on the indictment. That was because the period was not disregarded. The prosecutor’s submissions on sentence had noted that there was a period of 88 days during which the offender was refused bail with respect to the offences on the indictment and was serving his earlier sentence, parole having been revoked. The prosecutor submitted that this period should be split 50-50 so that a backdate of 44 days would be allowed for the offences on the indictment. [35] This calculation formed part of the recommendation that an aggregate sentence commence from 12 July 2017, which, bar three days, was the figure accepted by the sentencing judge. This approach was entirely conventional and demonstrated no error.

    35.    Crown submissions on sentence, par 78.

56. So far as, separately, the submissions sought to demonstrate that the sentence was manifestly excessive by reference to other sentences for similar offending (the third step in the argument), the submissions run into the same difficulty as the submission discussed above with respect to particular putative individual sentences. Two particular decisions were relied upon, namely Burton (discussed above) and R v Hamid. [36] While the applicant correctly acknowledge that these cases did not demonstrate a relevant range, it is true that they can be relied upon for statements of principle. However, the statements of principle with respect to sentencing for domestic violence cases do not assist the applicant. In Hamid, at [67]-[76], Johnson J set out a list of authorities in which the seriousness of domestic violence was emphasised, and the need for denunciation of such offences and for deterrence from such offending, were recurrent themes. To the extent that it is relevant, the offender in Hamid was sentenced on nine counts of domestic violence to a period of imprisonment for 6 years with a non-parole period of 4 years 3 months. [37] This material did not demonstrate that the sentence imposed on the applicant was manifestly excessive.

    36. [2006] NSWCCA 302; 164 A Crim 179.

    37. Hamid at [149].

Conclusions

57. Having addressed the issues raised by the applicant, it should be noted, as the applicant recognised, that the sentencing judgment was carefully and correctly expressed and addressed all of the issues which needed to be addressed. On its face it revealed no error. Accordingly, although there should be a grant of leave to appeal, the appeal must be dismissed.

58. The Court should make the following orders:

1. Grant the applicant leave to appeal against the aggregate sentence imposed on him in the District Court on 8 March 2019.

2. Dismiss the appeal.

59. MACFARLAN JA: I agree with Basten JA.

60. CAMPBELL J: I agree with Basten JA.

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Endnotes

Decision last updated: 20 December 2019