Vaughan v R

[2020] NSWCCA 3

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Vaughan v R [2020] NSWCCA 3
Hearing dates:	18 October 2019
Date of orders:	06 February 2020
Decision date:	06 February 2020
Before:	Macfarlan JA at [1] Johnson J at [2] R A Hulme J at [116]
Decision:	Refuse extension of time to seek leave to appeal against sentence.
Catchwords:	APPEAL – SENTENCE – application for extension of time to seek leave to appeal against sentence – offences of cause grievous bodily harm with intent to murder and wounding with intent to cause grievous bodily harm – offender attacked his wife with a knife and his vehicle and her co-worker with a knife – sentencing Judge imposed aggregate sentences and indicated sentences which would have been imposed for individual offences – whether sentencing Judge erred in the notional accumulation of the indicative sentences – no claim that indicative sentences or aggregate sentence were manifestly excessive – consideration of provisions for aggregate sentencing – claim of error based on misconception concerning aggregate sentencing – ground of appeal rejected – extension of time refused
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment Act 2010 Crimes Act 1900 Criminal Appeal Act 1912 Interpretation Act 1987
Cases Cited:	Bao v R [2016] NSWCCA 16 Beale v R [2015] NSWCCA 120 Cherry v R [2017] NSWCCA 150 Cullen v R [2014] NSWCCA 162 JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Kerr v R [2016] NSWCCA 218 McIntosh v R [2015] NSWCCA 184 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Porter v R [2008] NSWCCA 145 R v Amati [2019] NSWCCA 193 R v Brown [2012] NSWCCA 199 R v Rae [2013] NSWCCA 9 ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132
Texts Cited:	---
Category:	Principal judgment
Parties:	Shelden Patrick Vaughan (Applicant) Regina (Respondent)
Representation:	Counsel: Mr P Lange; Mr B Mawassi (Applicant) Mr B Hatfield (Respondent)   Solicitors: Alexanders Lawyers Solicitor for Public Prosecutions (Respondent)
File Number(s):	2015/241894
Publication restriction:	---
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: --- Citation: --- Date of Decision: 27 April 2018 Before: His Honour Judge Bennett SC File Number(s): 2015/241894

Judgment

1. MACFARLAN JA: I agree with Johnson J.

2. JOHNSON J: The Applicant, Shelden Patrick Vaughan, seeks leave to appeal against an aggregate sentence of imprisonment imposed by his Honour Judge Bennett SC at the Parramatta District Court on 27 April 2018 for offences of causing grievous bodily harm with intent to murder contrary to s.27 Crimes Act 1900 and wounding with intent to cause grievous bodily harm contrary to s.33(1)(a) Crimes Act 1900.

3. The maximum penalty and standard non-parole period for each of these offences is as follows:

1. an offence under s.27 Crimes Act 1900 - maximum penalty of imprisonment for 25 years with a standard non-parole period of 10 years;

2. an offence under s.33(1)(a) Crimes Act 1900 - maximum penalty of imprisonment for 25 years with a standard non-parole period of seven years.

4. Following pleas of guilty, the Applicant was sentenced to an aggregate term of imprisonment of 21 years comprising a non-parole period of 14 years commencing on 19 August 2015 and expiring on 18 August 2029, with a balance of term of seven years commencing on 19 August 2029 and expiring on 18 August 2036.

5. In accordance with ss.53A(2)(b) and 54B(4) Crimes (Sentencing Procedure) Act 1999 (as each offence carried a standard non-parole period), the sentencing Judge gave the following sentence indications:

1. Count 1 - the offence under s.27 Crimes Act 1900 of causing grievous bodily harm with intent to murder - imprisonment for 17 years and six months with a non-parole period of 12 years;

2. Count 3 - the offence under s.33(1)(a) Crimes Act 1900 of wounding with intent to cause grievous bodily harm - imprisonment for 11 years and three months with a non-parole period of eight years.

The Ground of Appeal

6. By Notice of Application for Leave to Appeal filed on 30 August 2019, the Applicant relies upon a single ground of appeal that, in determining the aggregate sentence, his Honour erred in the notional accumulation of the indicative sentences.

7. At the hearing before this Court on 18 October 2019, Mr Lange, counsel for the Applicant, made clear that there was no claim that the aggregate sentence was manifestly excessive (T6.11) nor was it contended that the individual sentence indications lay outside the range of discretion for the sentencing Judge in an assessment of sentence for those offences (T6.32-37).

8. Counsel for the Applicant submitted that the single ground of appeal asserted an “error of process” (T7.1, 9.47) which, if the ground was upheld, would lead the Court to undertake the exercise of independent sentencing discretion for the purpose of determining whether a lesser sentence should be imposed in accordance with s.6(3) Criminal Appeal Act 1912: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].

Extension of Time Required

9. The Applicant lodged his Notice of Intention to Seek Leave to Appeal on 1 May 2018 which was extended to 1 February 2019. However, the Notice of Application for Leave to Appeal was not lodged until 30 August 2019. Accordingly, the Applicant requires an extension of time for the purpose of bringing his application for leave to appeal against sentence.

10. In determining whether to extend time for the purpose of bringing an appeal under s.10(1)(b) Criminal Appeal Act 1912, it is appropriate for the Court to have regard to the interests of justice in the particular case: Kentwell v The Queen. The interests of justice will often pull in different directions and include consideration of the adverse effect on the victim or victims, or on the community, generally occasioned by reopening a concluded criminal proceeding: Kentwell v The Queen at [32]. Relevant to the determination or the interests of justice on an application to extend time are the prospects of success should the extension be granted: Kentwell v The Queen at [33], [44].

11. The Crown submitted that an extension of time should not be granted to the Applicant as there was no merit in the sole ground of appeal.

12. It is appropriate to consider the merit of the Applicant’s ground of appeal for the purpose of a decision as to whether an extension of time should be granted in this case.

Facts of the Offences

13. Although the Applicant’s sole ground of appeal involves a process issue only, it is appropriate to recite the facts of the offences. This will provide a factual context for the appeal and serve to explain the magnitude of the aggregate sentence arising from the Applicant’s grave offences of violence.

14. An Agreed Statement of Facts was tendered on sentence in the District Court which revealed the following.

15. The Applicant met the victim of the s.27 offence, Milena Quintero Naranjo, shortly after she moved to Australia from Colombia in 2011. The Applicant and the victim married in 2012 and had been married for almost three years at the time of the offences. They had taken out a loan together and purchased a unit in 2013. They were both contributing to the mortgage, although the property was in the Applicant’s name only. They began to have relationship difficulties, mainly over financial issues. The victim left her work and began volunteering for an organisation that assisted asylum seekers.

Events up to June 2015

16. In early to mid-2015, after further relationship difficulties, the Applicant and the victim undertook a number of counselling sessions with Relationships Australia.

17. On 14 June 2015, the Applicant told the victim to leave the house after he became angry during a series of arguments. The victim left the house that day, returning two days later with a friend to collect some of her things whilst the Applicant was out of the house.

18. On 18 June 2015, the Applicant began texting the victim and another of her friends. The victim replied by text “Please do not text me. Do not call me at the moment thank you”. That night, an email was sent to the victim’s sister in Colombia and was copied to the victim. The email said in poorly translated Spanish “We are very disappointed with Milena”, that she had “obtained a visa fraudulently” and “I hope she were to die in a car accident and that she has to fly home the body” and “we are aware that she tried to steal money from both myself and my family”.

19. At a later time (on 11 July 2015), police spoke to the Applicant about this email and he admitted that he had sent it to the victim’s sister on 18 June 2015. He denied that he had written words to the effect that he wanted the victim to die with her body being sent back to Colombia.

20. On 19 June 2015, the victim went to the Balmain Police Station and made a statement “in case something happened to [her]”. She stated that she felt very vulnerable and did not want the Applicant to contact or approach her “because I am worried what he will do because he is very controlling”.

21. The Applicant sent another text that evening to a friend of the victim.

22. On 20 June 2015, the victim made a second statement at Glebe Police Station stating that she felt “unsafe to go outside” and outlined her fear that the Applicant would do her physical harm.

23. The Applicant continued to communicate with the victim’s friend between 21 and 23 June 2015, indicating that he wanted to make a separation agreement with the victim.

24. On 25 June 2015, police contacted the Applicant by telephone regarding the victim’s statements. The Applicant was interviewed by police on 11 July 2015 and denied all allegations, alleging that the victim had mental health issues.

Events in August 2015

25. In August 2015, the victim commenced to work at STARTTS (Service for the Treatment and Rehabilitation of Torture and Trauma Survivors) located at an address in The Horsley Drive, Carramar.

26. On 17 August 2015, the Applicant conducted Google searches of a number of subjects on his computer. Among his search history were the victim’s name, “STARRTS Carramar” and the phrase “carotid artery neck”. The Crown relied upon these searches as indicating that the events on 18 August 2015 were premeditated and that the Applicant armed himself with a knife intending to cut the victim’s carotid artery in her neck with an intention to kill.

The Offences Committed on 18 August 2015

27. At about 6.50 am on 18 August 2015, the Applicant drove his car to a service station on The Horsley Drive at Fairfield and filled it with petrol. Having no credit card or money to pay for the petrol, the Applicant left his mobile phone with the attendant and then waited in an area near the victim’s workplace at Carramar for her to arrive at work.

28. At about 8.00 am, the victim arrived at her workplace by motor vehicle. The Applicant then drove and parked his vehicle behind the victim’s vehicle. The victim opened her vehicle door and heard her name being called. She turned and saw the Applicant walk towards her.

29. The victim stayed in her vehicle with the door open and her feet on the ground. The Applicant came up to her and bent down on his knees, putting a hand on her knee whilst his other hand hovered around the outside of his jumper pocket. The Applicant said to the victim “I miss you”.

30. At this point, the victim observed a work colleague, Martha Knox-Haly, walking through the carpark. Ms Knox-Haly asked the victim whether she was all right. The Applicant said “She’s fine. I’m her husband”. The victim quietly asked Ms Knox-Haly to remain and signalled with her hand, but Ms Knox-Haly did not hear the victim and interpreted the gesture as a signal to leave them alone so Ms Knox-Haly backed away.

31. The Applicant moved his hand outside his jumper pocket as the victim said “What’s happening? What’s wrong?”. The Applicant then pulled a silver knife from his pocket and stood up raising the knife. He lunged at the victim’s head and neck area, stabbing her in the forehead, the left chest area and left arm which she had raised to protect herself.

32. Ms Knox-Haly heard the victim’s screams and turned around and saw the Applicant dragging the victim from the vehicle. Ms Knox-Haly shouted “Get away from her” as she approached the Applicant and the victim.

33. As Ms Knox-Haly approached, the Applicant dropped the victim and turned towards Ms Knox-Haly raising the knife above his head and then stabbing Ms Knox-Haly in the skull, causing immediate bleeding. The knife penetrated two-to-three centimetres down to the outer cortex of the left frontal bone, causing a five-by-two millimetre mildly displaced fracture of the bone.

34. Whilst the Applicant attacked Ms Knox-Haly, the victim had collapsed on the ground near the rear bumper of a vehicle parked beside her own vehicle. The Applicant ran back to his vehicle which he reversed and then accelerated forwards directly at the victim, crashing into her and the parked vehicle, narrowly missing Ms Knox-Haly.

35. As the victim tried to raise herself up, the Applicant reversed the vehicle again and then accelerated quickly, crushing the victim between the bumper bar of his vehicle and the parked vehicle. The force of the accelerating vehicle pushed the parked vehicle into a wall, causing damage to the front and rear of the parked vehicle.

36. The Applicant then reversed again and drove out of the carpark onto The Horsley Drive before driving away.

Injuries to the Victim and Ms Knox-Haly

37. A number of persons in the carpark witnessed the incident and a “000” call was made to police. Both the victim and Ms Knox-Haly were conveyed by ambulance to Liverpool Hospital where they were treated for injuries.

38. As a result of the attacks by knife and vehicle, the victim suffered abrasions and bruising to her face and neck and other areas, multiple fractured ribs, a fracture involving the left scapula, several fractured vertebrae and a broken pelvis. She had stab wounds to the left side of her chest and left arm and a laceration to her left forehead. The victim remained in hospital for two weeks, remaining in the intensive care unit for a number of days. Surgery was undertaken with respect to several of her injuries.

39. Ms Knox-Haly sustained a laceration as a result of the stab wound to the top of her head which required sutures. As noted earlier, this injury was sufficiently serious to cause a mildly displaced fracture of the bone.

The Applicant’s Movements After the Offences and his Arrest

40. After leaving the carpark, the Applicant drove and parked his vehicle in an area behind a unit block at Carramar. He then walked onto the CityRail corridor towards Canley Vale.

41. At about 10.30 am, a witness saw the Applicant standing on the inside of the railway line and called police who attended and conveyed him to Fairfield Police Station.

42. The Applicant was interviewed by police and admitted that he took a kitchen knife to the carpark and attacked the victim and Ms Knox-Haly. He said that he brought the knife with him “intending to cut [his] throat in front of [the victim]”. He told police that he “just completely lost it” and that he was in an “absolute rage” because his relationship with the victim had ended six weeks earlier and he was obsessed with her, thinking that she had been having sex with someone else.

43. The Applicant told police that he had been diagnosed with depression and, after he attacked the victim, he had wanted to commit suicide by jumping in front of a train, but he had stopped because he wanted “to take responsibility” for what he had done.

44. The Agreed Facts tendered in the District Court included a statement that the Applicant had been diagnosed with a major depressive illness, although there was no evidence of psychosis or hallucinations, and that he was receiving treatment at the time of the offences on 18 August 2015. The Agreed Facts also noted that Professor David Greenberg was of the opinion that, at the time of the offences, the Applicant was capable of forming an intention to kill, an intention to wound and/or an intention to do grievous bodily harm.

45. Following his arrest on 18 August 2015, the Applicant remained in custody for these offences until he was sentenced on 27 April 2018.

The Applicant’s Subjective Circumstances

46. The Applicant was born in November 1973. He was 41 years old at the time of the offences and 44 years old at the time of sentence. The Applicant has no prior criminal history.

47. The Applicant gave evidence on sentence and a number of documents, including testimonials and psychiatric reports, were tendered in the defence case. Psychiatric reports tendered included reports from Dr William Rowe dated 19 July 2013, Dr Bruce Westmore dated 1 September 2015, Dr Richard Furst dated 11 March 2016 and 8 November 2017 and Professor David Greenberg dated 14 August 2016.

48. In addition, a presentence report dated 3 November 2017 was tendered together with a report of Dr Gary Nicholls of Justice Health dated 9 November 2017.

Some Findings in the Sentencing Remarks

49. The sentencing Judge delivered careful and detailed sentencing remarks which considered all aspects bearing upon sentence in this very serious case. The Applicant’s challenge on sentence is confined to a single ground of appeal. However, reference to parts of the sentencing remarks will assist an understanding of his Honour’s approach to sentence. There is, of course, no ground of appeal which challenges any findings made by the sentencing Judge.

50. The sentencing Judge noted that the Applicant had pleaded guilty to the charges on the day of trial and allowed a discount of 12.5% for the utilitarian value of the pleas of guilty, noting that a discount of slightly more than 12.5% would be applied to the sentence indications to permit those periods to be expressed in years and months rather than in years, months and days (ROS2).

51. The sentencing Judge found that the objective gravity of the offences fell above mid-range, noting the ferocity of the attack upon each of the victims and the persistence with which the Applicant “went after his wife” (ROS4).

52. In the course of making factual findings concerning the offences, the sentencing Judge made the following finding concerning the Applicant’s intention in attacking his wife in the carpark (ROS7-8):

“It is the offender’s case that it was his intention to commit suicide in front of her and that for whatever reason his anger overtook him, he lost control, and he perpetrated these attacks. I do not accept that proposition. It is inconsistent with the range of circumstances which lead inevitably to the only rational conclusion, in my view, that he intended to kill his wife at the time he approached her. I accept that his state of psychological health was such that he might well have been intending to take his own life, but I am not satisfied that was his purpose prior to the commission of these crimes. That is to say, I am not satisfied that he intended to take that course prior to the murder of his wife.”

53. The sentencing Judge referred to the victim impact statements made by the victim and Ms Knox-Haly which “graphically described the horror that they experienced” (ROS12). The sentencing Judge made clear that he did not receive the victim impact statements as evidence in aggravation of the offending or the sentences to which the Applicant was exposed, but that the statements provided the Court “with insight into what these victims experienced in these attacks” (ROS12). His Honour recounted the grave and wide-reaching adverse consequences which had flowed to the victim and Ms Knox-Haly arising from these offences as recorded in the victim impact statements which it is not necessary to repeat in this judgment.

54. The sentencing Judge then turned to the Applicant’s subjective circumstances which were addressed in some detail (ROS17ff). In the course of considering evidence concerning the Applicant, the sentencing Judge stated (ROS17):

“He is now 45 years of age and this gross misconduct is said by counsel to be aberrant behaviour. It can be seen to be so, but in my judgment there is a pattern revealed in the psychologist’s report and the psychiatrist’s report to which I shall come that I find supports the submission made by the Crown that the offender had a misguided and unjustified sense of entitlement in his relationship with his former wife. When she sought to leave what she has said was a toxic environment he chose the path that has put him in the dock before me today.”

55. His Honour considered mental health assessments which were in evidence on sentence (ROS20ff) and the Applicant’s evidence at the sentencing hearing, including a letter written by the Applicant to the sentencing Judge and other documents (ROS32ff).

56. His Honour made the following findings with respect to the Applicant’s moral culpability (ROS35):

“There is to be an assessment made with regard to his moral culpability bringing to account his psychological assessments that are before me, which ultimately are all to the point that he does and has been suffering from major depression and anxiety.

To the extent that this violence was perhaps an aberration, the evolving pattern leading to what occurred was not so, but is to be seen within the context of his life beginning from when he was in school and the bullying that led to the personality that he now has.

The question that had to be resolved in the determination of this matter was when he formed the intention to kill. As I indicated I am satisfied beyond reasonable doubt, drawing together all of the facts and circumstances, that the only rational conclusion to draw is that he intended to kill his wife when he went to these premises. His wish to take his own life, for which he must be given the benefit of the doubt overall upon the evidence that is before me, I find was an act intended after he had completed his crime of specific intent directed towards his wife.”

57. The sentencing Judge found that the offences “were not spontaneous, that there was a measure or planning, and that this is reflected in the fact that he took the knife there and had the tyre lever also” (ROS36).

58. His Honour made further findings concerning aspects which bore on sentence (ROS36):

“The Crown provided written submissions; she summarised the facts and salient points upon which I would come to the view that this was a premeditated event and that the intention must have been formed before his attendance at the place. I am reminded of the grievous injuries suffered by these women. This is a domestic violence offence. The history of the relationship, the threats to his wife’s life, including by way of an email sent to her family in Colombia. She referred to his sense of being discarded once his wife had gained the maturity and the confidence to manage life. General deterrence has a significant role to play in the sentencing exercise, I agree. Indeed all of the purposes of sentencing articulated in s 3A Crimes (Sentencing Procedure) Act 1999 are engaged here. The conduct must be denounced and the impact of these events upon the victims, I agree, must be vindicated with the sentence I am about to impose.”

59. His Honour observed, by reference to the psychiatric evidence and the objective seriousness of the offences (ROS36-37):

“The opinions offered by Dr Furst and Dr Westmore, which are the most favourable to the offender, must be viewed, as the Crown submits, in the context of the level of planning that was evident in the commission of the first crime. The objective seriousness is to be assessed by the context of domestic violence, the level of planning, and the attempt to take his wife’s life in two separate sequences all within an hour timeframe, first using the knife and, secondly, by driving a motor vehicle at her. He thereafter left the scene without offering any assistance. And, of course, in between the attack on his wife by the knife and his attack upon her by the car, he grievously injured the woman who came to her aid.”

60. His Honour had regard to the fact that weapons (a knife and the vehicle) were used in the commission of the offences with this not being taken into account as an aggravating factor, but as a factor to be brought into account “as part of the factual matrix upon which to assess the objective seriousness of these offences” (ROS38).

61. His Honour said with respect to the Applicant’s risk of reoffending and his level of remorse (ROS38):

“Upon whether or not he is likely to offend in the future, the material before me includes opinions that risk of re-offending is low, at least in the pre-sentence report, however the history of bad relationships does not leave me confident that I could conclude that there is limited risk of him re-offending in the future in the absence of more progress toward towards the resolution of the issues identified by these psychiatrists. There is a risk that he cannot cope in a relationship in which he suffers the perception of rejection or abandonment. I accept that he is sincere in his intention or desire to ensure that he does not offend again but these are early days and I am not prepared to conclude that his prospects for rehabilitation are strong or that there is [a] low risk of reoffending. Things I expect will change, however, in the time that he is going to spend in custody. I accept that he is remorseful. It does not appear from the material before me that he has put in issue any of the facts of the offences other than the mental health issues. He has to have the benefit of the plea[s] of guilty as I have indicated to be taken into account in the assessment of the facts and circumstances and including the discount to which I have referred.”

62. His Honour made the following finding concerning a range of factors (ROS39):

“His psychological condition impacts upon the assessment of moral culpability, I accept. It remains however that such a crime does attract considerations relevant to general deterrence and specific deterrence. Moreover this conduct must be denounced. There must be recognition of the harm suffered by these victims. The sentence and its length will do much to fulfil the obligation to rehabilitate the offender, to the extent that the sentence might, and ultimately one hopes that the community will be protected from him.”

63. In concluding his sentencing remarks and moving to the point where there was reference to the sentence indications and the aggregate sentence, his Honour stated (ROS39-40):

“There were two discreet attacks upon the wife within a narrow timeframe. The first was with the knife and the second using a motor vehicle. The injuries she suffered are properly described as grievous. In between those two discreet attacks, he was seen to drop his wife on the ground after dragging her from the vehicle. He turned to the second victim who approached and then struck her with sufficient force to drive the knife through her skull causing also grievous injury.

The proposition that he intended to commit suicide in front of his wife is not consistent with the objective circumstances which I have drawn together to lead to the conclusion that he intended to murder her before taking his own life, if that was his intention. I am satisfied that he formed the intention to kill his wife the night before or at least at the point when he was determining how he might go about severing the carotid arteries as he has admitted in respect of himself. To conclude otherwise is inconsistent with the fact that he went to these premises armed with a knife, that he had also available a tyre lever, that he waited for her, that he stopped his car behind hers, that he approached her and engaged in conversation and then lunged at her forthwith and thereafter entered his motor vehicle after the intervention by the second victim and drove at her at least twice, leading to the orthopaedic damage that she suffered. The ferocity with which he attacked her is another factor that I brought into account, together with the ferocity of the attack upon the second victim.”

64. The sentencing Judge gave the following sentence indications and made a finding of special circumstances (ROS42):

“But for the pleas of guilty I would have imposed on the first count a sentence of 20 years imprisonment. But for the plea of guilty on the second offence I would have imposed a sentence of 13 years imprisonment. I have applied the discount of 12.5% in the case of the first offence. That brings me to a sentence of 17 years and six months with a non-parole period of 12 years. In respect of the second offence with adjustment bringing the sentence down by years and months, that brings me to a sentence of 11 years and three months with a non-parole period of eight years. There are special circumstances I accept. The offender needs to have an extended period on parole during which to continue with the rehabilitation that has been commenced.

The custodial component of these sentences however in aggregate must be sufficient to reflect what he has done and what these women suffered. I propose an aggregate sentence of 21 years with a non-parole period of 14 years.”

65. As the s.27 offence involved the use of a motor vehicle, his Honour was satisfied that there ought be a period of disqualification and imposed a disqualification period of two years, with Roads and Maritime Services to calculate the time when that period commences and its duration in accordance with statutory provisions governing those matters (ROS43).

The Sole Ground of Appeal - Claim of Error in the Notional Accumulation of Indicative Sentences in Determining the Aggregate Sentence

Submissions of Applicant

66. The narrow ground of appeal advanced in this Court relates to the concept of notional accumulation of the sentence indications for the purpose of the fixing of an aggregate sentence.

67. Mr Lange submitted that, regardless of how the indicative sentences might be accumulated in this case, it is simply not possible to arrive at a sentence consistent with the aggregate sentence imposed by the sentencing Judge. He submitted that, if the sentence on Count 1 was accumulated upon the sentence for Count 3, a non-parole period of 14 years results in a head sentence of 19 years and six months. Conversely, it was submitted, a head sentence of 21 years yields a non-parole period of 15 years and six months. Counsel submitted that either sentence would be consistent with his Honour’s finding of special circumstances with the two sentences having a ratio between head sentence and non-parole period of 71.8% and 73.8% respectively.

68. Mr Lange submitted that the provisions allowing aggregate sentencing in New South Wales, as introduced in 2010, were intended to make a limited modification only to the principles in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, with the modification confined to removal of the requirement to include commencement and conclusion dates for the sentence indications. He submitted that the approach of the sentencing Judge in the present case served to “mask error” in the sense described in Pearce v The Queen at [45].

69. Counsel submitted that a sentencing Judge is required to undertake mental calculations as part of this process in the form of a “shadow exercise” to be undertaken with the sentence indications and the aggregate sentence in compliance with the requirements of Pearce v The Queen (T16, 16 October 2019). None of this, he submitted, was removed by the 2010 amendments providing for aggregate sentencing.

70. Counsel submitted that analysis of the indicative sentences in this case demonstrates error, notwithstanding the fact that any appeal must be against the aggregate sentence and not the indicative sentences: R v Brown [2012] NSWCCA 199 at [17].

71. Counsel submitted that the alleged error in this case is analogous to that considered in R v Rae [2013] NSWCCA 9, where Button J (Macfarlan JA and Price J agreeing) said at [42]-[46]:

“42   It is true that, pursuant to the new procedure, a single aggregate sentence was imposed reflecting the criminality of all three offences. Therefore to speak of questions of partial accumulation is perhaps not entirely apt.

43   However, I consider that Parliament called for sentencing judges and magistrates to indicate the sentences that would have been imposed with regard to individual charges or counts so that an analysis of the kind that the Crown has asked this Court to undertake is available.

44   It may be that there was, with respect, perhaps some misunderstanding as to the relationship that an aggregate head sentence must have to indicative head sentences. It is noteworthy that, as I have said, his Honour imposed an aggregate head sentence that is identical with the longest indicative head sentence in circumstances in which both parties accepted that there must be partial accumulation.

45   Of course, the newly available option of aggregate sentencing will free sentencing judges and magistrates from the laborious and complicated task of creating a cascading or ‘stairway’ sentencing structure when sentences for multiple offences are being imposed and partial accumulation is desired. That will be especially beneficial in cases where an offender is to be dealt with for a very large number of offences. However, merely because an offender is to receive an aggregate sentence does not mean that considerations of accumulation, whether partial or complete, need no longer be taken into account.

46   In all of the circumstances outlined by me above, I consider that the submission of the Crown has force. I consider that it was an error for the aggregate head sentence not to reflect some degree of cumulation as between the three offences. In particular, I consider that the conclusion is unavoidable that the separate and serious criminality encompassed by the first offence should have led to some implicit accumulation upon the indicative head sentence expressed for the second offence, and that accumulation should have been reflected in the aggregate head sentence.”

72. It was submitted that support for the Applicant’s ground of appeal could be found in the judgment of this Court in JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [39](4)-(8).

73. Mr Lange submitted that the statutory requirement to give sentence indications allows the Court to engage in an analysis of the correctness of the aggregate sentence. He submitted that, whilst the sentencing Judge had complied with the requirement under s.53A(2)(b), as well as the requirement to specify the respective non-parole periods in accordance with ss.44(2B) and 54B Crimes (Sentencing Procedure) Act 1999, an error had occurred in the application of the principle of totality.

74. Counsel submitted that the alleged miscalculation was of significance and may well have affected the aggregate sentence to the detriment of the Applicant so that it was necessary for the Court to exercise the sentencing discretion afresh for the purpose of s.6(3) Criminal Appeal Act 1912: Bao v R [2016] NSWCCA 16 at [45].

Submissions of the Crown

75. The Crown submitted that a fundamental flaw in this ground of appeal is that it wrongly equates indicative sentences with real or substantive sentences, whereas the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 make it clear that there is no requirement for the sequential accumulation of indicative sentences. It was emphasised that s.53A(2) makes clear that the sentencing Judge is to “indicate to the offender” the sentence that would have been imposed, but not to fix a sentence for each offence.

76. The Crown submitted that the Applicant contends incorrectly that sentencing courts are obliged to accumulate or partially accumulate indicative sentences upon one another in a sequential or cascading fashion, in order to reach a matching aggregate head sentence and aggregate non-parole period, whereas the long-standing difficulty with this cascading approach (which was required as a matter of practicality by Pearce v The Queen) was precisely why s.53A Crimes (Sentencing Procedure) Act 1999 was enacted.

77. The Crown submitted that it is clear that what are referred to regularly by the courts as “indicative sentences” are not, in reality, substantive sentences of imprisonment, with this being a shorthand term for what is indicated to the offender of what is comprised within the aggregate sentence. Nothing in the legislation requires these nominal sentences to have starting or finishing dates or to be accumulated as if they were actual terms of imprisonment.

78. It was submitted that the Applicant’s approach amounted to an attempt to return to sentencing in accordance with Pearce v The Queen, contrary to the statutory scheme for aggregate sentencing now contained in the Crimes (Sentencing Procedure) Act 1999.

79. The Crown submitted that there was clearly a significant degree of notional concurrency, as well as a degree of notional accumulation, in arriving at the aggregate sentence imposed by the sentencing Judge.

80. The Crown submitted that there was no requirement for his Honour to accumulate the sentence indications in a sequential or uniform way.

81. It was submitted that, if anything, it appears that when the sentencing Judge arrived at the aggregate non-parole period, there was a greater reduction for special circumstances for the aggregate sentence (to a ratio of 66.6%) than for the sentence indications (which had ratios of 71.8% and 73.8% respectively). The Crown submitted that it was essentially this perceived anomaly about which the Applicant now seeks to complain, when the suggested anomaly provided a generous reduction to the Applicant in the non-parole period which formed part of the aggregate sentence.

82. Even if the arithmetical approach raised for the Applicant was applied in this case, the Crown submitted that an understanding of the sentencing outcome contained in the aggregate sentence in fact flowed from the sentence indications for the two offences.

83. The Crown submitted that this Court has consistently interpreted the aggregate sentencing legislation to allow sentencing Courts a wide discretion: Kerr v R [2016] NSWCCA 218 at [114]; JM v R at [8]; Cullen v R [2014] NSWCCA 162 at [25]-[26]; McIntosh v R [2015] NSWCCA 184 at [135]-[137].

84. It was submitted that none of the authorities relied upon by the Applicant assisted this ground of appeal.

85. The Crown referred, as well, to the second reading speech in support of the Crimes (Sentencing Procedure) Amendment Act 2010 where the Minister explained the rationale for introducing a system of aggregate sentencing (to which reference will be made later in this judgment).

86. The Crown submitted that no error had been demonstrated as asserted in the ground of appeal.

Decision

87. In my view, the Applicant’s submissions in support of this ground of appeal are based upon a misconception concerning the operation of the statutory provisions providing for aggregate sentencing in this State.

88. Sections 53 and 53A Crimes (Sentencing Procedure) Act 1999 provide as follows:

“53    Multiple sentences of imprisonment

(1)    When a court imposes a sentence of imprisonment on an offender in relation to more than one offence, the court must (unless imposing an aggregate sentence of imprisonment in accordance with section 53A) comply with the requirements of this Division by imposing a separate sentence in relation to each offence.

(2)    The term, and any non-parole period, set under this Division in relation to a sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence.

53A    Aggregate sentences of imprisonment

(1)    A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.

(2)    A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following—

(a)    the fact that an aggregate sentence is being imposed,

(b)    the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence.

(3)    Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4)    The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence.

(5)    An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section.”

89. When imposing an aggregate sentence for two or more offences, a Court may set one non-parole period for all the offences after setting the term of the head sentence: s.44(2A). The balance of term of the aggregate sentence must not exceed one-third of the non-parole period unless special circumstances are found: s.44(2B).

90. The only operative sentence imposed by the Court is the aggregate sentence under this statutory scheme. The Court is required to indicate sentences for the purpose of understanding the components of the aggregate sentence in general terms. However, the Court does not pass indicative sentences. The periods indicated by the sentencing Court have no practical operation at all.

91. The principles of sentencing concerning accumulation and concurrency at general law, as explained in Pearce v The Queen, have no application where an aggregate sentence is used by the sentencing Court. The principle of totality has operation with the sentencing Court to undertake that task bearing in mind totality: ZA v R (2017) 267 A Crim R 105; [2017] NSWCCA 132 at [68]-[84].

92. The seminal explanation of the aggregate sentencing provisions is contained in the judgment of R A Hulme J (Hoeben CJ at CL an Adamson JJ agreeing) in JM v R at [39]-[40]. In the course of explaining the operation and effect of s.53A, R A Hulme J referred to principles in Pearce v The Queen which remain applicable after the introduction of aggregate sentencing. His Honour said at [39]-[49]:

“39    A number of propositions emerge from the above legislative provisions and the cases that have considered aggregate sentencing:

1.    Section 53A was introduced in order to ameliorate the difficulties of applying the decision in Pearce v The Queen [1998] HCA 57; 194 CLR 610 in sentencing for multiple offences: R v Nykolyn [2012] NSWCCA 219 at [31]. It offers the benefit when sentencing for multiple offences of obviating the need to engage in the laborious and sometimes complicated task of creating a ‘cascading or ‘stairway’ sentencing structure’ when the principle of totality requires some accumulation of sentences: R v Rae [2013] NSWCCA 9 at [43]; Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [231]; Behman v R [2014] NSWCCA 239; R v MJB [2014] NSWCCA 195 at [55]-[57].

2.    When imposing an aggregate sentence a court is required to indicate to the offender and make a written record of the fact that an aggregate sentence is being imposed and also indicate the sentences that would have been imposed if separate sentences had been imposed instead (the indicative sentences): s 53A(2). The indicative sentences themselves should not be expressed as a separate sentencing order: R v Clarke [2013] NSWCCA 260 at [50]-[52]. See also Cullen v R [2014] NSWCCA 162 at [25]-[40].

3. The indicative sentences must be assessed by taking into account such matters in Part 3 or elsewhere in the Crimes (Sentencing Procedure) Act as are relevant: s 53A(2)(b).

There is no need to list such matters exhaustively, but commonly encountered ones in Part 3 include aggravating, mitigating and other factors (s 21A); reductions for guilty pleas, facilitation of the administration of justice and assistance to law enforcement authorities (ss 22, 22A and 23); and offences on a Form 1 taken into account (Pt 3 Div 3). Commonly encountered matters elsewhere in the Act are the purposes of sentencing in s 3A, and the requirements of s 5 as to not imposing a sentence of imprisonment unless a court is satisfied that there is no alternative and giving a further explanation for the imposition of any sentence of 6 months or less.

SHR v R [2014] NSWCCA 94 is an example of a case where a sentencing judge took pleas of guilty into account only in relation to the aggregate sentence, and not in relation to the indicative sentence. This was held (at [35]-[43]) to be in breach of the requirement in s 53A(2)(b). Khawaja v R [2014] NSWCCA 80 is another example. Martin v R [2014] NSWCCA 124 is a case in which a sentencing judge was held (at [17]) to have correctly taken into account pleas of guilty in relation to the indicative sentences.

In JL v R [2014] NSWCCA 130 at [54] it was said by way of conclusion in an appeal against the asserted severity of a sentence that ‘The starting point for the aggregate sentence of 24 years before the allowance of a discount of 25 per cent to reflect the utilitarian value of the early pleas of guilty was not excessive’. This must be understood as a broad assessment within the conclusion rather than indicating that it is the aggregate sentence to which the discount should be applied. Stoeski v R [2014] NSWCCA 161 is anomalous in that at [33]-[34] it rejected a complaint that the sentencing judge had not discounted the aggregate sentence for the plea of guilty rather than rejecting the assertion that the discount applied to the aggregate sentence at all.

4.    It is still necessary in assessing the indicative sentences to have regard to the requirements of Pearce v The Queen [1998] HCA 57; 194 CLR 610. The criminality involved in each offence needs to be assessed individually. To adopt an approach of making a ‘blanket assessment’ by simply indicating the same sentence for a number of offences is erroneous: R v Brown [2012] NSWCCA 199 at [17], [26]; Nykolyn v R, supra, at [32]; [56]-[57]; Subramaniam v R [2013] NSWCCA 159 at [27]-[29]; SHR v R, supra, at [40]; R v Lolesio [2014] NSWCCA 219 at [88]-[89]. It has been said that s 53A(2) is ‘clearly directed to ensuring transparency in the process of imposing an aggregate sentence and in that connection, imposing a discipline on sentencing judges’: Khawaja v R, supra, at [18].

5.    The imposition of an aggregate sentence is not to be used to minimise the offending conduct, or obscure or obliterate the range of offending conduct or its totality: R v MJB, supra, at [58]-[60].

6.    One reason why it is important to assess individually the indicative sentences is that it assists in the application of the principle of totality. Another is that it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence: Nykolyn v R, supra, at [58]; Subramaniam v R, supra, at [28]. A further advantage is that it assists when questions of parity of sentencing as between co-offenders arise: R v Clarke, supra, at [68], [75].

7.    Non-parole periods need not be specified in relation to indicative sentences except if they relate to an offence for which a standard non-parole period is prescribed: ss 44(2C) and s 54B(4); AB v R [2014] NSWCCA 31 at [9].

8.    Specification of commencement dates for indicative sentences is unnecessary and is contrary to the benefits conferred by the aggregate sentencing provisions: AB v R, supra, at [10]. Doing so defeats the purpose of a court availing itself of the power to impose an aggregate sentence: Behman v R [2014] NSWCCA 239 at [26]. See also Cullen v R, supra, at [25]-[26].

9.    If a non-custodial sentence is appropriate for an offence that is the subject of the multiple offence sentencing task, it should be separately imposed as was done in Grealish v R [2013] NSWCCA 336. In my respectful view, there was error involved in Behman v R [2014] NSWCCA 239 where an offence with an indicative, but unspecified, non-custodial sentence was included in an aggregate sentence imposed by this Court. The provision for imposing an aggregate sentence in s 53A appears within Part 4 of the Crimes (Sentencing Procedure) Act which is headed ‘Sentencing procedures for imprisonment’, and within Division 1 of that Part which is headed ‘Setting terms of imprisonment’.

40   The following further propositions emerge from the cases in relation to appellate review of aggregate sentencing exercises:

10.    Another benefit of the aggregate sentencing provision is that it makes it easier on appeal to impose a new aggregate sentence if one of the underlying convictions needs to be quashed: R v Brown, supra, at [51]; FP v R [2012] NSWCCA 182; 224 A Crim R 82 at [327]-[329]; Nykolyn v R, supra, at [58]-[59]; Subramaniam v R at [28].

11.    The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence: R v Brown, supra, at [17]; Nykolyn v R, supra, at [58]; PD v R [2012] NSWCCA 242 at [44]; R v Rae [2013] NSWCCA 9 at [32]-[33], [42]-[43]; Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [218], [227]; Subramaniam v R, supra, at [28]; SHR v R, supra, at [40]; R v Clarke, supra, at [56]; Martin v R [2014] NSWCCA 124 at [47]; JL v R [2014] NSWCCA 130 at [17]; Stoeski v R, supra, at [43]; CL v R [2014] NSWCCA 196 at [53]-[55].

12.    Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive: PD v R at [44],[82]; BJS v R [2013] NSWCCA 123 at [252]-[254].

13.    A principle focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved: R v Brown, supra, at [37]; R v Rae, supra, at [42]-[46], [62], [69]. This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures: Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [231]; Martin v R, supra, at [33]-[41].

14.    Erroneous specification by a sentencing judge of commencement dates for indicative sentences (such as there being gaps between the expiry of some indicative sentences and the commencement of subsequent sentences) are immaterial and may be ignored as being otiose: AB v R, supra, at [10], [67].

15.    A failure of a judge to specify a non-parole period in the indicative sentence for a standard non-parole period offence will not lead to an appeal being upheld. Failure to do so does not invalidate the sentence: s 54B(7). Setting non-parole periods for the indicative sentences for standard non-parole period offences would have no effect upon the aggregate sentence imposed: Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [214]-[218].”

93. Contrary to the Applicant’s submissions, I do not think that the Applicant is assisted by anything said in JM v R. There is no support in JM v R for a sentencing Judge to undertake a “shadow exercise” of the type argued for the Applicant in this case (see [69] above).

94. Nor do I consider that the Applicant is assisted in this case by the part of R v Rae referred to earlier (at [71] above). The problem in R v Rae was that the sentencing Judge passed an aggregate sentence in identical terms to the indicative sentence for one of the offences for which the offender was to be sentenced. The aggregate sentence encompassed other serious offences for which significant sentences were indicated, but these offences were “not reflected by way of implicit accumulation in the aggregate sentence”: R v Rae at [35]. In this context, Button J said at [38]:

“It may be accepted that sentencing judges who are dealing with multiple offences have a very wide discretion as to questions of accumulation, concurrence, and partial accumulation and partial concurrence. However, it is not easy to understand how it is that the aggregate head sentence seemingly reflects none of the criminality of, at the least, the first offence, reflecting as that offence did a serious, planned break enter and steal in company that was entirely separate from the second offence, and that was committed by an offender who had previously been sentenced to imprisonment for a property offence.”

95. What occurred in R v Rae was a variation of the problem referred to in JM v R at [39](4) (see [92] above). The impermissible “blanket assessment” referred to by R A Hulme J in that paragraph was criticised in decisions of this Court before the introduction of aggregate sentencing by reference to the principles in Pearce v The Queen: Porter v R [2008] NSWCCA 145 at [72]-[74].

96. The present case is far removed from the circumstances referred to in R v Rae and JM v R at [39](4). Here, a blanket approach was not adopted.

97. Since the introduction of aggregate sentencing, it has been said that absolute precision in specifying the degree of accumulation would be tantamount to expressing commencement dates for each indicative sentence contrary to one of the rationales for the introduction of aggregate sentencing: Beale v R [2015] NSWCCA 120 at [4]; JM v R at [34]-[40]; ZA v R at [88].

98. I do not think that the Applicant’s submissions are supported by the second reading speech for the Crimes (Sentencing Procedure) Amendment Bill 2010. In the course of that speech, the Parliamentary Secretary, Mr Veitch, stated that “the bill implements a form of aggregate sentencing to simplify sentencing for multiple offences”. Later in the second reading speech, the Parliamentary Secretary said (Hansard, Legislative Council, 23 November 2010):

“However, it remains important for a number of reasons for there to be some indication given of the respective sentence that would have been imposed had each offence been dealt with directly. These reasons include: the transparency of the sentencing process, the comfort to victims accorded by an explicit recognition of the level of criminality involved in the specific crimes committed against them, the benefits in publicly recognising the particular aggravating and mitigating factors of an offence as required under the Act, and to assist appeal courts in resentencing offenders after successful appeals or in identifying where errors in the sentencing process may have occurred where such errors may have been ‘masked’ by the aggregation of the sentence into a single term of imprisonment. As such, the new provisions require that the court is to give such an indication of the head sentence that would have been imposed, taking into account discounts and other factors, and each offence's relative weight in determining the overall sentence. What will not be required is the need to set the precise commencement and expiry dates of sentences that are to be served partially concurrently or consecutively. It need set only one non-parole period and one overall sentence and comply with the other requirements of the division with respect to that overall sentence.

The court will still retain discretion in setting the appropriate length of the overall sentence, taking into account the principle of totality. For the reasons outlined above, the indication with respect to each offence is intended to provide an adequate indication of the criminality attaching to each offence, but it should not be construed by courts as requiring them to give an indication that is so detailed that they are effectively sentencing the offender for each offence separately in any case. The court will also not be required to give an indication of the non-parole period that would have applied to each sentence except, as indicated earlier, when the offence is one to which a standard non-parole period applies. It should be sufficient to indicate what a total sentence for a particular offence would have been taking into account any discounts or other factors that might have applied.”

99. The approach contended for by the Applicant would be inconsistent with the regime of aggregate sentencing now contained in the Crimes (Sentencing Procedure) Act 1999. That construction would not promote the purpose or object of the aggregate sentencing provisions: s.33 Interpretation Act 1987. Further, any requirement to undertake, in every case where aggregate sentencing is to be used, a type of “shadow exercise” as submitted by the Applicant (see [69] above) would not only defeat the purpose of aggregate sentencing, but also render more complicated, burdensome and time-consuming the task of sentencing Judges serving in already busy criminal Courts.

100. The suggested arithmetical or calculation errors contended for by the Applicant are misconceived. It would be wrong to consider the indications of the sentencing Judge and treat them as if they were actual and operative sentences with a view to translating them, in some way, into a total sentence which has been calculated by reference to the principles in Pearce v The Queen.

101. Further, as the Crown has submitted, a true understanding of the aggregate sentence and the process of notional accumulation which was undertaken by the sentencing Judge in this case must have regard to the actual outcome, whereby a substantial allowance was made following a finding of special circumstances so that the non-parole period comprised 66.6% of the total term of the aggregate sentence, a significantly lower figure than the non-parole periods included in the individual indications.

102. The sentencing Judge in this case complied with the requirements of ss.53A and 54B. The course taken in this case also served the purposes of the aggregate sentencing provisions as explained in the second reading speech for the 2010 Bill. Sentence indications were given for each offence which complied with s.53A(2)(b). His Honour then applied the totality principle and the special circumstances test in s.44(2B) Crimes (Sentencing Procedure) Act 1999 for the purpose of reaching a discretionary determination as to an appropriate head sentence and non-parole period as components of the aggregate sentence. No more was required by way of a suggested “shadow exercise” in determining sentence.

103. The short answer to the ground of appeal advanced by the Applicant is that no error is demonstrated so that the ground fails. Accordingly, there is no occasion for the Court to exercise its function under s.6(3) Criminal Appeal Act 1912.

Some Further Observations

104. However, some further observations are pertinent in this case.

105. The Applicant’s challenge in this Court involves a technical issue far removed from the factual circumstances of the case and an examination of the grave crimes committed by the Applicant for which the aggregate sentence was passed.

106. These were two very serious crimes of violence involving attacks upon two separate victims. The attack upon the victim, which gave rise the offence of causing grievous bodily harm with intent to murder under s.27 Crimes Act 1900, was especially grave given the intention to kill the victim which the Applicant undertook by way of separate attacks by knife and by motor vehicle. The gravity of offending of this type has been emphasised recently by this Court in R v Amati [2019] NSWCCA 193 at [87]-[111].

107. As noted in R v Amati at [87], it is not uncommon for s.27 offences “to be committed by persons who were, at the time, experiencing a significant mental disorder and had no prior criminal history”.

108. Further, as the sentencing Judge recognised, the s.27 offence was a serious domestic violence offence where the Applicant sought to exercise control and domination over his wife as if he had an entitlement to do so: Cherry v R [2017] NSWCCA 150 at [76]-[77]. His intention, of course, was to kill his wife.

104. A separate and grave offence of wounding with intent to cause grievous bodily harm under s.33(1)(b) Crimes Act 1900 was committed against Ms Knox-Haly who had bravely come to the aid of her work colleague who was under homicidal attack in the carpark of their workplace. The Applicant used a knife to attack the head of Ms Knox-Haly in what were clearly terrifying circumstances.

105. In sentencing the Applicant for separate serious crimes of violence committed against different victims, it was necessary for the aggregate sentence to reflect the fact, by way of notional accumulation, that there were two persons who were attacked in a related course of events. It was necessary that the aggregate sentence imposed actually reflect the fact that there were separate victims of these crimes and to recognise the harm done to the victims of the crimes and the community: s.3A(g) Crimes (Sentencing Procedure) Act 1999; R v Amati at [113]-[115].

106. These points are made by reference to the facts of the case so as to emphasise the gravity of the Applicant’s offending which was reflected in the magnitude of the aggregate sentence imposed by the sentencing Judge.

Conclusion

112. The Applicant has not made good the single ground of appeal advanced on his behalf.

113. There is no ground of appeal contending there was any other error in the sentencing process nor that the aggregate sentence itself was manifestly excessive. This approach is understandable as the sentencing Judge undertook a detailed, careful and balanced approach in reaching sentence in this case. So much is clear from the extracts from the sentencing remarks set out earlier in this judgment.

114. I do not consider that the ground of appeal advanced for the Applicant has sufficient merit to warrant an extension of time to bring an application for leave to appeal against sentence. I have kept in mind the substantial aggregate sentence imposed in this case. However, the sole ground of appeal is a technical one directed to one aspect of the sentencing process only. Having regard to factors relevant to the exercise of discretion to extend time to bring an appeal (see [10] above), an extension of time should not be granted in this case.

115. I decline to extend time for the Applicant to seek leave to appeal against sentence.

116. R A HULME J: I agree with the comprehensive reasons provided by Johnson J and the order he proposes.

117. The applicant's argument proceeds on a premise that the indicated sentence for one offence is "accumulated" upon the sentence for another offence. However, in setting an aggregate sentence, a judge does not need to assess a precise degree of accumulation at all. The judge simply determines the aggregate sentence by assessing what is appropriate to reflect the totality of criminality in all of the offending. Quite commonly, there are references to there being "notional accumulation" – but if such a reference is apt at all, sight should not be lost of the fact that it is truly something that is "notional".

118. The fallacy in the applicant's argument as to the intention of Parliament in introducing the regime for aggregate sentencing in 2010 is evident from the fact that a sentencing court is only required to indicate the term of individual sentences that would have been imposed: s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act). It is necessary to also indicate the non-parole component of any such individual sentence only if the offence is one for which a standard non-parole period is prescribed: ss 44(2C) and 54B(4) of the Act. Accordingly, Parliament cannot have intended that the only modification to sentencing for multiple offences was to remove the requirement to include commencement and conclusion dates for individual sentences: Cf the applicant's submissions summarised by Johnson J at [68]-[69].

119. It is notable that this issue has been raised in a case in which each of the offences were ones for which standard non-parole periods are prescribed. If one, or none, of the offences was a standard non-parole period offence, and so there was only a need pursuant to s 53A(2)(b) to indicate the term of the individual sentence(s) that would have been imposed, the applicant would have no argument at all.

120. The majority of cases in which aggregate sentences are imposed do not involve offences where each has a prescribed standard non-parole period. The Table in Pt 4 Div 1A of the Act prescribes standard non-parole periods for the offences listed therein (and they are excluded from applying in certain circumstances listed in s 54D). Standard non-parole periods are not prescribed in respect of the vast majority of criminal offences.

121. During the course of the hearing of the application, Mr Lange readily accepted that the indicative sentences and the aggregate sentence were "okay". He acknowledged that it was his case that "it's a technical aspect in the specification of non-parole periods for the indicative sentences that brings it all undone". (T6.46) A case based solely upon an asserted "error of process" founded upon a highly technical, but specious, argument has taken the time the Court could have been dealing with another case with genuine merit.

122. For the reasons provided by Johnson J, and these additional reasons, I agree that an extension of time to seek leave to appeal should be refused.

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Decision last updated: 06 February 2020