Suksa-Ngacharoen v R

[2018] NSWCCA 142

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Suksa-Ngacharoen v Regina [2018] NSWCCA 142
Hearing dates:	4 June 2018
Date of orders:	10 August 2018
Decision date:	10 August 2018
Before:	Leeming JA and Bellew J at [1] Wilson J at [24]
Decision:	1. Grant leave to appeal. 2. Appeal allowed. 3. Quash the sentence imposed on 28 October 2016, and in lieu thereof, sentence the offender as follows: (a) Call-up for Common Assault (breach s 9 bond):   3 months imprisonment to date from 10 March 2014, expiring on 9 June 2014. (b) Call-up for Contravene ADVO (breach s 12 bond): 7 months imprisonment to date from 10 March 2014, expiring on 9 October 2014. (c) Contravene ADVO: 18 months imprisonment to date from 10 July 2014, expiring on 9 January 2016. (d) Cause grievous bodily harm by explosion: 16 years imprisonment to date from 10 March 2015, expiring on 9 March 2031; with a non-parole period of 11 years, expiring on 9 March 2026. 4. The total effective sentence is 17 years imprisonment, with a non-parole period of 12 years. The earliest date the offender is eligible for release on parole is 9 March 2026.
Catchwords:	CRIME – sentence appeal – domestic violence offences – cause grievous bodily harm by explosion – breach apprehended domestic violence order – call-ups for breaches of bonds – question of procedural fairness – use of “agreed facts” and whether sentencing court bound by them - question of extent of premeditation – assessment of objective gravity – assessment of remorse and rehabilitation – manifest excess
Legislation Cited:	Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	Alvares v R; Farache v R [2011] NSWCCA 33 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Chow v Director of Public Prosecutions & Anor (1992) 28 NSWLR 593 Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41 Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198 Jolly v R [2013] NSWCCA 76 Kendall v R [2015] NSWCCA 13 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 MLP v R [2014] NSWCCA 183 O’Neill-Shaw v The Queen [2010] NSWCCA 42 Pleasance v R [2016] NSWCCA 113 Porter v R [2008] NSWCCA 145 R v Dinh [2010] NSWCCA 74 R v Dodd (1991) 57 A Crim R 349 R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v Palu [2002] NSWCCA 381; 134A Crim R 174 R v Shorten (unreported decision of the NSW Court of Criminal Appeal, 10 September 1997) TYN v R [2009] NSWCCA 146 Vaiusu v R [2017] NSWCCA 71 Veen v The Queen (No 2) (1988) 164 CLR 465 Vuni v R [2006] NSWCCA 171 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category:	Principal judgment
Parties:	Surachet Suksa-Ngacharoen – Applicant Regina – Respondent
Representation:	Counsel: Mr S. Torpey – Applicant Ms M. England – Respondent (Crown)   Solicitors: Christine Iwaszkiewicz of CMI Law Firm – Applicant Solicitor for Public Prosecutions – Respondent (Crown)
File Number(s):	2014/73668
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court Jurisdiction: Crime Date of Decision: 28 October 2016 Before: Syme DCJ File Number(s): 2014/73668

Judgment

1. LEEMING JA and BELLEW J:    We have had the very considerable advantage of reading the judgment of Wilson J in draft. We do not need to add to her Honour’s summary of the offending, the applicant’s case on sentence and the parties’ submissions in this Court. We agree, for the reasons her Honour gives, that proposed grounds 1-6 are not made out. We have come to a different view, however, in relation to proposed ground 7, which is that the sentence was manifestly excessive.

2. The total sentence imposed was 19 years imprisonment, from 10 March 2014 until 9 March 2033. The sentence for causing grievous bodily harm by explosion contrary to s 46 of the Crimes Act 1900 (NSW) was 18 years imprisonment commencing 10 March 2015, with a non-parole period of 13 years and 3 months. That represents a small departure from the statutory ratio required by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), being approximately 73.6% rather than 75%. The sentencing judge found special circumstances but said there would only be a “marginal” adjustment, having regard to the length of the sentence. The total effective non-parole period is 14 years and 3 months, which is precisely 75% of the total effective sentence of 19 years. There may be a question whether it is open to find special circumstances and vary the non-parole period so as to achieve a total effective non-parole period of 75% of the total effective sentence, but as no such point was taken we take the matter no further.

3. The sentence of 18 years imprisonment for the s 46 offence incorporated a discount of 25% for the applicant’s guilty plea. The starting point was therefore 24 years imprisonment. As this Court held in TYN v R [2009] NSWCCA 146 at [33]-[34], where (as here) there is no dispute as to the reductions in sentence to which an offender is entitled, it is necessary to have regard to the undiscounted starting point, lest the discounts be used to conceal and thereby sustain what might otherwise be a manifestly excessive sentence.

4. The maximum penalty for the s 46 offence is 25 years imprisonment.

5. The applicant relied on sentencing statistics from January 2008 to January 2017, which showed that “the sentence imposed on the applicant is the most severe within the sample”. As much may be accepted, but we regard it as of no weight. The sample size was miniscule (three offences apart from the applicant’s offending) and the individual sentences turned upon their own facts. Moreover, it has been observed that the fact that a particular sentence imposed may be the highest in a statistical sample does not lead to a conclusion that it is manifestly excessive. As a matter of common sense, there will always be a sentence which constitutes the longest imposed for particular offending: MLP v R [2014] NSWCCA 183 at [46] citing Jolly v R [2013] NSWCCA 76 at [75]. There is no reason to doubt that the circumstances of the applicant’s offending, which were horrendous, warranted a more severe sentence than the other three cases.

6. However, the applicant made a further submission:

“[T]he extent to which her Honour receded from the maximum penalty (by 4%) does not appropriately reflect the Applicant’s circumstances as assessed by her Honour which included the fact that he maintains the support of his family, that he is facing language and cultural difficulties in custody, that he has ceased using drugs and is determined not to use drugs in the future, that he is motivated to address his education and rehabilitation in custody, that prior to committing the series of offences against the victim he had no criminal record and that he was sorry for committing the offence. Whilst it cannot be concluded which particular factor or factors were improperly treated by her honour, it [is] submitted that the recession from the maximum prescribed penalty was so slight that there must have been some misapplication of principle in sentencing the Applicant.”

7. It is as well to expand the matters summarised in that submission.

1. First, the language and cultural difficulties reflected the sentencing judge’s finding that those matters were “difficult for him at a personal level”, since “almost no one speaks his language”, and he “cannot participate in normal activities such as reading due to lack of Thai language books”. The sentencing judge observed that “[a]ny humane observer would accept that his partial isolation in custody will make his custodial term somewhat more trying than for others.”

2. Secondly, in terms of education and rehabilitation, the sentencing judge found that “[h]e has obtained work and has undertaken as much formal rehabilitation and study as has been available at the moment, including the EQUIPS course addressing some drug and violence issues.”

3. Thirdly, although the sentencing judge made no finding as to the use of drugs, her Honour recorded that the applicant said he had not used drugs in custody, that this was not challenged by the Crown, and that he said that he was determined not to use drugs in the future.

4. Fourthly, there was no dispute that, save for the offences for which he was sentenced, the applicant had no criminal record.

5. Fifthly, although the applicant expressed sorrow for his conduct, and the sentencing judge found that his prayers for his victim’s recovery were sincerely meant, her Honour found that this did not amount to remorse for the purposes of sentencing.

8. “[T]he task for the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all”: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [75] (original emphasis). Those relevant factors include, obviously, subjective factors of the kind to which the sentencing judge made reference as set out in [7] above. In Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27], French CJ, Hayne, Kiefel, Bell and Keane JJ said:

“As this Court has explained on more than one occasion, the factors bearing on the determination of sentence will frequently pull in different directions. It is the duty of the judge to balance often incommensurable factors and to arrive at a sentence that is just in all of the circumstances.” (citations omitted)

9. Those passages or their substance were reiterated and endorsed in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41 at [4]-[6] (Kiefel CJ, Bell and Keane JJ) and [79] (Gageler and Gordon JJ).

10. Sentencing judges are of course to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. The fact that the sentence is more severe than another judge would impose is not to the point; there is no single correct sentence. And deference should be given to the fact that the sentencing judge has seen the applicant give evidence. However, we have concluded that this is a case where the applicant has established that the sentence was manifestly excessive. There was, in our respectful view, an unarticulated error of principle, insofar as the favourable findings summarised above, all of which pointed to a lesser sentence, were not reflected in the sentence in fact imposed. Those findings could not have been reflected in a sentence as severe as 18 years imprisonment, with an undiscounted starting point of 24 years imprisonment.

11. The Crown made a submission that no lesser sentence was warranted in law. Probably, that submission was intended as an answer to other grounds of appeal. It was not elaborated. The Crown’s submission cannot withstand a conclusion that the sentence imposed was manifestly excessive.

12. Accordingly, we would grant leave, allow the appeal, and set aside the sentence imposed. In those circumstances, it becomes necessary to resentence.

13. The applicant’s affidavit sworn on 4 June 2018 was tendered on the “usual basis” (as described in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25) against this eventuality. By the time it was sworn, he had been in custody for more than 2 years. No application was made to cross-examine him, nor was there any evidence adduced by the Crown. Thus his affidavit was unchallenged and undisputed.

14. The affidavit records that he had participated in a variety of courses (a Positive Lifestyle program run by the Salvation Army, a series of Bible study courses, a spelling course and a Work Health and Safety course). Such matters point favourably in terms of his prospects of rehabilitation. He has been unable to do other courses, we would infer at least in part because of the length of his sentence. He says that he has not used drugs at all, despite having plenty of opportunity to do so; he said that the prisoner with whom he shared a cell for six months used drugs on a daily basis. He says:

“Since the incident where I committed the most horrendous crime against Nataya, the shock of what I was capable of doing has stopped me from using drugs. I take full responsibility for having imposed unbearable suffering upon my girlfriend, Nataya, and I think about what I did all the time. I am alone with my conscience and struggling to deal with things.”

15. The applicant received visits from his sister every three or four months, and his parents once a year. He says that more frequent visits are not possible because of the cost and distance (for the most part, he has been imprisoned in central New South Wales).

16. The applicant says there are no other Thai speaking inmates in his correctional centre, although his English has improved. He says that he ate nothing but Thai food before entering the prison system, but now has no access to it. He says “This has been a hardship but I do not really like to say it because it is nothing compared to the hardship and suffering that I have caused Nataya.”

17. The applicant says:

“I accept responsibility for what I did to Nataya. I accept that I have caused unbearable suffering to the person who was the closest living human being to me at the time.”

18. The affidavit goes on to attempt to explain how he came to attack his victim. He says: “I cannot understand what came about me to cause me to do what I did.” He says that if there were anything that he could do to change things he would, although he accepts that that was no excuse for his behaviour and the suffering he has inflicted upon her. His affidavit concludes:

“I am no longer an unfeeling man. I am a broken man who accepts responsibility for an evil act which is not something the man I am today would be capable of. I accept full responsibility for my actions and believe it was drug induced numbness that caused me to be capable of that horrible crime.”

19. The degree of insight and remorse, although untested, exceeds that displayed before the primary judge. The Crown did not suggest that it was other than genuine. Moreover, the resentencing by this Court is done with the advantage of almost two years confirmation of the matters (such as drug use, participation in programs, support of family) raised before the primary judge.

20. None of those matters detracts from the fact that the objective seriousness of the applicant’s offending is, as the sentencing judge said, among the most serious imaginable. However, those matters all point to a somewhat lesser sentence than was imposed at first instance.

21. There is no reason to depart from the sentences imposed by the sentencing judge in relation to the other offences, or the partial accumulation. As Wilson J observes, the other offences were themselves serious, and the applicant’s breach provided the occasion for his attack.

22. In relation to the offence of causing grievous bodily harm by explosion contrary to s 46 of the Crimes Act, which carries a maximum sentence of 25 years, we would start with a sentence of imprisonment of 21 years and 4 months, to which a discount of 25% for the applicant’s guilty plea should be applied, resulting in a head sentence of 16 years imprisonment. The sentencing judge made a finding of special circumstances. The same finding should be made in this Court, which also has the advantage of the additional information now available, as to the difficulties faced by the applicant during his incarceration and his progress towards rehabilitation since being taken into custody as disclosed in the affidavit material. The non-parole period will be 11 years, representing a ratio to the head sentence of just under 69%.

23. We propose the following orders:

1. Grant leave to appeal.

2. Appeal allowed.

3. Quash the sentence imposed on 28 October 2016, and in lieu thereof, sentence the offender as follows:

(a) Call-up for Common Assault (breach s 9 bond):   3 months imprisonment to date from 10 March 2014, expiring on 9 June 2014.

(b) Call-up for Contravene ADVO (breach s 12 bond): 7 months imprisonment to date from 10 March 2014, expiring on 9 October 2014.

(c) Contravene ADVO: 18 months imprisonment to date from 10 July 2014, expiring on 9 January 2016.

(d) Cause grievous bodily harm by explosion: 16 years imprisonment to date from 10 March 2015, expiring on 9 March 2031; with a non-parole period of 11 years, expiring on 9 March 2026.

4. The total effective sentence is 17 years imprisonment, with a non-parole period of 12 years. The earliest date the offender is eligible for release on parole is 9 March 2026.

24. WILSON J: Surachet Suksa-Ngacharoen appeared for sentence before her Honour Judge Syme in the District Court of New South Wales on 28 October 2016 with respect to an offence of causing grievous bodily harm (“GBH”) by the explosion of a substance, contrary to the provisions of s 46 of the Crimes Act 1900 (NSW). Such an offence carries a maximum penalty of 25 years imprisonment. There was a further related (summary) charge of contravening an apprehended domestic violence order, which had been transferred to the court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), for sentence. An offence of that nature is contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and, upon conviction, carries a maximum penalty of 2 years imprisonment, or a fine of 50 penalty units, or both.

25. At the request of the sentencing court, and with the concurrence of the parties, her Honour also dealt with two call-ups, relating to the breach of bonds earlier imposed upon the applicant for offences of contravening an apprehended domestic violence order, and common assault (s 61 of the Crimes Act). These offences, which related to the same victim, had been dealt with in the Central Local Court on 21 February 2014 by the imposition of, respectively, a sentence of 7 months imprisonment suspended for its term pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and a good behaviour bond for 12 months pursuant to s 9 of the same Act. Both bonds had required the applicant to submit to the supervision of the Probation Service, and obey all reasonable directions as to counselling, educational development, and drug and alcohol counselling. By committing the offences referred to at [3] above, the applicant had breached each of these bonds.

26. The following sentences were imposed.

Offence

Sentence Imposed

Call-up for Common Assault

(breach s 9 bond)

3 months imprisonment to date from 10 (or 7) March 2014, expiring on 9 June 2014

Call-up for Contravene ADVO

(breach s 12 bond)

7 months imprisonment to date from 10 March 2014, expiring on 9 October 2014

Contravene ADVO

18 months imprisonment to date from 10 July 2014, expiring on 9 January 2016

Cause GBH by explosion

18 years imprisonment to date from 10 March 2015, expiring on 9 March 2033; with a non-parole period of 13 years and 3 months, expiring on 9 June 2028

27. The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed for the s 46 offence of causing GBH by explosion. He advances the following grounds.

1. “There was a denial of procedural fairness as a consequence of her Honour failing to warn the Applicant’s counsel as to a proposed finding of premeditation to be made on the basis of additional material to the agreed statement of facts;

2. her Honour erred in finding that the offence was premeditated to the extent that the applicant intended to inflict serious harm and disfigurement to the victim for some time;

3. her Honour erred by taking into account the Applicant’s record of previous convictions to increase the objective gravity of the offence for which the Applicant was to be sentenced;

4. her Honour failed to properly assess the applicant’s evidence of remorse;

1. her Honour erred in finding that the applicant’s prospects of rehabilitation were unknown;

2. her Honour erred by partly accumulating the sentence for the substantive offence [the s 46 offence] on the related offence of contravene ADVO; and

3. the sentence was manifestly excessive”.

28. The proposed ground 2 is given above in the form it took after the applicant was granted leave to amend it at the hearing of the application.

The Circumstances of the Offending

29. The Crown tendered a Statement of Agreed Facts to the sentencing court. The sentencing judge found the facts as agreed between the parties, from which the following summary is drawn.

30. The applicant and the victim of the offences, Ms Natayo Sripho, were formerly involved in a relationship. The relationship ended in November 2013, because of an assault upon Ms Sripho by the applicant. He was charged over the incident on 5 November 2013 and, on 18 December 2013, he was convicted of the offence of common assault and fined the sum of $880. An apprehended domestic violence order (“ADVO”) was imposed upon him for the protection of Ms Sripho.

31. Two months later, on 20 February 2014, the applicant was charged with another assault upon Ms Sripho, and with contravening the ADVO. He was convicted, and the s 9 and s 12 bonds that were before her Honour were imposed.

32. The offence of cause grievous bodily harm by explosion occurred on Friday 7 March 2014. At that time, Ms Sripho was residing in a unit in an apartment building located on Castlereagh St in Sydney, on a secure access floor. The applicant did not have access to this apartment.

33. During the course of the day, the victim and the applicant exchanged multiple text messages and phone calls, and arranged to meet at Ms Sripho’s apartment complex so that the applicant could provide Ms Sripho with some money to assist with her living expenses. Ms Sripho deliberately made the arrangement to meet in the public area on Level 6 of the building, as she believed she would be safe if in proximity to other people.

34. At some time that day, the applicant purchased one litre of methylated spirits from a local supermarket.

35. At around 6pm, the applicant was captured on CCTV camera footage taking the lift to Level 6 of Ms Sripho’s apartment building, carrying in his hand a Mount Franklin brand water bottle. The bottle in fact contained a quantity of methylated spirits rather than water. He was observed by witnesses to be yelling aggressively into his mobile phone while standing in the hallway of Level 6.

36. Having received this call, alerting her to the applicant’s arrival in the building, Ms Sripho went to the lobby area on Level 6 and met with him. Without warning, the applicant doused Ms Sripho with methylated spirits from the water bottle, with liquid landing on her chest, neck and arms, and being absorbed into her clothes. Some of the liquid also landed on the applicant’s arms. The applicant said, “Why have you done this to me?”, before producing and igniting a cigarette lighter, causing the methylated spirits to catch fire.

37. The victim’s chest, face, head, hair, neck and arms caught fire, causing her immediate and immense pain. She escaped the lobby of Level 6, but collapsed in front of a gymnasium, located on the same level. She was observed to be well alight with flames leaping to heights of half a metre to one metre from her body. The heat from the fire was such as to trigger the building’s fire sprinkler system on the sixth floor.

38. Bystanders attempted to assist Ms Sripho by suffocating the flames with towels.

39. The victim remained under the sprinkler water for approximately five minutes, before being escorted to the reception lobby, where she was met by members of the fire brigade. She was treated at the scene, and then conveyed to St Vincent’s Hospital by NSW Ambulance officers and stabilised, before being conveyed to Concord Hospital Burns Unit for specialised care.

40. The applicant, who had also caught fire, removed his shirt and cap and stood under a sprinkler on Level 6, before he fled the scene. He caught a taxi to Camperdown and then made his way to Wattle St, Ultimo. An ambulance was called to the scene by members of the public who noticed that the applicant had suffered burns to his arms and, soon after, police attended the location and arrested the applicant.

41. The applicant was conveyed under police guard to the Royal North Shore Hospital to be treated for his injuries. He was discharged three days later into police custody. Having sought the assistance of a Thai interpreter, and legal advice, he refused to be interviewed.

The Injuries to the Victim

42. At Concord Hospital, Ms Sripho remained in a critical but stable condition, in an induced coma, for several weeks. She suffered a mixture of full and partial burns to about 40% of her body, of second and third degree-thickness, across her face, neck, upper body, arms and legs. She remained in hospital for seven and a half months until 22 October 2014 when she was transferred to a rehabilitation facility. She has since undergone several bouts of surgery in an attempt to stabilise her injuries.

43. Much of the damage caused to Ms Sripho is permanent. At the sentencing hearing, the Crown tendered a report from Dr Brian Zeman, a Rehabilitation Physician specialising in treatment of burns, who examined Ms Sripho upon her admission to Ryde Hospital on 1 August 2014. He noted that the patient had burns and scarring to her face, neck, chest, arms, and hands, as well as contractures and healing areas. Finger deformities were identified, which caused a reduced range of movement.

44. A further medical report from Professor Peter Maitz dated 30 August 2016, notes his observations of extensive burns to Mr Sripho’s “face, chest, neck, abdomen, both thighs, both upper limbs including hands and fingers” upon admission to Concord Hospital Burns Unit on 7 March 2014, with 40% of her total body surface area affected. Dr Maitz describes her treatment to that date as requiring intubation, ventilation, multiple surgical interventions for skin grafts and scar releases, a tracheostomy due to severe sepsis, and difficult and complex pain management. He described Ms Sripho’s injuries as “life threatening”. He concluded that these injuries would have “life-long” implications for Ms Sripho, including severe scarring to her face, neck, chest, arms and legs, ongoing issues with temperature control, itch and stiffness, and obvious permanent scarring and disfigurement.

45. In addition, the Crown relied on a report written by Dr Frank Li, a Senior Burns Physiotherapist at Concord Hospital, dated 30 August 2016. In his report, Dr Li describes how, following her discharge from Concord Hospital in August 2014, Ms Sripho continued to attend Concord Hospital out-patient physiotherapy program twice per week. He observed that Ms Sripho continues to suffer from tightness around her neck resulting in limited rotation and side flexion. She has extensive scar tissue across her chest and lower neck, which will require ongoing laser treatment. She has contractures in her upper limbs with significantly limited movement in the left shoulder, and reduced right and left hand function due to an inability to turn her forearms and hands completely. Further major surgery will be needed to attempt to address the problem. Ms Sripho also suffers from a retracted left thumb and two webbed fingers on her left hand. She is unable to fully close her left hand, and has no opposable movement in it. She cannot pick up smaller objects with her left hand.

46. Despite treatment, there has been no improvement in flexion and movement in her shoulder, forearms and hands. Present treatment can do no more than maintenance. Further surgeries will be necessary, together with other treatments.

47. Referring to a Victim Impact Statement from Ms Sripho tendered by the Crown on sentence, her Honour reflected that “her life is detrimentally affected in every way”, including an inability to work, her dependence on assistance to complete daily tasks, permanent disfigurement and partial hearing loss. Her Honour surmised that “her life is one of ongoing pain, disfigurement and treatments aimed at marginally improving her condition” and that mentally, “she suffers from loss of confidence, fear of others, anxiety and symptoms of depression.” Ms Sripho said that she had “lost her will to live”, and that the psychological impacts had been particularly devastating as “worst of all … it was a loved one who perpetrated the violence”.

The Applicant’s Case on Sentence

48. The applicant gave evidence in court on sentence.

49. The applicant also relied on a letter (in translation) that he had written to the court, undated and titled “Dear Judge with the highest respect”, which expressed his “utmost sadness, sorrow and how shocked I feel towards the violence incident that occurred”. In the letter, he contended that his conduct was perhaps a result of his “serious drug addiction” and continuous use of “ice” in the preceding days. He asserted that drug use “made me lose my mind, my conscience, go crazy, hallucinated, and unable to recall the incident that I committed clearly”.

50. He expressed his wish to “take responsibility for everything that happened” and “sincerely apologise” for his conduct. He claimed that he had been abstinent from drug use since the incident, and attempted to join a drug rehabilitation program whilst in custody. He has also become a Christian, and attests that he prays that Ms Sripho “can fully recover and return to her normal life”.

51. Also in translation before the sentencing court was a lengthy "Life history" the applicant had written. In that document, the applicant gave an account of his early life, and events leading up to the commission of the offence against Ms Sripho. The applicant was born in 1986 and was aged 30 at the time of sentence. He was one of five children born to loving parents, and had the advantage of a good education in his native Thailand. The applicant said that, at age 13, he began to drink alcohol and use drugs, but was able to stop taking those substances after his parents became aware of his conduct.

52. At age 16 the applicant was a passenger in a car that was hit by van, and he suffered terrible injuries, including swelling to the brain, and a severe fracture to his right leg that led to shortening and some disability. The applicant spent an extended period in hospital and subsequently underwent rehabilitation. He was unable to continue his schooling, and had to complete high school through an informal educational program. Although he subsequently attempted a bachelor degree at university, he was not able to complete it, something he attributes to the brain swelling sustained in the motor vehicle crash. The applicant said that he began to drink alcohol to excess during this time.

53. Unable to find appropriate work due to his limited education and physical disability, the applicant struggled in his native Thailand. With his sister's assistance, he travelled to Australia where more suitable work as a cleaner was available to him.  The applicant found his employment difficult, and found learning a new language problematic.

54. He married after a short time, but his marriage ended after about a year, leaving the applicant feeling humiliated and sad. He began drinking nightly and, when he found it difficult to get up in the mornings to work, he was introduced to "ice" by a friend, to assist him in staying awake. The applicant said that he became a "slave" to ice, with his daily usage rapidly increasing. Because of drug use, and a gambling addiction, the applicant said that he lost his job, and became homeless.

55. He started fighting with Ms Sripho, whom he had met and become involved with in this period. He referred to the criminal charges against him for "slapping" her, and threatening to hurt her. 

56. Referring to the likely damage to his brain caused by drug use, together with the stress of being unemployed, homeless, and experiencing problems with his visa, he said that he "lost my mind and attacked my girlfriend [...] by setting her on fire". He referred to it as "a very sad story". The applicant described himself as ordinarily a compassionate and calm person, but claimed that ice had "possessed" his brain and caused him to lose his mind and commit the offence against Ms Sripho.

57. The applicant said that he ceased using drugs on entering custody, and had undertaken such rehabilitative programs as were available to him as a remand prisoner. He referred to his ice addiction as the thing that had caused him so much trouble, and "many damages to the person I love".

58. He asked for mercy from the court, and for his sentence to be reduced because, as a Thai speaker, he was unable to converse freely with other prisoners, or read books or watch television, leaving him isolated and lonely. He referred to the food in prison as a further problem, it being of an unfamiliar type. 

59. A letter from the applicant's family, written by his Sydney-based sister, was part of the material before the sentencing court. Although not entirely consistent with the history of his early life given by the applicant in his "life history", the applicant's sister confirmed that he had been involved in a motor vehicle crash in Thailand. She said that he had at some point thereafter become addicted to drugs. She said that his family decided to send the applicant to Australia against this background of drug use. Ms Suksa-Ngacharoen observed that the applicant frequently expressed his regret for what he had done to "his girlfriend". 

60. The Reverends Mark Muss and Peter Baines of the prison chaplaincy both confirmed in written references that the applicant was a regular chapel-goer, who was a good worker and respectful to others. Rev. Baines referred to the applicant's sorrow for the crime he had committed. 

61. In his evidence to the sentencing court, the applicant said that he accepted that the statement of facts was an accurate account of his crimes. He said the letter and life history he had written were both truthful documents stating the things he wished the court to take into account. 

62. He conceded that, within a period of five months he committed three separate offences against Ms Sripho, including the offence for which he was to be sentenced.  As to that, he told her Honour that,

"[...] for the things I did to [Ms Sripho], my ex-girlfriend, I feel very, very, very, sorry. I've got no words to explain how I feel for the things I did to her. Now that she has to suffer for the rest of her life, the consequences of me using drugs [...] I pray that she will have the strength in her mind and her body to live a normal life from now on".

63. The applicant said that the reason he had committed the crime was that he had become "obsessed" with the drug ice, and was addicted. He said that, as a consequence, he "lost [his] judgment". 

64. Since entering the prison system on arrest, the applicant had been moved amongst a number of correctional centres, working when he could, and studying English and art. He had also undertaken such rehabilitative programs as were available to him, including EQUIPS, which addressed both drug use and violence. He wished to participate in further courses, particularly those directed to addressing violent conduct. 

65. The applicant said that he felt isolated in custody, because of his poor English. 

66. In cross-examination, the applicant said that he believed his anger and violence was attributable to his drug use and, for some days prior to the commission of the offence he had been using ice and not sleeping. He said that he could not recall some of the facts surrounding his commission of the crime. He claimed to have lost control because of his drug use, which made him "crazy". 

The Submissions of the Parties in the District Court

The Crown’s Submissions

67. Referring to R v Dinh [2010] NSWCCA 74, the Crown argued that it was important for the sentencing court to have regard to the facts of the case in determining its seriousness. The Crown pointed to the level of planning involved, with the applicant purchasing methylated spirits prior to meeting Ms Sripho, and decanting the liquid into a water bottle to make the attack possible. The motivation, based upon the applicant's demand, "why have you done this to me", was evidently his inability to accept her decision to end their relationship. The crime occurred against a background of domestic violence, with respect to which the applicant was at conditional liberty. The injuries inflicted were extensive, debilitating, and in large part permanent, and had required intense and significant medical treatment, which was ongoing. The overall consequences for Ms Sripho are disability, disfigurement, pain, and the loss of the will to live. The Crown submitted that the offence fell within the worst case category for a crime which carried a 25 year term of imprisonment by way of the maximum penalty.

The Applicant’s Submissions

68. The applicant conceded that the offence was "dreadful" but disputed that it could be assessed as falling within the worst category of offending of that nature. The applicant contended that, not being an offence committed by way of "explosion", necessarily it could not be within the worst category contemplated by s 46 of the Crimes Act. Further, it was submitted that the level of planning could not operate to make the offence more serious, as s 46 offences all had a level of planning inherent to them, since no offender could "spontaneously" come upon explosives or accelerants necessary to commit the offence. It was submitted that only planning going to disguising the identity of the offender could be taken into account as an aggravating feature. It was submitted that injuries to 39 [or 40%] of the body were serious, but not "worst case scenario", and a sentence with a starting point at or near "the 25 year bracket" would be "well beyond the objective seriousness of the offence".

69. The applicant submitted that he was "entitled" to a discount on sentence of 25% because he had entered a plea of guilty to the offence in the Local Court, and his sentence should be further ameliorated by reference to the linguistic and cultural isolation he faced in prison, coupled with the isolation from family, most of whom lived in Thailand. It was submitted that he was remorseful, and had good prospects of rehabilitation, having ceased all drug use. Counsel for the applicant contrasted the breakdown of the applicant's marriage, which ended without reported violence, to the present offence, to submit that drug use had clearly played a part in the commission of the crime. It was submitted that a finding of special circumstances, pursuant to s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) should be made.

The Remarks on Sentence

70. In her sentencing judgment, her Honour set out the facts of the matter, consistent with those agreed by the parties. She also noted the nature of the injuries inflicted upon Ms Sripho by reference to the reports of Dr Zeman, Professor Maitz, and Dr Li. As to the court's observations of the nature of the injuries, her Honour noted that the injuries to Ms Sripho had "partially inhibited her ability to function as a human being by limiting two of the five senses by which people perceive the world". Ms Sripho's ability to communicate was affected by paralysis to her vocal chords, and by the partial hearing loss she had sustained. Her ability to touch and feel has been diminished by the injuries and permanent damage to her hands, and the constant pain to them. Those disabilities, together with the obvious physical deformity she had sustained had diminished both her confidence and her will to live.

71. Her Honour referred to the multiplicity of injuries as a "horrible outcome of a most serious and premeditated crime", injuries which would mean that Ms Sripho would require intensive rehabilitation and psychiatric care for the rest of her life. The judge categorised the level of grievous bodily harm as "of a very high order of seriousness".

70. Her Honour considered the competing submissions to the court as to the objective gravity of the offence, and rejected the applicant's submission that, in the absence of an explosion, the offence could not be as serious as the Crown contended. Her Honour concluded that the ignition of methylated spirits was, in effect, an explosion. The sentencing judge referred to the background of domestic violence and, in particular, to the applicant's threat to Ms Sripho in February 2014 to "cut" her by cutting diagonally across her face with a knife that he produced and held towards her. Of that threat, her Honour said,

"On my assessment, a threat to cut her face, a month before the current offence, is evidence of an intention to disfigure her in some way a month prior to this offence indicating significant premeditation, not necessarily for the exact offence, but for the result, this evidence contradicts the statement of the offender contained in his letter to the court that the current offence was in part committed as a result of his drug intoxication, and that he could not remember committing the incident" (AB 12). 

73. The sentencing judge referred to the applicant's assertion that he had committed the offence because of his methylamphetamine intoxication, but observed that this contention was at odds with his longstanding desire to disfigure Ms Sripho. Her Honour concluded that the applicant's intention had been to cause her considerable harm.

74. She referred to the process of planning and the steps taken to achieve the result the applicant intended, to disfigure Ms Sripho, that being an intention he had held at least a month earlier. The applicant made an arrangement to meet Ms Sripho, obtained methylated spirits, decanted the liquid into a water bottle that was innocuous in appearance, went to her home, telephoned her to come to meet him on Level 6 of the apartment block, poured the methylated spirits all over her on her arrival, produced his lighter, and used that to ignite Ms Sripho.

75. Her Honour noted that the applicant did not take steps to disguise himself, but she regarded that as simply the applicant underlining that it was he who did the damage to Ms Sripho, a feature that had become part of the mental torture to her. That the applicant fled showed that he well understood the criminality of his conduct, and that he did not wish to be apprehended by police.

76. Referring to the applicant's "Life history" in which he noted the grief and trauma occasioned to him by the permanent disability and disfigurement from the motor vehicle crash, her Honour observed that the applicant's understanding of the life changing effects of a major disfiguring injury highlighted the tragedy and the cruelty of what he had done to Ms Sripho.

77. In assessing the objective gravity of the offence her Honour took into account:

• the breach of trust that arose in the context of a previous relationship; 

• the fact that the offence was committed in a public place with disregard for the safety of others;

• premeditation;

• the immediate pain and fear caused to Ms Sripho;

• the long term consequences to her; and

• the conditional liberty to which he was subject at the time (there being both s 9 and s 12 bonds).

78. Her Honour concluded that "the facts and circumstances of the charged offence make this objectively among the most serious imaginable". 

79. She concluded that there should be a 25% discount on the sentence that would otherwise be imposed to reflect the utilitarian benefit of the early plea. 

80. As to the subjective case, the sentencing judge noted that the applicant retained family support despite distance, with only his sister in Sydney. She referred to his upbringing and the motor vehicle crash in which the applicant had been involved, and its aftermath. She noted the difficulties faced by him in custody as a result of his linguistic and cultural isolation, although did not think these features amounted to significant hardship. Her Honour referred to the applicant's involvement with the Church, and his desire to undertake rehabilitative programmes.

81. Although her Honour accepted that the applicant had expressed his sorrow for the commission of the offence, she did not regard that as amounting to "remorse as is meant by the [Crimes (Sentencing Procedure)] Act". She thought the applicant was self-focused, and with limited insight. She accepted that his good character prior to 2013 and motivation to undertake rehabilitative courses might point to reasonable prospects of rehabilitation, but concluded that it was impossible to say more than that his prospects were unknown.

82. The sentencing judge recognised the need for some partial accumulation as between the s 46 offence, the related offences, and the call-up matters, and made a finding of special circumstances only on the basis that some overall adjustment to the ratio of sentence may be needed because of that feature of the matter.

83. The overall sentence was one of 19 years with an overall NPP of 14 years imprisonment, to date from the date on which the applicant entered custody, 10 March 2014. 

The Proposed Appeal

Ground 1: There was a denial of procedural fairness as a consequence of her Honour failing to warn the Applicant’s counsel as to a proposed finding of premeditation to be made on the basis of additional material to the agreed statement of facts

84. By this proposed ground the applicant complains that the sentencing judge denied him procedural fairness in that she,

[...] made a finding of premeditation on the basis of material that she requested, beyond the scope of the agreed facts, without having brought it to the attention of the parties.

85. This proposed ground relies upon a misconception of both what occurred at the proceedings on sentence, and of proper sentencing procedure.

86. The “material that [the sentencing judge] requested” is a reference to the facts of the February 2014 offences, which were placed before the sentencing court after her Honour raised with the parties the prospect of calling those matters before her.

87. It is important to note that, during the proceedings on sentence, her Honour asked about the earlier offences represented by the conviction entries on the applicant’s criminal history inquiring, firstly, whether the victim was Ms Sripho and, secondly, whether any call-up proceedings relevant to the breach of the s 9 and s 12 bonds should be dealt with contemporaneously with the sentence matter. Since the matters were factually related, in that the victim was the same, and the s 46 offence represented a breach of both bonds, the inquiry was appropriately made.

88. That the parties thought so too is clear from the exchange between those then appearing for the parties and her Honour, with both conceding that it was a sensible course for the sentencing court to deal with all related matters together. Counsel for the applicant told her Honour, “I’m obviously not going to take issue with any of that”.

89. It is thus not correct to say that the material relating to the earlier convictions was placed before the sentencing court by action of the judge, (implicitly) acting without reference to the parties. Her Honour, sensibly in my view, queried the prospect of the facts of the earlier matters, and the associated breach proceedings, being before the court, and the parties accepted that as an appropriate course.

90. In circumstances where the history of violence in the relationship was relevant to the exercise of the sentencing discretion, and the applicant would at some point face proceedings for the breach of the two bonds because of his conviction for the s 46 offence, it was both necessary and sensible for the sentencing court to have the material before it. That occurred with the consent of both the Crown and the applicant.

91. Once the material was before the sentencing court, it was entirely open to the sentencing judge to have regard to it in determining the facts of the offences before her for sentence, and the gravity of the crimes. There was no obligation on her Honour, and nor should it have been necessary, for her to warn the parties that she may do so: that should have been obvious to all involved, including the experienced Public Defender who acted for the applicant at the sentence hearing.

92. There could be no error in the sentencing judge considering and making use of information properly before the court. There seems to be a common misconception that a sentencing court is bound by a statement of “agreed” facts, and not permitted to go beyond it by referring to additional information. That belief is contrary to both authority and the interests of justice: see generally GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198, at [30] – [31]; Chow v Director of Public Prosecutions & Anor (1992) 28 NSWLR 593 at 606 – 607; R v Palu [2002] NSWCCA 381; 134A Crim R 174, at [21]; O’Neill-Shaw v The Queen [2010] NSWCCA 42 at [23] – [24]; Pleasance v R [2016] NSWCCA 113 at [78] – [80].

93. The “finding of premeditation” that the applicant complains of relates to her Honour’s conclusion that the offences of February 2014 (as outlined in the additional material), in which the applicant threatened to slash Ms Sripho across the face with a knife, indicated “significant premeditation, not necessarily for the exact offence, but for the result”, that being to disfigure her.

94. There are two aspects of the remarks made by the sentencing judge which are of significance in considering this proposed ground.

95. The first is the qualification to the remark that accompanies it, being “not necessarily for the exact offence”. Clearly, her Honour qualified this comment about premeditation by noting that it was referable only to an intended outcome of harming or disfiguring Ms Sripho, and not to the level of planning that went directly to the commission of the charged offence. She separately referred to those as including the acquisition of methylated spirits, decanting the substance into a water bottle, and so on.

96. The second matter is the context in which her Honour referred to the earlier threat. Much of the evidence placed before the sentencing court by the applicant went to his assertion that his fiery attack upon Ms Sripho occurred not because of any anger or resentment he felt towards her for ending their relationship, but because drug use in the days leading up to the offence had made him “crazy”. In that context, it was relevant for her Honour to note that the applicant had, prior to his claimed drug induced haze of the days before the offence, expressed a wish to harm Ms Sripho, and specifically by some act that would disfigure her.

97. Her Honour was not by the impugned comment concluding that the planning for the s 46 offence extended into the previous month with the formation of an intention to disfigure; she was putting the applicant’s claimed drug-related motivation into its proper context, and rejecting it.

98. That conclusion was well open to her, and there was no obligation on her Honour to detail her thoughts on that subject and invite comment. The applicant’s apparently long held desire to hurt and disfigure Ms Sripho was a feature that went to assessing the credibility of his claims to her Honour that he acted as he did because of a sort of momentary madness brought on by drug use. His expressed wish of February 2014 to slash Ms Sripho across the face with a knife tended to rebut that claim, and it was open to her Honour to so conclude.

99. This ground has not been made out and I would dismiss it.

Ground 2: Her Honour erred in finding that the offence was premeditated to the extent that the applicant intended to inflict serious harm and disfigurement to the victim for some time

100. The proposed ground 2 complains of the same asserted finding of premeditation dealt with when considering ground 1; that is, that the sentencing judge concluded that the planning for the commission of the s 46 offence commenced about a month prior to its commission, with the applicant forming an intention to harm Ms Sripho at that time.

101. For the reasons given with respect to ground 1, this ground is misconceived, and cannot be made out. It should be dismissed.

Ground 3: Her Honour erred by taking into account the Applicant’s record of previous convictions to increase the objective gravity of the offence for which the Applicant was to be sentenced

102. The applicant contends that the sentencing judge had regard to his criminal history to conclude that the objective gravity of the s 46 offence was heightened, and that she thus fell into error.

103. If the remarks on sentence are considered as a whole, that claim cannot be made good. 

104. Having set out the facts of the s 46 offence and the extensive and permanent nature of the injuries to Ms Sripho, her Honour concluded that it was "a very serious example of the charged offence". She then turned to the history of the relationship between the applicant and Ms Sripho, and the violence directed by him to her over a period of time, saying

The history of what was the relationship between the offender and Ms Sripho places this offence in a context that increases its objective gravity. 

105. It should firstly be observed that the context in which an offence occurs is relevant to an assessment of its gravity. Crime is not committed in a vacuum, to be assessed as divorced from all that has gone before. Particularly when the offending conduct occurs in the context of a domestic relationship, where the victim and offender have interacted over a period of time prior to the commission of the offence, the history of the relationship may significantly inform consideration of the commission of the charged conduct. If the relationship has formerly been a happy one, the absence of violence may support a claim that the offending conduct is out of character, or that it occurred in the context of particular stressors such that it can be regarded as an isolated incident, unlikely to re-occur. Where there has been violence, a sentencing court is entitled to consider that history, not by penalising an offender for earlier criminal acts, but by assessing the charged offence in a proper context. Earlier violence may go to an assessment of an offender's insight into his or her crimes, or to consideration of prospects of rehabilitation, for example.

106. Here, it went to illustrate the deteriorating nature of the relationship between the applicant and Ms Sripho over a period of months, and to allow the sentencing judge to assess the applicant's claims to have acted on the charged occasion from short term drug-induced madness.

107. Necessarily, the sentencing judge referred to incidents that had led to criminal convictions, but that is a different matter from having regard to an offender's criminal convictions as a matter aggravating the gravity of a crime.  

108. Later in her judgment, her Honour specifically listed those features of the applicant's crime to which she had had regard when determining the objective seriousness of the crime. She referred to the domestic relationship between the applicant and Ms Sripho as giving rise to a breach of trust; premeditation; the fact that the offence was committed in a public place without regard to the safety of others; the fear, pain, and long term disability and disfigurement caused to Ms Sripho; and the fact that the applicant was subject to conditional liberty at the time. Her Honour did not refer to the applicant's criminal history, or to his history of offences of violence towards Ms Sripho.

109. When considered as part of the whole of the sentencing judgment, rather than as a sentence read in isolation, it is plain that her Honour did not make the error complained of.

110. This ground should be dismissed. 

Ground 4: Her Honour failed to properly assess the applicant’s evidence of remorse

111. By reference to two sentences extracted from the remarks on sentence the applicant complains that the sentencing judge erred in failing to properly asses the evidence of remorse. The impugned sentences are:

He expressed that he is sorry for committing the offence, saying that he prays for Ms Sripho's full recovery. This does not amount to remorse as is meant by the Act.

112. Remorse "as is meant by the Act" is a reference to s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides,

(i) the remorse shown by the offender for the offence, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).

113. The evidence for remorse came from the applicant, in his letter to the Court, "Life history", and oral evidence; and from others to whom he had expressed remorse. As submitted by the applicant to this Court, it was open to the sentencing judge on that evidence to find that the applicant regretted his wrongdoing and was genuinely remorseful, "if accepted" (emphasis added). It is apparent that her Honour did not accept the applicant's remorse and contrition, a finding that was also entirely open to her.

114. What is notable about the evidence of the applicant, both orally and in writing, is that the vast majority of it related to himself and his own suffering. Where he did refer to the commission of the offence, it was always in the context of attributing blame for his conduct to the drugs he had been taking prior to the incident.  At no point in his evidence did the applicant unreservedly accept his responsibility for what he had done. Against that background, his prayers for Ms Sripho's full recovery - something that, it must be observed, can never occur - have something of a superficial flavour. As her Honour noted, the applicant's prayers were "likely to be of little use" to Ms Sripho.

115. The assessment of the evidence of remorse is a discretionary matter for the sentencing judge. That is so even where the evidence of remorse is given on oath. A court is not bound to accept evidence given on oath; it may accept it, or reject it, in whole or in part. As Buddin J observed in Alvares v R; Farache v R [2011] NSWCCA 33 at [65],

As I have said the determination of questions of fact, such as the extent to which remorse has been shown, is quintessentially a task that falls to the sentencing judge. Indeed, a sentencing judge is not bound to accept assertions by an offender that he is remorseful, even when that assertion is made in the witness box: R v Stafrace (1997) 96 A Crim R 452. Nor will what Simpson J described, in Pham v R [2010] NSWCCA 208 [at para 33], as “the often ritual incantation of remorse and contrition” be automatically accepted by a sentencing judge.

116. The expressions of remorse from the applicant to her Honour during the sentencing proceedings might be regarded, and appear to have been so regarded by her Honour, as likely to be no more than "the often ritual incantation", easily uttered, whether sincerely or otherwise.

117. In terms of the requirements of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act, the applicant's evidence of acceptance of responsibility was called into question by his insistence on blaming drug use for the commission of the crime. His acknowledgement of injury and damage seems limited, in that he did not appear to fully comprehend or accept that the injuries he had inflicted upon Ms Sripho were of such magnitude that she would never recover from them, whether aided by his prayers or not. There is no suggestion that he had made reparation for his crime, and nor could any reparation ever be made in the circumstances of this offence.

118. It was open to the sentencing judge to conclude that the matters referred to in s 21A(3)(i) as mitigating features had not been established by the applicant on the balance of probabilities. Her Honour had the benefit of seeing the applicant before the court, and seeing him giving his evidence, (albeit through an interpreter, a feature that, despite the applicant's claims to the contrary, is of no significance). Her Honour was not obliged to accept that the applicant was remorseful and it is clear that she did not. I can discern no error in that conclusion.

116. This ground should be dismissed.

Ground 5: Her Honour erred in finding that the applicant’s prospects of rehabilitation were unknown

120. The applicant complains that the sentencing judge was in error in concluding that his prospects of rehabilitation "are anything other than unknown". It is contended that the conclusion necessarily demonstrates that her Honour wrongly disregarded the evidence that went to the applicant's future prospects, and approached the task of considering those prospects by "inverted reasoning". That is, it is said that, in referring to the length of the sentence to be imposed as a feature militating against an informed assessment of the prospects of rehabilitation, the sentencing judge failed to take into account the evidence relevant to rehabilitation in determining the length of sentence.

121. That contention cannot be accepted.

122. Like remorse, the assessment of an offender's prospects of rehabilitation is a matter within the discretion of the sentencing judge. This Court should be slow to interfere with that assessment, absent clear evidence of error. There is no clear evidence in this case.

123. The sentencing judge referred to all of the features of the applicant's case that could have a bearing on his future prospects. Her Honour took into account the applicant's conversion to Christianity and the solace that he found in his faith; she referred to his continuing support, both from family in Thailand who visited the applicant each year, and his sister, who by virtue of living in Sydney could see the applicant more frequently. Her Honour noted the applicant's unchallenged evidence of abstinence from illicit drugs since the commission of the offence, and the rehabilitative programmes he had endeavoured to access as a remand prisoner. The judge referred to the applicant's work history in custody and the fact that he had obtained a position of trust within the prison system. She was conscious of the applicant's former good character, prior to 2013.

124. However, having noted each of those matters, the sentencing judge also referred to the applicant's lack of insight; his perception that the only issue for him to address was drug use, he being unwilling to acknowledge his recent history of domestic violence. She had regard to the absence of true acceptance of responsibility for his crime, in concluding that, whilst she accepted that the applicant was well motivated in his pursuit of education and rehabilitative programmes, there was insufficient information overall to draw any conclusion as to his prospects of rehabilitation.

125. Having reached that conclusion, she then observed that his return to the community was "a long way away".

126. The conclusions of the sentencing judge were open on the evidence. There were features of the applicant's case which both militated in favour of a conclusion that his future prospects were reasonable, and which suggested that they were not. Of significance was the applicant's failure to understand or acknowledge the causes of his offending conduct, beyond blaming drug use for it. It is difficult to see how an offender could be regarded as having good prospects for rehabilitation where he or she has not demonstrated true remorse: R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159, at [41].

127. The judge's observation that the applicant's sentence must long delay his return to the community was not to "invert" the reasoning process; it was simply to acknowledge that predictions of future conduct were even more difficult when that future was many years away.  

128. This ground should be dismissed.

Ground 6: her Honour erred by partly accumulating the sentence for the substantive offence [the s 46 offence] on the related offence of contravene ADVO

129. As can be seen from the table at [26] above, there was some degree of accumulation between the sentence imposed for the s 46 offence, and that for the related offence of contravening an apprehended domestic violence order. The applicant asserts that this approach was erroneous since the offences arose from the same event, and her Honour had regard to the existence of the ADVO in assessing the seriousness of the s 46 offence.

130. In providing for some degree of accumulation, the sentencing judge observed that a distinct sentence was necessary to recognise the seriousness of breaching a court order, involving as such an offence does a failure to observe an order of a court to refrain from acts prohibited by its terms. Her Honour was cognisant of the care to be taken in avoiding "double counting", referring to it expressly.

131. In my opinion, the applicant's contention overlooks the fact that an offence committed in breach of an ADVO, and an offence of breaching an ADVO, involve quite separate and distinct criminality. It is often the case that a court is called upon to sentence an offender for both breaching an order, and for the conduct which constitutes the breach, charged as distinct offences: there is no duplicity in imposing distinct sentences for what are distinct offences.

132. The criminality of breaching an ADVO rests in the complete disregard for an order of a court, conduct which has the practical effect of undermining the authority of the courts, and preventing the courts from extending effective protection to persons at risk of harm from another. The legislative intent of the scheme for apprehended domestic violence orders is to permit a court to restrain the conduct of an individual who poses a risk to a person with whom he or she is or was in a domestic relationship. If the authority of the courts in making these orders is simply ignored, as the applicant did when he attacked Ms Sripho, the law and the courts are diminished, and the capacity for the courts to protect vulnerable individuals is impeded. Conduct which involves deliberate disobedience of a court order must be treated as serious, and should ordinarily be separately punished from any offence that occurs at the same time, always having regard to the requirements of the totality principle as set out in Pearce v The Queen (1998) 194 CLR 610.

133. The applicant submits that the approach taken by the sentencing court in fixing concurrent sentences for the call-up matters is inconsistent with the partial accumulation of the other charges, but that overlooks the fact that the breach of the s 9 and s 12 bonds was, in each instance, the commission of another crime, in contravention of the requirement of the bonds that the applicant be of good behaviour. The criminality involved in the breaches was the same, and was capable of being fully comprehended by concurrent sentences: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41, at [27].

134. I am not able to discern any error in the approach taken by the sentencing judge to the question of concurrency and accumulation of penalty.  This ground should be dismissed.

Ground 7: the sentence was manifestly excessive

135. It is for the applicant to demonstrate that the sentence imposed upon him was unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, at 371 [25].

136. The sentence for the s 46 offence was one of 18 years imprisonment, with a NPP of 13 years and 3 months. The applicant submitted that the sentence was manifestly excessive having regard to the statutory maximum penalty (25 years imprisonment) and by reference to sentencing statistics for the same offence held by the Judicial Commission for the period 2008 to 2017. It is submitted that, bearing in mind that a 25% discount on sentence was allowed to reflect the utilitarian value of the early plea of guilty, the "starting point" for the sentence must have been 24 years imprisonment, a term representing 96% of the available maximum penalty. The 4% retreat from the maximum penalty, it is argued, represents an inadequate reflection of the subjective case, indicative of some error in the exercise of the sentencing discretion.

137. In fixing sentence for this offence, the sentencing court was obliged to have regard to the legislative guidepost, being the maximum penalty fixed by the legislature, and to apply relevant sentencing principles, of which an assessment of the objective gravity of the offence is the first consideration. The court's task was not to fix sentence by mathematical calculation, assigning a percentage value to the objective and subjective features, and adding to or subtracting from some median point of the sentencing range established by reference to statistics.  Such an approach is antithetical to the instinctive approach to sentencing endorsed by the High Court in Markarian v The Queen.

138. It is a fundamental principle of sentencing law that the sentence imposed must properly reflect the objective gravity of the crime committed, and be reasonably proportionate to the circumstances of the crime. The sentence cannot exceed what is required to reflect the gravity of the crime, but nor can it be permitted to fall below that point. In R v Dodd (1991) 57 A Crim R 349, the principle was explained (at 354) in this way:

[…] making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen v The Queen No 2 (1987-88) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and subjective features of a case will vary. (See, for example, the passage from the judgment of Street CJ in R v Todd [1982] 2 NSWLR 517 quoted in Mill v The Queen (1988) 166 CLR 59 at 64). Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective circumstances of the case (R v Rushby [1977] 1 NSWLR 594).

139. On occasion, the extreme gravity of the crime committed will be such that the subjective case, however persuasive, together with any other feature that would ordinarily point to a reduction in sentence, must yield to the requirement for the sentence to reflect the gravity of the crime, to punish the offender, denounce the criminal conduct, deter the offender and others from the commission of similar acts, and recognise the harm done to the victim and the community more broadly. 

140. Her Honour concluded that the offender's attack upon Ms Sripho fell at the top of any notional range of objective gravity for offences of this kind. The maximum penalty provided by the legislature is intended for crimes falling at the top of the range of gravity: Veen v The Queen (No 2) (1988) 164 CLR 465 at 478. If it is accepted that the "starting point" of sentence prior to the application of the 25% discount on sentence was 24 years, her Honour did no more than approach the sentencing exercise on the basis that, absent the discount, a sentence at or near the statutory maximum was required to reflect the very grave nature of the offending.

141. The sentence was reduced by one quarter to acknowledge the utilitarian value of the plea; any further reduction could arguably have resulted in a sentence that failed to reflect the gravity of the crime.

142. Neither is the comparison made by the applicant between the sentence imposed upon him and that imposed upon others charged with a s 46 offence, by reference to statistics, persuasive of error. As has been frequently observed in this Court, bare statistics can say nothing about the circumstances of the crimes reflected in their numbers, or about the subjective cases of individual offenders. They provide little or no assistance to sentencing courts, or to appellate courts considering a claim of manifest excess, or manifest inadequacy. As Sully J said in R v Shorten (unreported decision of the NSW Court of Criminal Appeal, 10 September 1997),

"[...] the advent of the computer and of computerised statistics does not remove the need for sentencing Courts, primary or appellate, to look with discriminating care at the particulars to each individual case [...]".

143. It may be accepted that the sentence was a stern one, even - as the Crown conceded - severe, but I do not regard it as falling outside the available range of sentence for an offence of this extreme seriousness. Nor do I accept that the applicant has established that the sentence imposed by her Honour is "unreasonable or plainly unjust": Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at [325]. In a sentencing environment where there is no single correct sentence for an offence of this nature, and where judges at first instance are to be allowed as much flexibility as is consonant with the proper application of sentencing principle, it is not enough that this Court may have exercised the sentencing discretion differently: Markarian v The Queen at [26] - [28]; Vuni v R [2006] NSWCCA 171 at [33]; Porter v R [2008] NSWCCA 145 at [70]; Kendall v R [2015] NSWCCA 13 at [46] - [47].

144. The principles were recently collated, in Vaiusu v R [2017] NSWCCA 71, at [28]:

When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from Lowndes v R [1999] HCA 29; 195 CLR 665 at 671–672 [15]; Dinsdale v R [2000] HCA 54; 202 CLR 321 at 325 [6]; Wong v R [2001] HCA 64; 207 CLR 584 at [58]; Markarian v R [2005] HCA 25; 228 CLR 357 at 370–371 [25]; and Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [55].

(a) Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

(b) Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

(c) It is not to the point that this Court might have exercised the sentencing discretion differently.

(d) There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

(e) It is for the applicant to establish that the sentence was unreasonable or plainly unjust.

145. The applicant's crime was an extremely serious one, and the consequences for Ms Sripho devastating and life-long. I would, respectfully, agree with the assessment of the sentencing judge that the gravity of the crime was such as to place it at the top of the range of objective gravity for such offences. A stern sentence representing condign punishment was warranted. In such circumstances, I do not regard the sentence imposed upon the applicant as manifestly excessive.

146. I would dismiss this ground of appeal.

Proposed Orders

147. Whilst I would grant leave to the applicant to appeal, the appeal should be dismissed.

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Decision last updated: 10 August 2018