Wood v R

[2019] NSWCCA 309

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Wood v R [2019] NSWCCA 309
Hearing dates:	18 November 2019
Decision date:	19 December 2019
Before:	Hoeben CJ at CL at [1]; Price J at [180]; Campbell J at [186]
Decision:	(1)   Leave to appeal against sentence is granted. (2)   The appeal against sentence is allowed. (3)   The sentence imposed by Bellew J on 14 December 2018 is quashed. (4)   In lieu thereof, the applicant is sentenced to imprisonment for a period of 24 years, commencing 30 September 2017 and expiring 29 September 2041, with a non-parole period of 18 years expiring 29 September 2035.
Catchwords:	CRIMINAL LAW – sentence appeal – murder – long history of domestic violence – whether sentencing judge properly dealt with subjective issues and those going to objective seriousness of the offending – to what extent should the sentencing judge have taken into account previous convictions as a matter of aggravation – was the fact that offender on conditional liberty at time of offence a matter of aggravation – whether sentencing judge properly took into account the offender’s lack of planning – whether sentencing judge properly took into account the offender’s disadvantaged background – whether it was open to the sentencing judge to find that the offender’s intoxication was a matter of aggravation – whether sentencing judge erred in finding that the offender’s offending involved gratuitous cruelty – whether sentence was manifestly excessive – whether “comparative cases” should be taken into account on re-sentence – appeal allowed and offender re-sentenced.
Legislation Cited:	Crimes Act 1914 (Cth) – s 20(1)(b) Crimes Act 1900 (NSW) – s 18(1)(a) Crimes (Domestic and Personal Violence) Act 2007 (NSW) – s 14(1) Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 21A, 59 Criminal Code 1995 (Cth) – s 474.17(1)
Cases Cited:	Archer v R [2017] NSWCCA 151 Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cherry v R [2017] NSWCCA 150 Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41 DPP v Darcy-Shillingsworth [2017] NSWCCA 224 Elhassan v R [2018] NSWCCA 118 Hili v The Queen: Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hilier v Director of Public Prosecutions (NSW) [2009] NSWCCA 312 Ingrey v R [2016] NSWCCA 31 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 King v R [2015] NSWCCA 99 Majzoub v Regina [2019] NSWCCA 94 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439 Mendes v R [2012] NSWCCA 103 Moore v R [2019] NSWCCA 264 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 Patsan v R [2018] NSWCCA 129 Pham v R [2014] NSWCCA 115 R v Archer [2015] NSWSC 1487 R v Boyd (No 2) [2018] NSWSC 380 R v Coleman (1990) 47 A Crim R 306 R v Crickitt (No 2) [2017] NSWSC 542 R v Darbanou [2018] NSWSC 1672 R v Gagalowicz [2005] NSWCCA 452 R v Homann [2018] NSWSC 757 R v Hosseiniamraei [2016] NSWSC 1181 R v Irwin [2019] NSWCCA 133 R v Kilic (2016) 259 CLR 256; [2016] HCA 48 R v Mahon [2015] NSWSC 25 R v McNaughton (2006) NSWLR 566; [2006] NSWCCA 242 R v Murray [2015] NSWSC 1034 R v Ruttley (No 7) [2017] NSWSC 1582 R v Sjahadi [2013] NSWSC 540 Regina v Walker [2005] NSWCCA 109 Smith v R [2011] NSWCCA 163 Stanford v Regina [2007] NSWCCA 73 TL v R [2017] NSWCCA 308 Turnbull v R [2019] NSWCCA 97 Vandeventer v R [2013] NSWCCA 33 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14
Category:	Principal judgment
Parties:	Russell Brian Wood – Applicant Regina – Respondent Crown
Representation:	Counsel: H Dhanji SC/Mr A Wong – Applicant B Baker – Respondent Crown   Solicitors: Legal Aid NSW – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2017/295773
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Wood [2018] NSWSC 1855 Date of Decision: 14 December 2018 Before: Bellew J File Number(s): 2017/295773

JUDGMENT

1. HOEBEN CJ at CL:

Introduction

The applicant seeks leave to appeal against the sentence imposed upon him by Bellew J (the sentencing judge) on 14 December 2018 in the Supreme Court for the murder of Sarah Brown (the deceased). The sentence also took into account an offence of knowingly contravene a prohibition or restriction in an Apprehended Violence Order (AVO) contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) on a Form 1.

2. The offence of murder has a maximum penalty of life imprisonment and a 20 year standard non-parole period. The offence of knowingly contravene an AVO attracts a maximum penalty of 2 years imprisonment and/or 50 penalty units.

3. Taking into account the Form 1, his Honour imposed a sentence with a non-parole period of 19 years 1 month, commencing 30 September 2017 and expiring 29 October 2036, with a balance of term of 6 years and 5 months expiring on 29 March 2043.

4. His Honour allowed a 25 per cent discount for the applicant’s early plea. The starting point before discount was 34 years imprisonment. The ratio of the non-parole period to the head sentence was slightly below three-quarters, i.e. 74.8 per cent.

5. The applicant sought leave to appeal on seven grounds:

Ground 1 – The learned sentencing judge erred in having regard to the applicant’s record of previous convictions as a matter that aggravated the offence

Ground 2 – The learned sentencing judge erred in taking into account the fact that the applicant was on conditional liberty as a factor that aggravated the offence

Ground 3 – The learned sentencing judge erred in failing to have regard to the lack of planning in assessing the objective seriousness of the offence

Ground 4 – The learned sentencing judge erred by failing to take into account the applicant’s disadvantaged background as a factor relevant to his moral culpability

Ground 5 – The learned sentencing judge erred in finding that the applicant’s intoxication aggravated the applicant’s offending

Ground 6 – The learned sentencing judge erred in finding that the Crown had proven beyond reasonable doubt that the applicant’s offending involved gratuitous cruelty

Ground 7 – The sentence is manifestly excessive

Factual background

6. The facts giving rise to the offence were set out in a “Proposed Facts Documents” which was not challenged. It was common ground that the sentencing judge accurately summarised the factual background in his Reasons for Sentence (Reasons).

7. On 5 October 2018 Russell Brian Wood (the applicant) pleaded guilty to a charge that on 30 September 2017, at Whalan in the State of NSW, he murdered the deceased. That is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The Crown did not submit that a life sentence was appropriate.

8. At the time of the offending, the applicant was 26 years of age and the deceased was 34 years of age. The deceased was the mother of five children, ranging in ages from 18 to 6. The three youngest children lived with her.

9. The applicant and the deceased had been in what was described as an “on again/off again relationship” since approximately October 2015. The relationship was characterised by domestic violence. On a number of occasions, family members and friends had observed the deceased to have injuries including black eyes and bruising to her arms. The deceased told family and friends that the applicant was responsible for these injuries and that he had put his hands around her throat on a number of occasions. On one particular occasion in July 2016, an ambulance and police were called to the deceased’s home. The deceased was transported to hospital with injuries to her head and face. The deceased’s 14 year old daughter was present on that occasion and had witnessed part of this assault. The deceased presented at hospital with swelling and bruising on her forehead, right cheek and right parietal area and a laceration to her lower lip.

10. Approximately a week before the deceased’s death, her relationship with the applicant had once again ended. The deceased travelled with her three youngest children to stay with friends for the week. Despite the cessation of their relationship, the deceased and the applicant kept in contact during that time.

11. On the afternoon of 29 September 2017, the applicant finished work and attended a hotel at Parramatta where he consumed alcohol. While he was there, he spoke to the deceased who was returning home from the Central Coast. The deceased had become lost, a matter about which she and the applicant commenced arguing. She nevertheless made arrangements to collect the applicant from Mount Druitt Railway Station. After doing so, the deceased and the applicant went to a bottle shop and purchased alcohol, before going to the deceased’s home where they commenced drinking.

12. At 8:42pm, the deceased called a taxi which arrived at her home at 8:50pm. She and the applicant then travelled to “Uncle Bucks Tavern” in Mount Druitt, arriving at about 8:55pm. CCTV footage, taken from inside the taxi on the way to the tavern, showed that the applicant and the deceased were apparently in good spirits. Observations made by staff at the tavern were to a generally similar effect. Both were in the poker machine area at times, and during the period in which he was at the tavern, the applicant withdrew a total of $500 from a nearby ATM. The applicant was obviously consuming alcohol.

13. The applicant left the tavern by himself at about 11:06pm. He arrived at the deceased’s home at some time before midnight. The deceased remained at the tavern until about 11:51pm when she departed in a taxi. There was telephone contact between the applicant and the deceased while the deceased was at the tavern on her own, as well as during her journey home.

14. There were nine calls in total, some of which were answered and some of which were not. They covered the period 11:44pm to 11:54pm. At 11:56pm, the applicant sent his father the following text message:

“I’ll be home in an hour up not Sarah lol honestly”.

15. The deceased arrived home at approximately midnight. At 12:33am, the applicant called triple 0. The call lasted 93 seconds but was not connected to a despatcher.

16. At 1:36am the applicant called his father and a 54 second connection occurred. The applicant called his father again at 1:39am and a 17 second connection occurred. The applicant’s father said that during these calls, the applicant sounded upset. At one point, the following exchange took place between the applicant and his father:

“Applicant: Dad I need you to come over here. Something has happened with Sarah.

Father: What is going on?

Applicant: Just come over here.”

17. The applicant’s father arrived at the deceased’s home at about 1:55am. When the applicant opened the door, his father looked into the house and saw the deceased lying on the kitchen floor. He walked inside and saw that deceased’s face and lips were pale and blue. He also saw a wound on the deceased’s ribs, which he described as being “about an inch and a half long”, around which was dried blood. The applicant retrieved a nearby tea towel and placed it on that wound before lying down next to the deceased crying and saying:

“Don't leave me, don’t do this to me … I love you."

18. When asked by his father whether he had called anyone, the applicant replied:

“No, I haven’t”.

19. The applicant’s father then called triple 0. When he returned to the house, he saw a large silver knife in the corner of the kitchen. He left the house and remained out the front until police arrived. During this time, he could hear the applicant crying loudly.

20. Police arrived at the deceased’s premises at about 2:08am. As they approached the front door, they could hear a person inside yelling. Upon entering the house, they saw the applicant lying on the floor curled up next to the deceased, resting his head on her shoulder and holding the tea towel against her stomach. They noticed that the deceased was very pale and had a wound on the left side of her stomach which was visible when the applicant removed the tea towel. Police also saw a large kitchen knife about a metre away from the deceased’s feet. A trail of smeared blood extended from near the knife to the lower half of the deceased’s body.

21. At this point, the applicant cried and said:

“Please don't be dead baby, you can't be dead, please don't be dead, is she dead? Is she dead? I watched my best friend die. I tried to get my phone to call somebody but I'd lean over to try and get it and then I'd take pressure off and it'd start bleeding and then my phone died and I couldn't reach it and I know I had to keep pressure on it and I just kept trying to reach it and it'd start bleeding again.”

22. Police then moved the applicant away from the deceased, at which time he said:

“I was there for 4 hours with her watching her die, I tried calling yous but my phone kept dying and then I'd try and get the phone and then I took pressure off and blood would keep coming out and then I'd go back to that I was f---ing breathing in her mouth and then I just stayed there, I stayed there until she was cold and when she was cold I knew I had to call my dad, so I called my dad to call you.”

23. Police removed the applicant from the house and onto the front lawn. Ambulance officers arrived at about 2:11am and commenced CPR. They continued to try to revive the deceased over a period of more than 25 minutes. The deceased was pronounced dead at 2:37am on 30 September 2017.

24. Once out on the front lawn, police had a conversation with the applicant. It would be fair to say that the transcript of the conversation reflects what could only be described as a high level of disordered thought on the part of the applicant, consistent with his having consumed a large quantity of alcohol.

25. A further conversation took place concerning the applicant’s drinking earlier that evening:

“Police: How much have you had to drink tonight?

Applicant: A fair bit.

Police: Right. Do you remember what you were drinking?

Applicant: New. Extra Dry.

Police: Mmm. All at Uncle Buck’s?

Applicant: A couple of bourbons. Uncle Buck’s, I started drinking after work.

…

Police: So what time did you leave work?

Applicant: 3.30.

…”

26. As police drove away from the deceased’s premises, the applicant began to scream and yell, repeatedly banging his head and fists against the inside of the caged police vehicle. When the vehicle arrived at the police station, the applicant was taken into the custody area where he continued to yell, scream, throw his hands around and bang his head on the walls. After being introduced to the custody manager, the applicant was placed in a cell and could be heard yelling at police. Approximately 45 minutes later, the applicant yelled out:

“Here do you want this?”.

27. The applicant then gave police some money and a quantity of cannabis. He continued to violently thrash around in the dock at the police station, repeatedly hitting his head on the perspex wall. The applicant was extremely emotional, his behaviour ranging from displaying violence and aggression, to crying uncontrollably, to pacing within the dock and jogging on the spot. This behaviour continued for some time. At about 3:45am, the applicant said:

“She's gone, she's gone. I don't care. I'll plead guilty, I don't care she ain't coming back. Please take the cuffs off now, I gotta start training now, no, now. I'm dead, she knows so many bikies, when they find out, I'm dead and I'm not dying for nothing, not dying for no reason. … I don't give a f--k about my rights, I'm going to goal for a long time I need to start training because I'm dead.”

28. At about 5:17am, the applicant stood up and placed both hands on his head and said:

“I remember, I remember. … I remember now, I choked her out, I killed her.”

29. At 5:38am, the applicant said:

“I'm going to have a bit of a lay down to rest to see if I can remember any more. I remember choking her out, but I don't remember stabbing her. I need to rest to see if I can remember more. I remember the knife there, but I don't remember stabbing her. I remember choking her but I can't remember why. I can't remember why I done it or what it was about I need to rest, I'm tired, but I don't think I deserve to sleep.”

30. Commencing at around 5:45am, the applicant participated in an electronically recorded interview with police. His Honour noted that there were certain aspects of that interview which assumed some importance in the sentence proceedings.

31. The applicant was questioned about his consumption of alcohol:

“Q62    OK. And you've drunk alcohol in the past?

A Yeah. I've got -   

Q63    So you understand -

A    - bad drinking problem.

Q64    - these are events between you're -

A    Yes.

Q65    - intoxicated and when you're not?

A Yep.”

32. When asked by police what he could tell them about the events earlier that morning, the applicant said::

“Um, I remember us going out to the pub, where we drank, played the pokies and that. I remember I spent a bit more money than what I - wanted to and I got angry and I told her I was leaving. Got in a cab, I waited for her at her place. I remember her coming home. We got into an argument. What I remember about the argument is that she told me to get the f--k out of the house, this and that. I said I was going to bed. I went into the bedroom. She come into the bedroom. She, um, pulled me out of the bed and she started pushing me down the hallway and that, told me to get out. Said I wasn't gettin' out. I hopped into the, um, kitchen and I remember, um, when I hopped into the kitchen, she pulled out the knife and she, like, didn't go to attack me but sort of, like, went to get me with it, threatened me to get out. I then, um, spun her around, grabbed her in a choker hold where I think I choked her out until she passed out. I want to say that I stabbed her but I don't remember stabbin' her, but I do that when I drink, I black out shit. I think it’s like a personal defence. But I'm gunna say, go ahead and say that I did it. ‘Cause I remember chokin' her out, so I'm gunna say that I did it. And I don't know why. I don't know why the ..... I don't know what we were fightin' over, I don't, I remember, like, yeah, I know, like, we were, the gamblin' and that, but I don't know why I did what I did ..... I don't know why I did what I did. And I'm not just saying that I don't care, I'll rot in gaol for the rest of my life. I don't care. And tell the Judge that, too. I want my maximum. I don't care. How do you murder the love of your life? I’m not, I’ll never be able to speak to her or see her ever again. I don't ever want to get out of gaol. I don't ever want to get out of gaol. You know f--k if there was a firing squad in this country, I'd say, Shoot me now. Solve f--kin' problems, man. I don't know how to live with what I done. I didn't even think, like, I just did a domestic violence course and f--kin' they talked about this shit, you know. They said it happens in the bathroom or whatever.... 'cause that's the only place with a lock on the door. I didn't think I'd be this statistic, you know. Always thought I was better than, but obviously not. Just a piece of shit. Just … that's all I got to say.”

33. The applicant was then asked how intoxicated he thought he was at the time, to which he responded:

“I was pretty drunk, yeah. I’m a bad drunk too”.

34. According to the applicant’s account of events, he had walked into the bedroom of the premises where the deceased grabbed a knife from a kitchen drawer and threatened to stab him. He agreed that he was not permitted to be at the deceased’s premises and was then asked:

“Q316 Why is that?

A    There was an AVO.

Q317 And what are the conditions for that?

A   Police put it on saying that I'm not allowed to go round there 'cause he had allegations that I smashed windows, which I never smashed.

Q318 So the AVO is so - - -

A    I was found not guilty, but the AVO was placed on because I told the Judge at the time, we weren't together so I didn't care that the AVO was there.”

35. The applicant was asked about his reaction to alcohol:

“A … but like I said when I drink I think it’s like a defence mechanism for meself I do black out the bad shit that I do.

Q413   Has that happened before?

A   Sort of away so like yeah, like plenty of times I’ve got yeah problems and that.

Q414   Can you give me an example?

A   I don’t know any, any time something bad happens to me I black out. I just don’t remember it’s happened. I don’t know I’ve broken my hand and I’ve punched shit I don’t remember.

Q415 Mmm.

A    I've woken up, broken hands -

Q416 Mmm.

A    - splits across my head, 'cause I've f--kin' bottled meself, or -

Q417 Mmm.

A    - I head butt concrete, shit like that.

Q418 Uh-huh.

A    Just a weirdo … But I never remember doing it, you know.

Q419 Why do you do those things?

A    I don't know, I'm just ..crazy.

Q420 Is it anger or, uh, you're upset or —

A     It's not anger because when I'm sober I'm fine. Happy as when I'm

sober. It's just the drunk -

Q421 Yeah, that's what I'm talking about, when you're drinking, is that - - -

A    It's just the - - -

Q422 - an issue for you?

A    - yeah, I'm going through a ..... program right now.

Q423 Yeah.

A I haven't had a drink in a while.

Q424 Mmm.

A    I wasn't supposed to drink, you know, like, we'd told each other we

weren't going to drink anymore. And it's just unfortunately, it's like, the first time we've drank together and …

Q425 Yep.

A    - and, like, we were going through court and that, to get the AVO

lifted, so we could actually start doing things legally.

Q426 Yep.

A    Like I said to youse before, no AVO was ever going to keep me away

from her, like …”

36. The cause of the deceased’s death was a stab wound to the left anterior abdominal wall. The wound track proceeded medially, backwards and downwards, it perforated the skin and subcutaneous tissue of the left anterior abdominal wall, incised loops of the small bowel and transected the abdominal aorta and inferior vena cava immediately before its bifurcation. There were resultant retroperitoneal haemorrhages (accumulation of blood found in the retroperitoneal space), pneumoperitoneum (abnormal presence of air or other gas in the peritoneal cavity), haemoperitoneum (1000 ml) (presence of blood in the peritoneal cavity) and features of hypovolemic shock secondary to blood loss (pale organs and subendocardial haemorrhages in the head).

37. There was a further stab wound to the deceased’s left anterior chest wall. The wound track proceeded medially, backwards and downwards. It perforated the skin and subcutaneous tissue of the left anterior chest wall and fractured the third left rib.

38. There was also a focal haemorrhage over the pericardium and injuries to right hand, including:

1. superficial sharp trauma to the fingers of the right hand;

2. a 6mm superficial incision to the dorsum of the right thumb;

3. an 11mm superficial incision to the dorsum of the right index finger; and

4. a 3mm puncture wound to the palmar surface at the base of the right little finger.

39. There were signs of neck compression in the form of abrasions and bruising to both sides of the neck and to the rami of the mandible. In addition, there were facial, oral and conjunctival petechial haemorrhages. There was focal bruising to the platysma muscle and submandibular gland on the right. There were no cervical spine injuries. There were no fractures of the hyoid bone, cricoid cartilage or thyroid cartilage.

40. On the right side of the neck, there was a wound that consisted of a linear bruise that lay over the sternocleidomastoid muscle, and a horizontal abrasion that extended to the anterior midline and then dipped inferiorly. The total area involved was 80 x 70mm. The linear bruise was approximately 60 x 10mm. The horizontal abrasion in its entirety was 50 x 20mm. The inferior component was 10mm wide and extended 30mm inferiorly. There were petechial bruises over the thyroid cartilage in the midline.

41. On the left side of the neck, there was a broad band of abrasion and bruising that had a semi-circular configuration. The total surface area involved was 50 x 60mm. The superior bruise was 40 x 30mm and the inferior abrasion was 50 x 10mm.

42. There was bruising 5 - 10mm over the proximal end of the left clavicle and over the sternal notch, along with numerous other bruises and lacerations to the face, both arms, thighs, shins and feet. These included:

1. a 30 x 10mm bruise to the left forehead;

2. a 5mm bruise to the right earlobe;

3. a 20 x 35mm bruise to the nasal bridge with associated petechial haemorrhages;

4. a 20mm bruise to the left nostril;

5. a bruise to the left lower lip;

6. a 6 x 10mm bruise to the right chin;

7. a linear 20mm bruise to the under-surface of the chin in the midline;   

8. a 20 x 10mm bruise to the upper eyelid on the left;

9. a 5mm bruise below the left eye;

10. a 30 x 20mm bruise to the rami of the mandible on the right;

11. a 30mm bruise to the rami of the mandible on the left;

12. a 20 x 15mm bruise immediately inferior to the angle of the jaw on the left;

13. subcutaneous haemorrhages to the chin and over the rami of the mandible on the right and left side;

14. a 30 x 20mm bruise to the right forearm;

15. 10 x 20mm bruising to the flexor surface of the left forearm;

16. a 10mm bruise to the dorsum of the left forearm;

17. a 40 x 60mm area of bruising over the left elbow;

18. a 60mm linear bruise to left triceps area;

19. subcutaneous haemorrhages corresponding to external bruises;

20. a 60 x 30mm bruise to the right thigh;

21. a 15mm bruise to the proximal part of right shin;

22. a 20mm bruise to the distal part of right shin;

23. a 90 x 30mm bruise, a 15mm abrasion, and an accompanying bruise, to the right foot;

24. a 10mm linear abrasion to the medial surface of the right shin;

25. a 100 x 50mm area of bruising to the left ankle and foot;

26. three 20-30mm bruises to the left shin;

27. a 30mm bruise to the left shin;

28. a 50 x 30mm bruise to the left hip;

29. a 10mm laceration to the medial surface of the left thigh;

30. a 15mm bruise to the medial surface of the left thigh;

31. a 17mm superficial incision of the right big toe;

32. a 9mm superficial incision over the right medial malleolus; and

33. subcutaneous haemorrhages corresponding to external bruising.

Sentence proceedings

43. The sentencing judge noted that there were three matters of aggravation, which were not disputed by the parties:

1. the use of a weapon;

2. the offending occurred in the deceased’s home when there was an order in place prohibiting the offender from going within 250 metres of that location;

3. the applicant was on conditional liberty at the time which further aggravated the offending.

44. His Honour considered three further matters of aggravation, two of which were in issue and one of which was not. The factor which was not disputed was that the applicant’s record of previous convictions was an aggravating factor of considerable significance. There were four sets of previous convictions, three of which involved episodes of violence and one of which involved threats of violence. The first set occurred in 2010 where the victim of the offending was the applicant’s mother. The offences were:

1. stalk or intimidate with intent to cause fear of physical or mental harm;

2. resist an officer in the execution of duty; and

3. assault.

45. The applicant was convicted of each offence and was released in respect of each on a bond under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) with conditions. One of those conditions was that he accept supervision and counselling in relation to drug and alcohol rehabilitation.

46. The next set of offences occurred in 2011. Once again, the victim was the applicant’s mother. He was convicted of the following offences:

1. destroying or damaging property;

2. assault; and

3. contravening a prohibition order or restriction in an apprehended violence order.

47. The assault involved him slapping his mother about the head on a number of occasions.

48. The following sentences were imposed as a result of that offending:

1. for the charge of destroying or damaging property, an intensive corrections order for a period of 9 months;

2. for the charge of assault, an intensive corrections order for a period of 6 months; and

3. for the charge of breaching an apprehended violence order, an intensive corrections order for a period of 15 months.

As with the earlier offending, these offences also involved the excessive consumption of alcohol.

49. The next episode of offending occurred in 2017. On 16 February 2017 an interim apprehended violence order was made for the protection of the deceased. This prohibited the applicant from:

1. assaulting or threatening the deceased;

2. stalking, harassing or intimidating her;

3. intentionally or recklessly destroying or damaging any property which belonged to her, or which was in her possession;

4. approaching her or contacting her in any way, other than through a lawyer; and

5. going within 250m of any place where she lived or worked.

50. In the early hours of 26 March 2017, police were called to the deceased’s premises where they found the applicant and the deceased shouting at one another in the middle of the street. The applicant was heavily intoxicated at the time.

51. On 17 May 2017, the applicant appeared at the Mt Druitt Local Court and was fined $800 and placed on a bond pursuant to s 9 of the Sentencing Act for a period of 18 months. The bond was accompanied by a condition that he obey all reasonable directions of the NSW Probation Service in respect of counselling, educational development and drug and alcohol rehabilitation. The previous apprehended violence order was made final.

52. On 17 May 2017, the applicant appeared in the Mt Druitt Local Court in respect of a charge of using a telecommunications service to harass a person, contrary to s 474.17(1) of the Criminal Code 1995 (Cth). That offence arose out of a series of text messages in which the applicant had threatened to jump on the deceased’s head, break her jaw if she ever came near him, and punch her head in. On that occasion, the applicant was released on a recognisance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). This included a condition that he accept supervision for as long as was considered necessary by the Community Corrections Service, and obey all reasonable directions of that Service in respect of counselling, educational development and drug and alcohol rehabilitation.

53. His Honour set out his conclusions in relation to the past offending as follows:

“66   The offender’s criminal history is extensive. It reflects generally violent offending, and breaches of apprehended violence orders. Given the nature of the offending to which the offender has pleaded guilty, that history is of obvious significance. However, there is one aspect of the offender’s record which warrants particular emphasis.

67   At the time of the present offending, the offender was subject to an order of a Court which prevented him, not only from assaulting the deceased, but from going within 250m of where she lived. The breach of that order is the subject of the Form 1 offence. It occurred on the night of the deceased’s murder. Compliance with any order of a Court is not optional. The offender told police that he did “not give a f--- about the AVO” and that “no AVO was going to keep him away” from the deceased. Any further observation about his cavalier disregard for, and his complete defiance of, that apprehended violence order, would be superfluous. Apprehended violence orders are put in place for good reason, namely to protect those who are considered to be in need of protection. Any breach of them is a serious matter. The circumstances of the present case should serve as a warning of the disastrous consequences which can eventuate from the actions of those who act in flagrant disregard of such orders.”

54. One of the matters of aggravation which was in issue was whether the murder of the deceased was associated with gratuitous cruelty. His Honour’s treatment of that issue was as follows:

“68   The Crown submitted that the offending was further aggravated by the fact that it involved gratuitous cruelty. In this regard, the Crown pointed, in particular to the extensive injuries which were inflicted upon the deceased over and above the wounds left by the stabbing which caused her death. Counsel for the offender submitted that I could not be satisfied beyond reasonable doubt that those injuries, or at least the entirety of them, had been caused by the offender. He submitted, in particular, that there was no evidence of the age of any of the bruising which was found on post mortem examination.

69 In the context in which it is used in the Sentencing Act, the term “gratuitous cruelty” connotes intentional violence which is committed simply to make a victim suffer. The nature and extent of the injuries found during the post mortem examination conducted in the present case are, in my view, entirely inconsistent with the deceased having sustained them (as was submitted on the offender’s behalf) as a result of nothing more than the exigencies of life. Moreover, on the offender’s own admission to the police, he applied pressure to the deceased’s neck in what was obviously a choking-type action. In my view, these matters establish gratuitous cruelty which further aggravates the offending.”

55. The other matter of aggravation which was in issue was how the Court should assess the applicant’s state of intoxication. The Crown submitted that the applicant was intoxicated at the time of the offending and that such intoxication amounted to a further aggravating factor. To make out that submission, the Crown relied upon the following:

1. the fact that the applicant’s ingestion of alcohol was voluntary and had commenced some hours before he met the deceased on the afternoon of 29 September;

2. the applicant’s criminal history, which included instances of domestic violence type offending committed when the applicant was obviously intoxicated;

3. the applicant’s history to Ms Duffy, a psychologist who had prepared a report on the applicant’s behalf; and

4. the applicant’s statements to police.

56. Counsel for the applicant accepted that the applicant was intoxicated to a significant degree at the time of the offending and also accepted that, if it was established that there was recklessness connected to the ingestion of alcohol which caused the intoxication, then this could aggravate the offending. His Honour noted that counsel for the applicant did not take issue with the fact that the applicant had previously displayed what might be described as “alcoholic tendencies”, nor did he dispute that the applicant’s intoxicated state had contributed to his conduct on this occasion.

57. While counsel for the applicant did not submit that the applicant’s intoxication was a mitigating factor, he did submit that on the whole of the evidence the sentencing judge could not be satisfied that the conduct which resulted in the applicant becoming intoxicated before his offending was reckless. He submitted that in the circumstances of this case, the applicant’s intoxication was a neutral factor.

58. His Honour set out his finding in relation to this matter as follows:

“76   The evidence in the present case does not support a conclusion that the offender consumed alcohol in the hours leading up to the offending for the specific purpose of becoming aggressive. However, it is clear that the offender was intoxicated and I am satisfied that this should be treated as an aggravating factor. I have reached this conclusion for a number of reasons.

77   Firstly, the offender’s criminal history includes a litany of violent offending. Two instances of that offending were obviously, and specifically, alcohol related.

78   Secondly, a number of the offender’s statements to police are particularly telling. He told police he had a “bad drinking problem”, that he was “pretty drunk” and that he was a “bad drunk”. He told them that when he was drunk, he did “bad shit”, he “punched shit”, and that he head butted concrete. He told them that there were occasions on which he had woken up with broken hands after consuming excessive alcohol. He described himself as a “weirdo” and said that he became “crazy” when he drank. Even more significantly, when asked about his relationship with the deceased, the offender told police that “sober, we’re good” but that alcohol was “an issue”. Clearly, the offender appreciated the connection between drinking to the point of intoxication, and violent behaviour.”

59. His Honour also took into account the report of Ms Duffy where she said:

“He described a history of acting out behaviour, often self-harming, especially when affected by drugs and/or alcohol. He related numerous incidents where he punched trees, walls, and knocked himself out by hitting his head against walls, throughout his life. He reported psychotic symptoms after using ‘ice’ and linked his behaviour to the effects of the drug.

…

Mr Wood said he consumed alcohol from the age of 12 or 13. He ‘drank to get drunk’ and by the age of 14-15 he and his mates were drinking home brew and other alcoholic concoctions at the local park on weekends. He had memory blackouts and often got into fights when drunk. He often drank three long necks after work and at the age of 19 he decided to stop drinking and abstained for six months. He was then ‘clean’ for about two years around the age of 21 when he was given an ICO for a charge of contravene AVO. He engaged in exercise and martial arts and avoided drinking mates. He began drinking again when he became involved with Sarah who also consumed alcohol. … On 29 September he drank heavily in the afternoon and into the evening such that he has been unable to recall all the details leading up to and after the death of his partner.”

60. His Honour set out his conclusion on that issue as follows:

“81   In my view, bearing in mind the whole of this evidence, it is inconceivable that the offender was unaware of the link between his alcohol consumption and his violent behaviour. I am satisfied that his decision to become as intoxicated as he was on the night of the offending was clearly reckless, and that this further aggravates the offending.”

61. His Honour considered the competing submissions of the Crown and the applicant on the issue of the “seriousness of the offending”. It was the Crown position that the offending was in the mid to upper range of seriousness whereas it was put on behalf of the applicant that the offending was in the mid-range. His Honour set out his conclusions as follows:

“Consideration

87   The evidence in the present case overwhelmingly establishes that the deceased, a woman who was 1.59m tall and who weighed just 49kgs, met an untimely, brutal and violent death at the hands of the offender. She was stabbed to death, one of the blows being of sufficient force to fracture one of her ribs. The force of that blow, and the extent of the injuries generally, satisfy me that the offender acted with an intention to kill the deceased. There is some vague suggestion in the evidence that the offender may have been angry due to losing money gambling on poker machines earlier in the evening. However, the evidence does not permit me to reach any finding as to what motivated him to act as he did. Similarly, the evidence does not enable me to reach a finding as to the sequence in which the various injuries were inflicted on the deceased.

88   I am similarly unable to determine whether, as the offender asserts, the deceased originally came at him with the knife in the kitchen of the premises. Even if that were the case, it would not detract in any way from the seriousness of an attack which reflects a complete lack of respect for the life of another human being. The offending was aggravated by a multiplicity of factors to which I have referred.

89   Although there is no specific category of “domestic murder” or “relationship murder”, there is no escaping the fact that the deceased was murdered in an atmosphere of serious domestic violence. It follows that the gravity of the offending must be assessed in the context of the relationship which existed between the offender and the deceased. Domestic violence of any kind is, quite simply, unacceptable. It is a scourge on the community, and antithetical to what any right thinking member of the community regards as appropriate. In the present case, the level of violence exhibited by the offender escalated to the point where it was out of control. The consequences were disastrous. The fact that a relationship may be unstable, or the fact that a relationship entirely breaks down, can never justify vengeful violence being perpetrated by one party to the relationship upon the other.

90   The approach to be taken in sentencing for offending of this general nature was reiterated by the High Court in Munda v State of Western Australia in the following terms:

“A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.”

…

92   Such observations have a particular resonance in the circumstances of the present case. This was a serious case of murder. In my view, it falls above the mid-range of objective seriousness. Any sentence must reflect the need to protect the community. It is, regrettably, too late to protect the deceased. However, it is not too late to impose a sentence which will act as a deterrent to others who might be minded to act as the offender did. It is in that way that the Court’s obligation, of which Johnson J spoke, can be met. Moreover, and in light of this offender’s history of offending, any sentence must carry with it an equally strong measure of personal deterrence.”

62. His Honour then set out his conclusions in relation to the applicant’s subjective case.

63. In doing so, his Honour had occasion to consider the applicant’s background.

“95   The offender is now 27 years of age. He has two siblings. His parents, both of whom were at one stage addicted to heroin, separated when he was young. In addition, his father suffered from alcoholism for a period. As a consequence of a combination of these matters, the offender’s domestic upbringing was a violent one.

96   At the age of 14, the offender was expelled from school in Year 9 due to behavioural and truanting issues. Because of those issues, and her inability to cope with them, the offender’s mother sent him to live with his father. This resulted in the offender’s behaviour becoming worse, and he was eventually sent back to live with his mother.

97   Having worked as a cashier in a retail store for about 6 months, the offender attended TAFE where he commenced a course in spray painting. He secured an apprenticeship, which he completed. It is apparent that the offender’s work history has been punctuated by terminations of employment due to his drinking. However, on those occasions he appears to have obtained alternative positions reasonably quickly, to the point where he appears to have had no real lengthy periods of unemployment. Unsurprisingly, the offender regards himself as an alcoholic. I have previously recounted the history that he provided to Ms Duffy.

98   I have taken all of the factors bearing upon the offender’s background into account in determining an appropriate sentence.

99   Despite the fact that the contents of the offender’s affidavit were untested, the Crown was prepared to accept that the expressions of remorse which were contained within it were genuine. Ms Duffy also noted that the offender had expressed “considerable” remorse to her. Those statements are generally consistent with some of the statements made to police by the offender shortly after he was taken into custody. I am satisfied that he is genuinely remorseful.

…

101   Assessing the offender’s prospects of rehabilitationis problematic, for the simple reason that his successful rehabilitation depends largely upon him being able to firstly, abstain from alcohol and secondly, to control his anger. In these circumstances, and in light of his history, the Crown submitted that I should conclude that the offender’s prospects of rehabilitation were, at best, guarded. Counsel for the offender did not submit to the contrary. In my view, that is the most favourable finding that can be made on the entirety of the evidence.”

THE APPEAL

64. Before dealing with the particular issues raised by the grounds of appeal, there is an underlying proposition behind most of them. The proposition is that all of the aggravating features identified by his Honour between [52] and [92] of the Reasons go to the objective seriousness of the offending. The applicant submits that this is made clear by par [88] where his Honour said:

“88   … The offending was aggravated by a multiplicity of factors to which I have referred.” (See also par [61] hereof)

65. That provides the basis for the applicant’s submission that factors such as the applicant being on conditional liberty at the time of the offending and his past criminal record were wrongly taken into account as part of the objective seriousness of the offending rather than features personal to him.

66. In my opinion, that approach misunderstands the structure of the Reasons. In order to understand that structure, it is necessary to have regard to the way in which the submissions at first instance were made to his Honour. What was identified were matters which the Crown submitted were “matters of aggravation” and should be taken into account as adverse to the applicant. His Honour dealt with those matters individually and where there was a contest, he set out the competing arguments and his conclusion.

67. Looked at in that way, those particular matters of aggravation should not be considered under the rubric of “matters going to the objective seriousness of the offending” but simply as individual factors which had been put forward by the Crown as matters of aggravation adverse to the applicant. Neither the parties nor his Honour analysed the precise nature of the aggravation since the parties were agreed that if the factors were made out they were adverse to the applicant.

68. The applicant has placed considerable weight on par [88] of his Honour’s reasons. He submitted that the final sentence (see [64] hereof), when used in a context where the subject matter was the “objective seriousness” of an attack, referred to all of the aggravating factors which his Honour had identified, not just those which were relevant to the seriousness of the offending.

69. There is an obvious ambiguity in par [88] in that it can be interpreted in either way. If one accepts, however, that what his Honour was doing at that place in the Reasons was looking at individual matters of aggravation on their own and not dealing with them as if they all came under the classification of “the seriousness of the offending”, the alternative interpretation, which refers to only those factors which were relevant to the seriousness of the offending is available and should be preferred.

70. This is particularly so when regard is had to the written submissions of the Crown on sentence which specifically referred to Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] and were expressed in the following terms:

“Muldrock confirmed that the sentencing court will still be required to make an assessment of where the offence falls within the range of objective seriousness for offences of its kind as part of the sentencing task. In regards to this task, the court confirmed at [27] that:

“… the objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.””

71. Once the underlying structure of his Honour’s Reasons is properly understood, then his particular findings of aggravation can be properly assessed without adopting an overly technical or rigid approach as appears to have been done by the applicant.

72. It is then convenient to deal with the first two grounds of appeal together, which raise similar considerations.

Ground 1 – The learned sentencing judge erred in having regard to the applicant’s record of previous convictions as a matter that aggravated the offence.

Ground 2 – The learned sentencing judge erred in taking into account the fact that the applicant was on conditional liberty as a factor that aggravated the offence

73. The issue raised by Ground 1 is that his Honour erred by taking into account the applicant’s criminal record as a matter which made the particular offending, i.e. the murder of the deceased, more serious. The applicant relied upon the analysis in R v McNaughton (2006) NSWLR 566; [2006] NSWCCA 242 to support that proposition. There Spigelman CJ (with whom McClellan CJ at CL, Grove, Bell and Barr JJ agreed) identified and discussed the ambiguity of the words “relative seriousness of the offence” and “aggravating factors” as used in s 21A of the Sentencing Act. That case was specifically concerned with whether or not prior offending was an objective circumstances and can therefore be used to assess the objective seriousness of an offence.

74. To assist in resolving that issue, Spigelman CJ relied upon the joint reasons in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at [14]:

“14   … the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.”

75. Spigelman CJ further clarified the issue by reference to a quotation from Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 at [14] :

“14   … We have already referred to his Honour's observation that “the literally appalling record” of the applicant increased the seriousness of the offence. If this means no more than that such a record would make it difficult to view the circumstances of the offence or of the offender with any degree of leniency then, of course, such a remark would be understandable and unobjectionable. It would clearly be wrong if, because of the record, his Honour was intending to increase the sentence beyond what he considered to be an appropriate sentence for the instant offence.”

76. Spigelman CJ provided further clarification by reference to the joint judgment in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [32]:

“32   … A person who has been convicted of, or admits to, the commission of other offences will, all other things being equal, ordinarily receive a heavier sentence than a person who has previously led a blameless life. Imposing a sentence heavier than otherwise would have been passed is not to sentence the first person again for offences of which he or she was earlier convicted or to sentence that offender for the offences admitted but not charged. It is to do no more than give effect to the well-established principle (in this case established by statute) that the character and antecedents of the offender are, to the extent that they are relevant and known to the sentencing court, to be taken into account in fixing the sentence to be passed. Taking all aspects, both positive and negative, of an offender's known character and antecedents into account in sentencing for an offence is not to punish the offender again for those earlier matters; it is to take proper account of matters which are relevant to fixing the sentence under consideration.”

77. These statements of principle highlighted the difficulties created by the ambiguity in the terminology used in s 21A of the Sentencing Act. This was made clear by Spigelman CJ in R v McNaughton as follows:

“31 There is a reference to “relative seriousness of the offence” in s 21A(1)(c), but it should not be assumed that the word “seriousness” there appearing is a reference to the objective gravity of the offence in the sense that the word has been used in the authorities. Nor, in my opinion, should it be assumed that the words “aggravating factors” in the section should be interpreted as if they were a reference to “objective considerations” only, as those words have been used.

32 Section 21A(1)(c) refers expressly to “any other objective or subjective factor”, clearly indicating that the lists of aggravating and mitigating factors in s 21A(2) and (3) encompass both kinds of considerations. Some of the matters listed in s 21A(2) appear to me to encompass matters which, in the terminology that has come to be adopted in the case law are, at least in part, “subjective” rather than “objective”, e.g. motive in (h) and offending whilst on conditional liberty in (j). I can see no reason why the reference to prior convictions should not be interpreted as referring to the use of that consideration in the ways authorised expressly in Veen No 2.

33    If Veen No 2 is understood to establish a principle to the effect that prior convictions can never be classified as an “aggravating factor” then, because the principle of proportionality applies to all sentences, s 21A(4) would have the effect of depriving s 21A(2)(d) of any effect. Section 21A(4) should not be interpreted in that way.

34 This consideration reinforces my conclusion that the aggravating factors set out in s 21A(2) are intended to encompass both subjective and objective considerations, as that distinction has been developed at common law.”

78. It is against that background that the applicant submitted that it is clear that it is incumbent upon a sentencing court to explain the manner in which an offender’s criminal record has been taken into account, noting that a passing reference to s 21A(2)(d) is unsatisfactory. To substantiate that proposition, the applicant relied upon the decision of Johnson J (Giles JA and Hoeben J agreeing) in Regina v Walker [2005] NSWCCA 109 at [32]:

“32 It should be observed, however, that a passing reference to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, without reference to the precise manner in which the sentencing judge takes that factor into account on sentence, is unsatisfactory. A failure to explain the manner in which the factor is taken into account does not enlighten the sentencing process, in a manner which s 21A appears to have been designed to achieve. Nor does it inform the offender, the Crown and the community of the use which the sentencing judge has made of this factor. In a case where the offender’s criminal history is not capable of attracting the principles in Veen (No. 2), error may be demonstrated which affects the sentencing process. It is important that sentencing judges keep firmly in mind the limited purpose for which an offender’s criminal record may be taken into account, in a manner adverse to the offender, in the exercise of sentencing discretion.”

79. The applicant submitted that even if his Honour was using the applicant’s past criminal record, as required by Veen (No 2) v The Queen, he did not explain how that prior criminal record “aggravated the offending” and in failing to do so his Honour erred.

80. Section 21A(2)(d) provides:

“21A   Aggravating factors

…

(2)    Aggravating factors The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows –

…

(d)   the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences) …”

81. Section 21A(2) reflects the common law principle that while in many cases an offender’s past criminal history will simply disentitle the offender to leniency, in other cases the offender’s past criminal history will be such as to require that greater weight should be given to concepts such as deterrence and the protection of society (Veen v The Queen (No 2)). Accordingly, there can be no issue that the fact that an offender has a lengthy criminal history, particularly for serious personal violence offences, will be relevant to the exercise of the sentencing discretion.

82. While an offender’s previous criminal history is relevant as a subjective consideration in the determination for the appropriate sentence, it is not to be taken into account in an assessment of the objective seriousness of the offence: Smith v R [2011] NSWCCA 163 at [36]. As this Court (Simpson AJA, Fullerton and McCallum JJ) stated in Elhassan v R [2018] NSWCCA 118 at [14]:

“14   … The distinction is important because the principle of proportionality requires that a sentence should not exceed (or fall short of) what is proportionate to the gravity of the crime, having regard to the objective circumstances.”

83. In other words, prior convictions are not relevant to the assessment of the objective seriousness of the signature offence but are relevant to the determination of where a sentence should lie within the boundary set by the objective seriousness of that offence, particularly if the offender has manifested in his commission of the offence, a continuing attitude of disobedience of the law.

84. In this case, the sentencing judge held:

“The offender’s record of previous convictions is, in the circumstances, an aggravating factor of considerable significance. It was not disputed that such record aggravated the offending.” (Reasons [54])

85. In challenging this finding, the applicant does not appear to contend that it was not open to the sentencing judge to find that the applicant’s criminal record was a “aggravating factor” within the meaning of s 21A(2)(d) or that it was not open to the sentencing judge to find that the applicant’s criminal history was such as to attract the principles in Veen (No 2) v The Queen. Rather, the applicant’s contention is that the sentencing judge erred by taking into account his criminal history in determining the objective seriousness of the signature offence. Additionally, it was submitted that his Honour erred in not explaining how the applicant’s criminal record was being used.

86. Contrary to the applicant’s submissions, the sentencing judge did not take the applicant’s prior offending into account when determining the objective seriousness of the offence. Rather, his Reasons, properly construed, indicate that he took into account the applicant’s prior criminal history within the meaning of s 21A(2)(d) of the Sentencing Act and applied the principles in Veen v The Queen (No 2). This can be most clearly understood from his Honour’s focus on the domestic violence aspects of the prior offending.

85. There was no error in his Honour making a finding that the applicant’s prior criminal history was an “aggravating factor”. His Honour referred to s 21A(2)(d). He was doing no more than using the terminology in the section. His Honour’s finding that the applicant’s criminal record was an “aggravating factor” does not contravene the principles stated in R v McNaughton. It merely states the statutory test.

86. The sentencing judge’s reference to the absence of dispute that the applicant’s criminal record “aggravates the offending” should be understood in the light of the submissions of the parties at first instance. Significantly, neither the Crown nor the defence contended that the “objective seriousness” of the signature offence was aggravated.

87. As indicated, the Crown cited Muldrock v The Queen and submitted that the applicant’s record was an “aggravating factor” under s 21A(2)(d) “to be taken into account in determining the appropriate sentence for this offence” because “the offender comes before the Court with a background of intimidation and stalking conduct, domestic acts of violence and contraventions of Apprehended Violence Orders. This offending is all domestic related and his victims have been the deceased and his mother”. In his oral submissions on sentence, the applicant’s counsel agreed that he did not “take issue with any of the statutory aggravating factors relied on by the Crown” (T.17.20, 12.12.2018). Looked at in context, it is clear that both counsel understood the sentencing judge’s reference to the aggravation of the “offending” to be a reference to an increase in the sentence in accordance with s 21A as outlined in the Crown’s written submissions.

88. The structure of the Reasons indicates that his Honour did not impermissibly take into account the applicant’s criminal history when assessing the objective seriousness of the offence. The Reasons proceeded by way of an introduction, summary of the evidence and analysis of the facts of the offending. His Honour then referred to the statutory aggravating factors under s 21A(2). After summarising each of the statutory aggravating factors, his Honour considered the objective seriousness of the offence in an entirely separate section entitled “The seriousness of the offending” (Reasons [82]-[92]). In that section, his Honour concluded that the objective seriousness of the offending was “above mid-range”.

89. As already indicated, and contrary to the applicant’s submissions, his Honour’s reference at [88] to “the offending [being] aggravated by a multiplicity of factors to which I have referred” does not indicate that his Honour impermissibly used the applicant’s criminal history to increase the objective seriousness of the offence. This statement was made immediately after the observation that even if one accepted the applicant’s claim that the victim initially came at him with a knife in the kitchen, that “would not detract in any way from the seriousness of his attack on her which reflects a complete lack of respect for life of another human being”. That the “multiplicity of factors” referred to the domestic violence nature of the murder is also confirmed by the sentencing judge’s discussion of domestic violence principles in Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 (at [55]) and Cherry v R [2017] NSWCCA 150, which immediately followed this statement.

90. The ultimate finding does not indicate that his Honour impermissibly took into account the applicant's criminal history in assessing the objective seriousness of the offence. The sentencing judge assessed the objective seriousness of the offence as being “above the mid-range”. The applicant does not submit that this finding was not open. In all of the circumstances, namely that death was intended, the domestic violence nature of the offence, the fact that the offence was committed in the victim’s home and that a weapon was used, the only appropriate finding was that the objective seriousness of the offence was above mid-range.

91. This ground of appeal has not been made out.

Ground 2 – The learned sentencing judge erred in taking into account the fact that the applicant was on conditional liberty as a factor that aggravated the offence

94. Behind this ground is the proposition already discussed, i.e. that his Honour took this factor into account when assessing the objective seriousness of the offending. There was no issue that the applicant was on conditional liberty at the time of the offence. He was subject to a s 20(1)(b) Crimes Act 1914 (Cth) recognisance for 18 months, commencing 17 May 2017 and expiring 16 November 2018 and a s 9 Crimes (Sentencing Procedure) Act bond for 18 months, commencing 17 May 2017 and expiring 16 November 2018.

95. In Hilier v Director of Public Prosecutions (NSW) [2009] NSWCCA 312 at [30] Basten JA (Johnson J agreeing) held that the fact that an applicant was on conditional liberty was a factor to be taken into account when determining the appropriate punishment of an offender rather than the objective seriousness of the offence. To similar effect, this Court (Hoeben CJ at CL, Davies and Adamson JJ) held in TL v R [2017] NSWCCA 308 at [72]:

“… it is well recognised that the fact that an offender is on conditional liberty at the time of offending is not relevant to the assessment of the objective gravity of the offence”.

96. Relying upon those decisions, the applicant submitted that his Honour had erred in taking into account the fact that he was on conditional liberty as aggravating the objective seriousness of the offence.

97. Section 21A(2)(j) of the Sentencing Act provides:

“(2)   Aggravating factors

The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

…

(j)   The offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence …”

98. As with the applicant’s prior criminal history, the fact that the he was on conditional liberty at the time of the offence is relevant to the determination of the appropriate sentence, but is not to be taken into account in assessing the objective seriousness of the offence. As Simpson AJA held in Turnbull v R [2019] NSWCCA 97 at [17]:

“The Crown accepted (correctly) that, although the commission of an offence while at conditional liberty is, by s 21A(2)(j), an aggravating factor for sentencing purposes, it is not a circumstance that aggravates the objective criminality of the offence … While the distinction may seem, to some, to be a fine one, an essential part of the sentencing process is the assessment of the objective seriousness of an offence. Objective seriousness is not determined by an offender’s personal circumstances.”

(In Turnbull the Crown conceded that error had been established because the sentencing judge in that case held that the breach of parole elevated the “objective seriousness” of one of the offences from mid-range to the higher end of the mid-range (at [11], [15], [17] and [24]).

99. As indicated, the applicant was subject to two bonds at the time of the murder. In respect of these bonds, the sentencing judge observed:

“52   … the parties agreed that the fact that the offender was on conditional liberty at the time further aggravated the offending.”

100. As with the issue of prior convictions, the applicant does not contend that it was not open to the sentencing judge to take the breach of conditional liberty into account “as an aggravating factor”. Rather, the applicant’s contention is that the sentencing judge impermissibly took into account the breach of conditional liberty when determining the objective seriousness of the offence. Properly read, his Honour’s Reasons demonstrate that his Honour did not impermissibly inflate the boundary of a proportionate sentence by reference to the breach of conditional liberty. His Honour did not find that “objective seriousness” of the murder was aggravated by a breach of conditional liberty. Rather, his Honour referred to the breach of conditional liberty as something which “aggravated the offending” citing s 21A(2)(j) of the Sentencing Act.

101. As already indicated, his Honour’s findings should be understood in the context of the submissions at first instance. The defence written submissions accepted that the breach of conditional liberty was a “subjective aggravating feature”. Again, during the sentence hearing his Honour confirmed with the parties that there was no dispute that this “statutory aggravating factor” applied.

102. This ground of appeal has not been made out.

Ground 3 – The learned sentencing judge erred in failing to have regard to the lack of planning in assessing the objective seriousness of the offence

103. The applicant noted that under the heading “The offender’s subjective case” the sentencing judge said:

“93   … I also accept that the offending was not planned.”

104. The applicant submitted that at this stage in his reasons, his Honour had already assessed the objective seriousness of the offence. There had also been a concession by the Crown that “there was no evidence which established that the offending was premeditated”.

105. There was no issue that the absence of planning was a mitigating factor (as reflected in s 21A(3)(b) of the Sentencing Act). The applicant submitted, however, that its mitigating effect should have been taken into account when his Honour considered the objective gravity of the offending, not when considering the applicant’s subjective case.

106. It is clear from the terms in which the finding was expressed and its location in the structure of the Reasons that his Honour took it into account as a mitigating factor which favoured the applicant. It is also clear that he took it into account when assessing the applicant’s subjective case. Nevertheless, the Crown submitted that in the circumstances of this case the fact that the offence was not planned did not mitigate the objective seriousness of the offending. The Crown made this submission because of his Honour’s findings as to the applicant’s level of intoxication and because his intoxication was an aggravating factor. The Crown submitted that in those circumstances, it was not surprising that the offence was “unplanned”. The Crown submitted that the absence of planning in this case was immaterial to the seriousness of the offence because what brought about the offence was the realisation of the very risk of violent behaviour of which the applicant was well aware when he consumed large quantities of alcohol.

107. The distinction sought to be made by the Crown in response to this ground is not supported by the Crown’s written submissions on sentence. In those submissions, the unplanned nature of the offending was included in that part of the submissions which dealt with the applicant’s subjective case.

108. Quite clearly, the absence of planning is a consideration which goes to the objective seriousness of the offending and was wrongly taken into account by the sentencing judge when considering the applicant’s subjective case. It matters not that its mitigatory effect might have been reduced because of his excessive alcohol consumption. This does not overcome or cancel out the error in approach which the applicant has identified.

109. This ground of appeal has been made out.

Ground 4 – The learned sentencing judge erred by failing to take into account the applicant’s disadvantaged background as a factor relevant to his moral culpability

110. The applicant submitted that although the sentencing judge took into account his violent upbringing, he erred in not making it clear “how” his background was taken into account. The applicant submitted that no reference was made to the potential connection between his moral culpability and his significantly disadvantaged upbringing.

111. The applicant was implicitly critical of the fact that his Honour did not refer to the detail on this issue contained in Ms Duffy’s report. The applicant noted that the following matters had been identified by Ms Duffy in her report:

1. his parents separated when he was four or five;

2. both parents were drug users;

3. his mother went to prison when he was young and his parents separated soon after she was released;

4. on the rare occasions he would see his father thereafter, he would see his father bash his mother and he would be bashed also;

5. his mother would drink heavily and would talk to herself and occasionally get angry and smash things in the house;

6. at age 12, because his mother could not handle his behaviour, he moved in with his father. He would see his mother on weekends, but she was emotionally unwell;

7. by his teens he was able to fight his father if he tried to bash him;

8. he was the most suspended child in primary school;

9. he was expelled in year 7 or 8 from high school for fighting and truanting.

112. The applicant noted the following conclusions of Ms Duffy on this issue:

“… reported a dysfunctional and chaotic upbringing where he was exposed to family violence, physical and emotional abuse, parental drug and alcohol consumption and mental illness. Such adverse childhood experiences have been found to increase the likelihood of developing depression and substance dependence. A study of adverse childhood experiences indicated that factors of physical abuse, emotional abuse, household substance abuse, parental separation or divorce, criminal household member and mental illness in household were found to affect adult mental health, particularly depressive disorders and early illicit drug use … Displayed impulsivity and behavioural problems from primary school and engaged in fights and other oppositional behaviours. His engagement in assaults and substance use can be linked to his exposure to drugs and aggression during his childhood which normalise such activities.” (Report, 19 November 2018 at [12])

113. The applicant submitted that Ms Duffy’s report made it necessary for his Honour to consider his abuse of drugs and alcohol and his engagement in violent behaviour in the context of his experiences as a child, which included exposure to domestic violence and the abuse by both parents of alcohol and other drugs.

114. The applicant submitted that as was made clear in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 an upbringing of the kind experienced by him may leave a mark on a person throughout life and compromise the person’s capacity to mature and learn from experience. The applicant noted that the court in Bugmy spoke of giving “full weight to an offender’s deprived background in every sentencing decision”.

115. The applicant relied upon what was said by this Court in Ingrey v R [2016] NSWCCA 31 at [35] to the effect that it will be a matter of evaluation as to what impact Bugmy type considerations will have in the particular case given that (not unlike the situation with respect to mental illness) countervailing considerations “might reduce or eliminate its effect”. Or, as Simpson AJA put it in R v Irwin [2019] NSWCCA 133 at [3]:

“Application of the Bugmy principles is not discretionary. …”

116. The applicant submitted that in the present case his Honour failed to evaluate the impact of the applicant’s significant disadvantage upon his moral culpability and in failing to do so, erred.

117. In his written submissions on sentence, the applicant’s counsel did not contend that the applicant’s background was such as to attract the Bugmy principle. However, in oral submissions he did so and referred to the applicant’s background as containing “Bugmy type features” without further elaboration (T.27.5, 12.12.2018). In his Reasons, the sentencing judge noted that the applicant’s parents had each, at one stage, been addicted to heroin and had separated when he was young; that the applicant’s father had suffered from alcoholism and that the applicant’s domestic upbringing had been violent. The sentencing judge noted that the applicant had been sent to live with his father and then returned to his mother because of behavioural issues (see [63] hereof).

118. In respect of the applicant’s work history, the sentencing judge referred to evidence that the applicant had been terminated from employment because of his drinking on a number of occasions. However, on each occasion the applicant appeared to have obtained alternative employment quickly to the point where he appeared to have no real lengthy periods of unemployment. The sentencing judge stated that he had “taken all of the factors bearing upon the [applicant’s] background into account in determining an appropriate sentence.

119. The plurality in the High Court in Bugmy referred to “profound childhood depravation” and observed that an offender’s “childhood exposure to extreme violence and alcohol abuse” may substantially reduce the offender’s moral culpability for a recourse to violence when frustrated but may also increase the importance of protection of the community (Bugmy at [44] and [46]). Their Honours summarised the offender’s childhood in that case, which included alcohol abuse and violence that were “common place”, he was illiterate, he commenced drinking alcohol and taking drugs at the age of 13, he reported witnessing his father stab his mother 15 times, he and his siblings all had records for violence, his record commencing at age 12, he had spent time in juvenile detention centres and much of his adult life in prison and he gave a history of repeated suicide attempts (Bugmy at [12]).

120. While the applicant’s upbringing involved exposure to violence and drug and alcohol abuse, it falls short of the “profound childhood deprivation” discussed in Bugmy. Ms Duffy noted that the applicant’s father had stopped drinking and using drugs by the time the applicant was 12 years old. At primary school, the applicant was good at reading and maths and he completed the equivalent of year 10 with a different teaching approach that helped him achieve his certificate and this led to employment opportunities and an apprenticeship.

121. Nevertheless, although the applicant’s childhood circumstances were not as bad as those of the offender Bugmy, it was certainly a matter which could and should be taken into account by way of mitigation of the applicant’s offending. It provided, at least in part, some explanation for the applicant’s excessive alcohol consumption and his ready resort to violence. That having been said, his Honour referred to all of those matters at [95]-[98] of the Reasons. Most particularly, his Honour said:

“98   I have taken all of the factors bearing upon the offender’s background into account in determining an appropriate sentence.”

122. It is not suggested that his Honour did not in fact take his background into account as he said. The criticism is that he should have provided much more detail as to how he was going to treat that evidence and specifically refer to the concept of moral culpability.

123. I am not persuaded that his Honour was required to do any more than he did. It would have been helpful if his Honour had specifically referred to moral culpability and the effect of the applicant’s background on that concept, but his Honour was not in error in failing to do so. It is clear from his Honour’s treatment of the applicant’s background that he was going to take it into account as a matter of mitigation when sentencing the applicant. His Honour in this case was not required to do more.

124. This ground of appeal has not been made out.

125. Before leaving this ground, I should say something about moral culpability. In the course of the appeal, it was implicitly suggested on behalf of the applicant that the concepts of objective seriousness and moral culpability were, to some extent, synonymous. I do not agree. My understanding of the concept of moral culpability is that it is a stand alone concept, which like totality and proportionality, can be affected by subjective matters and matters which go to objective seriousness. For example, evidence relating to a deprived and/or violent background clearly raises subjective matters which, as the High Court has pointed out, can influence a finding as to moral culpability. Equally, evidence of such matters as torture, which clearly go to the objective seriousness of the offending, can also influence a finding as to moral culpability.

“I seen the drag marks from where I dragged her … I tried to f ---k, I breathed in her mouth, I did CPR and she was f ---ing in my mouth.

- and then she’ll just dose off again and I’m like no, I’d slap her in the face. Stay with me, stay with me, stay with me, but she wouldn’t stay with me.

- I’d be slapping her head, stay with me, stay with me … and her stomach would just f ---k keep squeezing and then f ---ing I’d run back to her and I’d squeeze her stomach again.

- I just remember holding her, dragging her towards me and she was bleeding everywhere.”

6. thus the applicant on his own version dragged the deceased before commencing CPR, slapped her in the face, possibly repeatedly to get her to stay awake, squeezed her stomach repeatedly and dragged her towards him again when she was bleeding. The heightened emotion, the fact that the applicant was highly intoxicated and his desperate struggle to keep her awake may have led the applicant to be physically rough with the deceased, explaining many of the injuries she sustained.

153. Further complicating whether the Crown could prove beyond reasonable doubt the existence of gratuitous cruelty, the applicant and the deceased had been in an on again/off again relationship since October 2015 which had been “characterised by domestic violence”. The facts tendered on sentence referred to the deceased and the applicant having a fight one week before her death that caused them to break up.

154. In McCullough v R Howie J (McClellan CJ at CL and Simpson J agreeing) referred to gratuitous cruelty as:

“30    … the infliction of pain is an end in itself. It is needless yet intentional violence committed simply to make the victim suffer. It might be found, for example, where a robber inflicts pain upon an already compliant victim who was willing to part with the property demanded or in a case of a sexual offence where the victim is assaulted even though he or she is not resisting the offender. But in offences which are of their nature violent, such as wounding or the infliction of grievous bodily harm, where the purpose of the offence is to cause pain and suffering to the victim there needs to be something more for the factor to be present than merely that the offender had no justification for causing the victim pain.”

155. The applicant submitted that neither the various bruises nor the application of a choke hold upon the deceased by him were sufficient to make out a finding of gratuitous cruelty as that expression was explained in McCullough.

156. Contrary to the applicant’s submissions, the Crown submitted that it was open to the sentencing judge to find that the offence involved gratuitous cruelty. The Crown relied upon the following:

1. the applicant admitted to grabbing the victim, dropping her to the ground, wrapping his legs around her legs and stretching her out so that her neck went up and she passed out through lack of circulation and he referred to the choker hold as being a “jujitsu thing”;

2. the victim weighed only 51kg;

3. the neck compression included abrasions and bruising to both sides of the neck and to the mandible;

4. there were facial, oral and conjunctival petechial haemorrhages;

5. there were "superficial sharp trauma" injuries to the right thumb and finger;

6. the stab wound to the chest was forceful enough to have fractured the 3rd left rib;

7. the victim’s face had a 3cm x 1 cm bruise to the left forehead; a 0.5cm bruise to the right earlobe; a 2cm x 3.5cm bruise to the nasal bridge; a 20cm bruise to the left nostril; bruise to the lower left lip; a 0.6cm x 1cm bruise to the right chin and a 20cm bruise to the middle chin under the surface; a 2cm x 1cm bruise to the upper left eyelid; a 0.5cm bruise below the left eye; other bruises on the mandible and jaw;

8. on the victim's left arm there was a 1cm x 2cm bruise to the forearm, a 1cm bruise to another part of the forearm; a 4cm x 6cm bruise to the elbow, a 60cm bruise to the triceps; on the right arm there was a 3cm x 2cm bruise to the forearm;

9. on the victim’s right leg there was a 6cm x 3cm bruise to the thigh, a 1.5cm bruise to the shin, a 2cm bruise to another part of the shin, a 9cm x 3cm bruise to the foot with a 1.5cm abrasion within the bruise, a 10cm abrasion to the shin; on her right leg there was a 10cm x 5cm bruising to her ankle and foot, three 2cm-3cm bruises to the shin, another 3cm bruise to the shin, a 5cm x 3cm bruise to the hip, a 1cm laceration to the thigh, a 1.5cm bruise to the thigh, a 1.7cm superficial incision to the big toe and a 0.9cm superficial incision over the medial malleolus.

157. The Crown submitted that it was open to the sentencing judge to conclude that these injuries were entirely inconsistent with the deceased having sustained them (as was submitted on the applicant’s behalf) as a result of the exigencies of life. Moreover, on the applicant’s own admission to the police, he applied pressure to the deceased’s neck in what was obviously a choking type action. The Crown submitted that these matters established gratuitous cruelty which further aggravated the offending.

158. Despite the number of bruises and injuries found upon the deceased’s body, I do not see how, on the evidence before his Honour, it could be found beyond reasonable doubt that these injuries were inflicted by the applicant at the time of the killing and that they were committed to make her suffer. Because there was no expert evidence as to the age of the bruising and other injuries, the possibility that these bruises and injuries occurred on occasions other than the killing could not be excluded. When one adds to those considerations, the applicant’s somewhat rough attempts to assist the deceased after the stabbing, I cannot be satisfied beyond reasonable doubt that any of these injuries were inflicted simply to make the deceased suffer.

159. It follows that this ground of appeal has been made out.

Ground 7 – The sentence is manifestly excessive

160. The applicant submitted that the submissions made under this heading were designed to persuade the Court that if it became necessary to re-sentence the applicant, these submissions would be relevant to the re-exercise of the sentencing discretion by the Court.

161. In view of the applicant’s success in making out Grounds of Appeal 3 and 6, it is necessary to re-sentence the applicant in accordance with the guidance provided by the High Court in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

Re-sentence

162. The applicant relied upon four cases which had been cited by the Crown to the sentencing judge: R v Darbanou [2018] NSWSC 1672; R v Murray [2015] NSWSC 1034; R v Sjahadi [2013] NSWSC 540 and R v Homann [2018] NSWSC 757. The applicant also relied upon a further six cases: R v Ruttley (No 7) [2017] NSWSC 1582; R v Crickitt (No 2) [2017] NSWSC 542; R v Hosseiniamraei [2016] NSWSC 1181; R v Mahon [2015] NSWSC 25; R v Archer [2015] NSWSC 1487 and Archer v R [2017] NSWCCA 151 and R v Boyd (No 2) [2018] NSWSC 380.

163. The applicant acknowledged the limitations inherent in a comparison with a limited number of cases which invariably would involve different facts. The applicant submitted, however, that to the extent that questions might arise as to the representativeness of the sample, it was significant that four of the cases were relied on by the Crown in the sentence proceedings.

164. In most of the cases relied on by the applicant, the sentences imposed were less than that which his Honour imposed on the applicant. The applicant submitted that by comparison with the particular cases to which he referred, the sentence in his case was shown to be a very stern one and was not justified by the factors to which his Honour had regard and that this Court in independently exercising the sentencing discretion would impose a lesser sentence.

165. A summary of the facts in the four cases relied upon by the Crown is set out in the applicant’s written submissions on appeal at [67]-[71]. A summary of the significant features of the decisions relied upon by the applicant is attached to this judgment.

166. It is not intended to refer to those cases in any detail.

167. In any event, the “comparative” cases relied upon by the applicant do not establish a sentencing range for this matter. It depends, as does all sentencing, on its particular facts. The High Court and this Court have said on a number of occasions that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for each offence by balancing many different and conflicting features (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34]).

168. The comparative cases relied upon by the applicant do not establish that the sentence imposed by his Honour was manifestly excessive. The limitations of comparative cases are well established: See, for example, Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [83]-[84]; Pham v R [2014] NSWCCA 115 at [57]. In particular, it is to be borne in mind that comparative cases do not fix the boundaries within which sentencing judges are obliged to act: Hili v The Queen: Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]. Further, as the plurality said in Hili at [18]:

“… the consistency that is sought is consistency in the application of relevant legal principles not some numerical or mathematical equivalence.”

(See also Barbaro v The Queen at [40].)

169. As was observed by Adamson J (McClellan CJ at CL and Rothman J agreeing) in Vandeventer v R [2013] NSWCCA 33 at [45]:

“45   One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive.”

170. In any event, there are some clear distinguishing features in the cases referred to by the applicant. As outlined in the Table attached to this judgment, the cases relied upon by the applicant, particularly those with significantly lower sentences, are distinguishable from the present case: (1) in Ruttley, there was no intent to kill, the only intent was to cause grievous bodily harm. Further a Bugmy finding was made and the applicant had an IQ in the borderline range; and (2) in Crickitt and Hosseiniamraei, the offender had no criminal record and did not commit the offence in breach of an AVO or conditional liberty.

171. The absence of a criminal record on the part of Hosseiniamraei is of particular significance. This matter is relevant to many of the purposes of sentencing as set out in s 3A of the Sentencing Act. In particular, it impacts upon the need for specific deterrence and for the protection of the community. Similarly, the fact that the present offence was committed in breach of an AVO is a matter of significance in the assessment of each of these purposes and also heightened the need for denunciation and the need to make the applicant accountable for his actions.

172. Apart from the question of whether or not the applicant’s intoxication was a matter to be properly taken into account as an aggravating factor and the question of whether the offending involved gratuitous cruelty, the applicant has not contested that the other matters taken into account by the sentencing judge were properly matters of aggravation or mitigation. The principal challenge by the applicant was whether these matters had been properly taken into account depending on whether they went to the objective seriousness of the offending or were subjective matters personal to the applicant.

173. The question of whether the applicant’s intoxication was a matter properly to be taken into account as a matter of aggravation has been decided against the applicant and I have taken it into account in the re-sentencing exercise. On the other hand, the issue of gratuitous cruelty has been decided contrary to his Honour’s finding and I have not taken that matter into account as a matter of aggravation.

174. In the independent exercise of the sentencing discretion, I have taken into account the following matters:

1. the maximum penalty for this offence is life imprisonment with a 20 year standard non-parole period by way of a second legislative guidepost;

2. there is no challenge to his Honour’s finding that the applicant intended to kill the deceased, nor that the objective seriousness of the offence was above mid-range;

3. the murder involved the use of a weapon in the deceased’s home;

4. the Form 1 offence of contravening the AVO in the deceased’s favour has also been taken into account in sentencing for the murder;

5. the murder occurred in a domestic violence context;

6. there was a history of domestic violence by the applicant towards the deceased and the current offence reflected the applicant’s “exercise of control and dominion over the [the deceased], these being common features of domestic violence offences”: Moore v R [2019] NSWCCA 264 at [5] per Johnson J;

7. the applicant knew he was liable to act violently when he was intoxicated;

8. the applicant had an extensive criminal history, which had to be taken into account in the way prescribed in Veen (No 2);

9. The applicant’s prospects of rehabilitation were guarded at best.

175. By reference to those matters, it is clear that both general and specific deterrence are of importance in this re-sentencing exercise. In particular, the prevalence and seriousness of domestic violence requires that weight be given to general deterrence and denunciation. Such an approach is in line with the decisions of Munda v Western Australia at [54]-[55]; R v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [21]; DPP v Darcy-Shillingsworth [2017] NSWCCA 224 at [84]-[85], [107]-[108]; Majzoub v Regina [2019] NSWCCA 94 at [26]; Patsan v R [2018] NSWCCA 129 at [41]-[43], and Cherry v The Queen at [78]-[79].

176. As the High Court has observed, there is a “longstanding obligation of the State to vindicate the dignity of each victim of violence to express the community’s disapproval of that offending and afford such protection as can be afforded by the State to the vulnerable against repetition of violence” (Munda v Western Australia at [54]). Importantly, the applicant’s criminal history and his attitude to the AVO and court orders each indicate that significant weight should be given to specific deterrence and the protection of the community.

177. By way of mitigation, regard needs to be had to the lack of planning and spontaneous nature of the offending. Full weight has to be given to the applicant’s disadvantaged background, although the facts of this case are far different to those in Bugmy v The Queen. Regard needs to be had to the finding of genuine contrition and remorse on the part of the applicant which was not challenged. Like the sentencing judge, I am not persuaded that this is an appropriate matter for a finding of special circumstances. The parole period, which will be fixed, will be adequate to allow the applicant to re-adjust to living in normal society.

178. Taking all those matters into account, the sentence which I propose is imprisonment with a non-parole period of 18 years and a balance of term of 6 years.

179. Accordingly, the orders which I propose are:

1. Leave to appeal against sentence is granted.

2. The appeal against sentence is allowed.

3. The sentence imposed by Bellew J on 14 December 2018 is quashed.

4. In lieu thereof, the applicant is sentenced to imprisonment for a period of 24 years, commencing 30 September 2017 and expiring 29 September 2041, with a non-parole period of 18 years expiring 29 September 2035.

180. PRICE J: I have had the advantage of reading the judgment of Hoeben CJ at CL in draft. For the reasons enunciated by Justice Hoeben, I agree that Grounds 3 and 6 of the appeal have been established. Nevertheless, I find myself in respectful disagreement as to Ground 4.

181. In her report, Ms Duffy deals with the applicant’s disadvantaged background which the sentencing judge summarised at [95]-[97] of his Reasons. However, his Honour’s consideration of this material was confined to the somewhat cursory statement at [98] that “all of the factors bearing upon the offender’s background” had been “taken into account in determining an appropriate sentence”.

182. In my respectful opinion where there was evidence that the applicant’s adverse childhood experiences exposed him to the likelihood of depression and substance dependence and his engagement in assaults and substance use could be linked to that disadvantaged background, it was necessary for some assessment to be made as to the extent (if any) that the applicant’s moral culpability for the murder might be reduced.

183. I agree with Justice Hoeben’s opinion that the concepts of objective seriousness and moral culpability are not synonymous. As the plurality (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) observed in Munda v The State of Western Australia (2013) 249 CLR 600; [2013] HCA 88 at 621 [57]:

“The circumstance that the appellant has been affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that consideration must be balanced with the seriousness of the appellant’s offending.”

184. In any event, it is my view that the applicant has made out his complaint in Ground 4.

185. In the exercise of my independent sentencing discretion, I agree with the orders that Justice Hoeben proposes. I would add to his Honour’s reasons that the applicant’s disadvantaged background reduces his moral culpability to a modest extent. However, as Justice Hoeben points out, significant weight is to be given to specific deterrence and the protection of society.

186. CAMPBELL J: I have had the considerable advantage of considering the judgment of Hoeben CJ at CL and the additional reasons of Price J. Their Honours differ as to whether Ground 4 has been made good. As the references to relevant authorities by each of the other members of the Court make clear Bugmy considerations, like other relevant factors, can cut both ways for sentencing purposes. As Hoeben CJ at CL points out at [63] above the sentencing judge summarised the material pertinent to this factor and said he had taken them into account. It was also evident that the sentencing judge considered that the applicant’s propensity for violence when intoxicated and his anger management issues, both of which may have been products of his deprived upbringing, pointed in the direction of the need for a longer sentence notwithstanding any diminution in moral culpability. On this same point it is relevant to bear in mind that in Munda (at [57]) the plurality of the High Court said:

“It is also important to say that it should not thought that indulging in drunken bouts of domestic violence is not an example of moral culpability to a very serious degree”

187. In my judgment the balancing approach to these conflicting factors involving Bugmy considerations comes through in a consideration of the whole of the reasons at first Instance. I agree with the orders proposed by Hoeben CJ at CL for the reasons his Honour gives. I also agree with Price J’s observation at [183].

Case	Plea	Sentence	Aggravating Factors (compared to present case)	Mitigating Factors (compared to present case)
R v Ruttley (No 7) [2017] NSWSC 1582	Not guilty	NPP: 18 years Head Sentence: 24 years	The offender transported the victim’s body to another location. The offender lied to police. Although the offender pleaded not guilty, a small allowance was given for defence co-operation in the trial.	Intent was intent to cause grievous bodily harm, not to kill; The offender had consumed alcohol but denied being drunk; The nature and manner of the injuries inflicted on the victim were unknown The offender was not subject to an AVO at the time of the offending (although he had previously contravened such an order). There was no Form 1. The offender was of Aboriginal descent and came from an impoverished background. His family often went without basic necessities. Bugmy finding made. The applicant had been diagnosed with executive dysfunction. His IQ was in the borderline range. The sentencing judge did not find that this disability played a causative role in the commission of the offence. Some prospects of rehabilitation.
R v Crickitt (No 2) [2017] NSWSC 542	Not guilty	NPP: 20 years and 3 months Head Sentence: 27 years	The offender was motivated by his dislike of the victim and a desire to start a new relationship with the women he was having an affair with. As well as a secondary motive of financial gain in the form of an insurance payout. The murder was premeditated and planned. The offender prepared for the murder by viewing websites about insulin overdoses, took steps to obtain insulin without detection and injected his wife with the insulin intending to kill her. The murder involved a very serious breach of trust with the offender being his wife’s treating doctor for a number of years. He had no remorse	No Form 1 The offender had been married to the victim for 19 years and there was no history of domestic violence. The offender was 56 years old and had no criminal record. No evidence of history of drug or alcohol abuse. He suffered from a longstanding depressive illness and a number of physical health conditions. The offender’s co-operation at trial shortened the trial and had real utilitarian value.
R v Hosseiniamraei [2016] NSWSC 1181	Guilty	NPP: 15 years 9 months Head Sentence: 21 years	Four additional matters were taken into account on a Form 1 (Contravene AVO, offensive behaviour and 2 counts of damage property) The offender was not genuinely remorseful.	The offending did not occur in the deceased’s home. There was no finding of gratuitous cruelty. The offender was aged 33 at the time of the offences. He had no previous criminal convictions and was of prior good character. He was born in Iran and experienced animosity, discrimination and prejudice growing up due to his Baha’i faith. Some reduction of moral culpability (albeit “not to any great extent”). He had a history of substance abuse using heroin, cannabis and ice on most days. There was no evidence of a link between his substance abuse and offending. The offender had a history of self harming in the past and was diagnosed with chronic dysthymia, borderline personality disorder, substance use disorder and adjustment disorder with depressed mood. The offender has reasonable prospects of rehabilitation.
R v Mahon [2015] NSWSC 25	Guilty	NPP: 16 years and 10 months Head Sentence: 22 years and 6 months	The offender attempted to conceal the offending by lying and concealing the deceased’s body. The offender inflicted a burning injury on deceased’s body to the genital area reflecting a high level of disrespect to her body but there was no finding of gratuitous cruelty. There was no remorse.	The offender was aged 43. The psychologist report detailed long term history of depression, anxiety and post-traumatic disorder. There was no convincing evidence of remorse. The Victim Impact Statement was not considered as demonstrating an aspect of harm to community.
R v Archer [2015] NSWSC 1487 Archer v R [2017] NSWCCA 151	Guilty	Murder NPP: 18 years Head Sentence: 24 years Wounding NPP: 6 years Head Sentence: 8 years Contravene AVO Fixed term: Reduced to 12 months on appeal Total Sentence Total Effective NPP: Reduced to 19 years and 6 months on appeal Total Effective head sentence: Reduced to 25 years and 6 months on appeal	Two counts and a related summary charge (murder, wounding with intent to cause grievous bodily harm and contravene Apprehended Violence Order). Offence involved a spontaneous eruption of vicious rage with a degree of purposeful behaviour, in selecting a bone knife from the kitchen before attacking the deceased and attacking the second victim to prevent her telephoning for help.	The offender was aged 53 at time of offending. He had a happy childhood and was capable of a constructive and positive contribution to the community. He had a gambling problem and suffered from depression. He had previously attempted to commit suicide. He worked as a wing sweeper in prison. There was a finding that in regard to the offender’s future prospects there was some reason for optimism. There was a finding of special circumstances. Partial accumulation of sentences.
R v Boyd (No 2) [2018] NSWSC 380	Guilty (late plea 10% discount)	Murder NPP: 22 years and 6 months Head Sentence: 30 years Wounding NPP: 5 years and 3 months Head Sentence: 6 years and 3 months Dangerous driving Fixed term: 18 months Total Sentence Total Effective NPP: 25 years and 6 months Total Effective head sentence: 33 years	Three counts (murder, wounding with intent to cause grievous bodily harm and driving a vehicle in a dangerous manner whilst he ought reasonably known that police were in pursuit). Savage sustained attack on deceased over the course of at least half an hour using multiple weapons. Demonstrated deliberate focus in attacking and preventing son from intervening in attack on deceased. Washed hands and fled scene demonstrating a level of calculation. Little if any proof of prospects of rehabilitation. Lacked remorse and attempted to shift blame onto police.	The offender was aged 53 at time of sentence. Prior history of depressive episodes requiring medication.. Partial accumulation of sentences.

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Amendments

15 January 2020 - Junior counsel for applicant omitted from cover sheet.

Decision last updated: 15 January 2020