Zabakly v The Queen

Case •

[2021] NSWCCA 155

•

12 July 2021

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Zabakly v R [2021] NSWCCA 155
Hearing dates: 5 May 2021
Date of orders: 12 July 2021
Decision date: 12 July 2021
Before: Basten JA at [1];
Brereton JA at [87];
Beech-Jones at [101]
Decision:

(1)   Grant the applicant leave to appeal against his convictions.

(2)   Dismiss the appeal against the convictions.

(3)   Grant the applicant leave to appeal against the aggregate sentence imposed on 13 December 2019 by the District Court.

(4)   Allow the appeal against sentence and quash the sentence imposed in the District Court on 13 December 2019.

(5)   In place thereof:

(a)   impose an aggregate sentence of 8 years imprisonment to commence on 2 January 2019 and expire on 1 January 2027;

(b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act1999 set a non-parole period of 6 years;

(c)   specify that the earliest date the applicant will be eligible to be released on parole is 1 January 2025;

(d) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows:

Count 1 – fixed term of imprisonment for 18 months.

Count 2 – imprisonment for 7 years and 4 months imprisonment with a non-parole period of 5 years 6 months.

Catchwords:

CRIME – offences – break and enter and commit a serious indictable offence therein – attempt – entry not effected – whether inchoate offence could only be break and enter with intent to commit a serious indictable offence – attempt related to both elements of offence – Crimes Act 1900 (NSW), ss 112, 113

CRIMINAL PROCEDURE – application by prosecutor to cross-examine own witness – unfavourable witness – statement to police put to witness – whether evidence admissible – Evidence Act 1995 (NSW), s 38

CRIMINAL PROCEDURE – application by prosecutor to cross-examine own witness – question challenged evidence on basis which affected witness’ credibility – question put to allow submission that witness mistaken – whether unfair to accused or witness – Evidence Act 1995 (NSW), s 192(2)(b)

CRIME – appeals — appeal against conviction — unreasonable verdict – identity of offenders – whether appellant present – whether appellant shared joint purpose to break and enter and intimidate

SENTENCING – appeal – evidence – evidence of personal circumstances not adduced before sentencing judge – whether admissible on appeal to challenge sentence – admissible on resentencing

SENTENCING – leave to appeal – aggregate sentence for multiple offences – aggregate sentence exceeded sum of putative individual sentences

SENTENCING – relevant factors on sentence – parity – sentence of co-offender reduced on appeal – whether ground of reduction required adjustment of applicant’s sentence

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 13

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A, 54A

Crimes Act 1900 (NSW), ss 112, 113

Criminal Appeal Act 1912 (NSW), s 5

Evidence Act 1995 (NSW), ss 38, 76, 78, 192

Cases Cited:

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

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

Dixon v R [2020] NSWCCA 123

Kennedy v R [2000] NSWCCA 487; 118 A Crim R 34

R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279

Category:Principal judgment
Parties: Theodore Zabakly (Applicant)
Regina (Respondent)
Representation:

Counsel:
A Francis (Applicant)
K Jeffreys (Respondent)

Solicitors:
G Mitchell (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2018/121932
 Decision under appeal 
Court or tribunal:
District Court
Jurisdiction:
Criminal
Date of Decision:
13 December 2019
Before:
Grant DCJ
File Number(s):
2018/121932

Judgment

  1. BASTEN JA: On the evening of 24 April 2017 an incident occurred at a ground floor unit in Woodward Crescent, Miller, which involved an attempted break and enter through the front door, followed by the discharge of a firearm through a rear window of the unit. The occupier, a 72 year old man, living alone, was present at the time and had refused the applicant and two other men entry to the unit immediately before the attempt to break and enter.

  2. The applicant, Theodore Zabakly, was charged in relation to these events and was convicted by a jury on two charges, namely:

  1. Attempting to break and enter a dwelling house to commit a serious indictable offence, namely intimidation, in circumstances of special aggravation, namely being in company with two other males who were armed with a dangerous weapon, namely a shotgun; and

  2. Firing a firearm at a dwelling house with reckless disregard for the safety of any person.

  1. The trial judge, Grant DCJ, sentenced the applicant to a period of imprisonment involving a non-parole period of 8 years with an additional term of 3 years, giving an aggregate sentence of 11 years for the two offences. The commencement of the sentence was backdated to 2 January 2019.

  2. Although the verdict was returned on 31 May 2019 and sentencing occurred on 13 December 2019, an application for leave to appeal was not filed until 16 October 2020.

  3. Grounds 1 and 2 of the proposed appeal with respect to the convictions challenged each verdict as unreasonable. Two further specific grounds, 3 and 4, related to steps taken in the course of the trial:

“3.   The trial judge erred in granting the Crown leave to cross-examine the victim in respect of a statement he provided to the police containing an inadmissible opinion.

4. The trial judge erred in permitting the Crown to cross-examine an eyewitness, Mr McCallum, absent and without consideration of mandatory factors namely s 38(6) and s 192 of the Evidence Act.”

It will be convenient to consider the specific grounds before determining whether the verdicts were unreasonable and not supported on the evidence.

  1. The aggregate sentence was challenged on four grounds which read as follows:

“5.   The conclusions of this Court in upholding the appeal in Dixon v R [2020] NSWCCA 123 [give] rise to the need to re-exercise the sentencing discretion.

6.   The aggregate non parole period imposed, which is six months greater than the addition of the indicative sentences is erroneous.

7. If this Court were to substitute a verdict contrary to s 113(3) Crimes Act in respect of Count One, the maximum penalty is twenty years imprisonment and not twenty-five years imprisonment.

8.   The sentence is manifestly excessive.”

  1. Without determining whether ground 4 involved a question of law alone, it is apparent that each of the other grounds requires leave to appeal pursuant to s 5 of the Criminal Appeal Act 1912 (NSW). As each ground is reasonably arguable, it is appropriate to give that leave. If the convictions stand it will be necessary to redetermine the sentence.

  2. It is also apparent that there is, implicit in ground 7 relating to resentencing, a contention that the applicant was wrongly convicted with respect to an offence under s 112(3) of the Crimes Act 1900 (NSW) in relation to the attempted break and enter and should, if the conviction were to stand, have been convicted under s 113. For reasons which will be explained, the contention should be rejected: it is convenient to deal with that issue immediately after setting out the circumstances of the offending and before dealing with the appeal grounds challenging the convictions.

Factual background

  1. The events of the evening of 24 April 2017 may be divided into three stages. They occurred within a period of some 5 minutes, at around 7.30 or 8pm in the evening. Although it was dark, the area outside the victim’s unit was reasonably well lit.

  2. The first stage involved the applicant knocking on the victim’s door. The victim, Victor Savona, recognised the applicant whom he knew as “Theo”, having met him on about six prior occasions. With the applicant was another person the victim knew as “Dicko”, who was identified as Matthew Dixon. There was a conversation between Mr Savona and the applicant, during which a third man approached the door, carrying a bag; the victim knew him as “Scotty”.

  3. The whole of the conversation which took place at that time was between the applicant and the victim. The victim gave evidence as to the conversation in the following terms: [1]

“I said to Theo, I said, how are you; what do you want.

…

He said, have you got anything. And I said--

…

Yes, and I replied, ‘No I don't have anything’, and he said, ‘Are you sure’, and I said, ‘No, but I'm very sick, and I need to go back to bed’, at which time I closed the door in his face, because I was very sick.”

The victim also said that he had assumed that Theo was “looking for some sort of a pill to take”.

1. Tcpt, 27/05/19, p 7(30).

  1. Stage two occurred very shortly thereafter. The victim stated that he heard “some mumbling at the door” and there followed a loud bang at the door which he described as “very very loud.” [2] He said that when he heard what he took to be a kick against the front door he “dropped to the carpet” because he was “petrified of what was going to happen”. [3] He said he then “put [his] shoulder up against the door in case they wanted to kick it in again.” [4] The victim gave evidence that the door opened “when the keeper was kicked off, I would say that the door opened approximately 15 to 18 inches. At which point of time I dropped to the carpet, I put my shoulder behind it and closed it again.” [5] He said that he “closed it within one or two inches of being fully closed.” [6] He could not see who kicked the door. [7]

    2. Tcpt, p 9(16).

    3. Tcpt, p 10(16).

    4. Tcpt, p 10(30).

    5. Tcpt, p 12(10).

    6. Tcpt, p 12(43).

    7. Tcpt, pp 13(18), 14(5).

  2. That, in effect, completed stage two. Stage three involved the shotgun blast. The victim was still lying on the floor behind the front door and said that “approximately 20 seconds later, the shotgun blast came through my back window”. [8] He said he was “[s]till lying on the carpet, but my head had turned to my back window, and within three or four seconds, there was a big puff of smoke which came from the shotgun”. [9] He said there was a photograph of his two sons on the wall above his head and the shotgun blast “hit that particular photograph and all of the glass shattered onto my face and my head.” A piece of glass embedded in his forehead. [10]

    8. Tcpt, p 14(40).

    9. Tcpt, p 15(1).

    10. Tcpt, p 15(10)-(25).

  3. There were aspects of Mr Savona’s account which were not consistent with his statement to police, but it will be convenient to explain that matter in addressing ground 3.

  4. The prosecutor called Glenn Freeman who lived in the unit above the victim. He gave evidence that he went out on to his balcony when he heard noise coming from the unit below and said he “saw three men at [Mr Savona’s] door, trying to break in”. [11] He could not see the faces of the men, but he said that one of the men had a red bag and “he pulled out a sawn-off shotgun out of there.” He also said “they were threatening to shoot Victor through the door and – and trying to break in still.” [12] He heard the victim call out, “Somebody – somebody – somebody is breaking in. Help. Help. Help.” Mr Freeman then turned to a table outside his doorway, on which was an old television set which he picked up and threw over the balcony. He said that the man with the gun ran out towards the lawn and pointed the gun at him. [13] He described the man as probably around 40 years old, with tattoos on his face, “he was not a solid man”, had light hair and was Caucasian. He said that when the man pointed a gun at him he went back into his unit and that “pretty well straight away … I heard a gunshot … and they drove off.” When asked how long after he went inside he heard the gunshot he said “[p]robably would have been only two or three minutes, maybe, if that … could have been, like, 30 seconds.” [14]

    11. Tcpt, p 117(15).

    12. Tcpt, p 118(17).

    13. Tcpt, p 119(35).

    14. Tcpt, p 122(28)-(33).

  5. Mr Freeman then went downstairs and spoke to the victim, noting he had “some blood on the back of his head”. He described him as “pretty upset” and said that he “mentioned a Samoan fellow but – and Dicko – and what’s his name, Theodore, maybe? Theo. They’re the names I think I remember Vic – Vic saying.”

  6. The prosecutor also called David McCallum, who lived on the floor above the victim and about 30 metres distant. [15] He was inside his unit when he heard “yelling and banging” at around 8 o’clock. [16] He said that he went outside to investigate and saw “two men out the front of Victor’s door.” [17] He said they were “trying to gain entry … by breaking the screen door and then yelling at him.” [18] He described one of the men as carrying a “red bag – like a Coles bag, like a Woolworths, more or less.” He described him as around 30, Australian, height about 5-9, 5-10 and medium build. He described his hair as light brown and short. He described both of the men in similar terms. [19] Whilst the men were trying to break the screen door and gain access, he heard the victim yell out for one of his neighbours to help him. He thought the neighbour was Osama and said he saw Osama at this time “he actually started to walk over towards, like, the one with the red bag. And the guy with the red bag said, ‘Don’t you get involved, Osama.” [20] He also described Mr Freeman picking up a television and throwing it off the top balcony. [21] At first he went back into his unit and then came outside and saw the men leave the front of the victim’s place and go down “a little set of stairs that go into the car park down the back.” He stated: [22]

“They left from the front of Victor’s, walked down, like, three stairs into the carpark, and then they jumped in a – like, a four-wheel drive and then they left. But before he got – before he got into the four-wheel drive, I'd heard a bang and I've – because – like, that sounded like a gun. … I can't see the carpark but I walked along the – the walkway and there's a set of windows on the first landing and you can see into the carpark.”

15. Tcpt, pp 96(37) and 109(30).

16. Tcpt, p 96(44)-(47).

17. Tcpt, p 96(50).

18. Tcpt, p 97(3)-(6).

19. Tcpt, pp 97(26)-98(34)

20. Tcpt, p 99(4).

21. Tcpt, p 99(30).

22. Tcpt, p 100(10).

  1. He said that that two of the men were on their own, but a third man was waiting in the car. He described him as of Islander appearance and weighing 135-140kg. [23]

    23. Tcpt, p 100(28).

Challenge to pleading of count 1

  1. Count 1 on the indictment stated that the applicant –

“On 24 April 2017, in Miller in the State of New South Wales, did attempt to break and enter the dwelling house of [the victim] situated at … to commit a serious indictable offence, namely, intimidation, in circumstances of special aggravation, namely, the said Theodore Zabakly was in company with Matthew Dixon and an unknown male, and they were armed with a dangerous weapon, namely, a shotgun.”

  1. The formulation of count 1 followed the language of s 112(3) of the Crimes Act modified to include reference to attempt, as generally provided by s 344A. The form on the indictment, however, had been varied in the course of the trial, the original having charged that the applicant “did attempt to break and enter the dwelling house … and then in the said dwelling house did commit …”. The change reflected the fact that the prosecution case did not encompass entry to the dwelling house.

  2. The applicant’s contention was that the language of s 112(1)(a) (to which subss (2) and (3) add only circumstances of aggravation) refers to a person who “breaks and enters any dwelling house … and commits any serious indictable offence therein”. The failure to complete entry meant that the charge was properly one under s 113, which refers to a person who “breaks and enters any dwelling house … with intent to commit any serious indictable offence therein”. Counsel for the applicant conceded that it would be open to this Court to substitute a conviction under s 113(3), if the challenge to the conviction on count 1 did not otherwise succeed, but in that event, the applicant would have to be resentenced on the basis that the maximum penalty under s 113 was 20 years imprisonment, and not 25 years imprisonment as under s 112(3).

  3. The basis on which the trial judge accepted the amendment, and the basis on which the Director continued to assert that the count was properly formulated under s 112 of the Crimes Act, was that the attempt to break and enter was accompanied by an attempt to commit an act of intimidation.

  4. No doubt it is true that either offence could have been charged and the prosecutor could equally have established that the attempt to break and enter was accompanied by an intention to commit intimidation; however, that course was not necessary. An offence under s 112 involves two separate and distinct physical elements, namely breaking and entering and committing an offence therein. Because the attempt failed at the first stage, it does not follow that there was no attempt to commit an offence inside the dwelling. It was not submitted that the kicking in of the door was not sufficiently directly and immediately connected with the act of intimidation to prevent a conviction for attempt to intimidate as an element of the overall offence.

  5. The applicant’s contention, put in support of ground 5 on sentence, must be rejected.

Ground 3 – cross-examination of victim

  1. Towards the end of the examination-in-chief of Mr Savona the prosecutor sought leave to cross-examine him under s 38 of the Evidence Act 1995 (NSW). At that stage he indicated the issue in brief terms, referring to Mr Savona’s evidence “that when he was at the front door he didn’t feel threatened or intimidated”. [24] Without obtaining a full explanation, the trial judge directed that, absent objection from the defence, the first course would be to seek to refresh the witness’ memory from his statement to the police on which the prosecution sought to rely. The witness was recalled and was taken to the moment at which he opened the front door for the first time. The examination continued: [25]

    24. Tcpt, p 22(7).

    25. Tcpt, p 23(17).

“Q. What did you notice about the demeanour of each of the three men at that stage?

A. Dicko, who was to the left of Theo appeared to be stoned. He didn't look like he could kick anything in. For – he – he was just so badly stoned. As far as Theo went, he didn't appear to be all that affected. I spoke to him for a short period of time. I asked him if he would leave, he did so without attempting to break into my place. And that's what I could honestly say, he was not guilty of any force against me.

Q. Well, getting to the third man, what about him? What was his demeanour?

A. Well, he was carrying the gun. And the reason I knew he was carrying—

Q. You didn't see any gun at the front door, did you?

A. No. But he had the bag in his hand, and as I said, I didn't think he – he had eggs and butter in there, he had something which resembled a shotgun.”

The witness was then taken to a paragraph in a statement he had made on the day after the offence and asked if, having refreshed his memory, he had anything else to say about the demeanour of the three men at the door to which he asked, “You mean were they threatening? Is that what you mean?” [26] He continued with an answer which did not suggest that they were threatening. The prosecutor then repeated his application for leave to cross-examine, which was granted.

26. Tcpt, p 24(33).

Complaint on appeal

  1. The evidential basis upon which the prosecutor was allowed to cross-examine Mr Savona arose from his evidence at stage one. After describing his verbal exchange with the applicant, Mr Savona said he closed the door and continued: [27]

“I headed back towards my bed, and then if I remember correctly, about two minutes later, somebody with legs like tree trunks, kicked the door in.”

27. Tcpt, p 8(15).

  1. The inference from that evidence was that Mr Savona was not in fear of the three men he saw at the door. As he sought to explain in more detail later, he “suspected that it was the Samoan who threatened me four days earlier. He’d actually threatened me on two occasions.” [28] He was also at pains to say that the applicant, whom he knew as Theo, was not aggressive at any stage. His fear arose when the door was kicked and the keeper broken with a loud bang. He said at that stage he “dropped to the carpet because [he] was petrified.”

    28. Tcpt, p 40(5).

  2. In his police statement of 25 April 2017, at par 20, he had said: [29]

"I then shut the main front door as I suspect that they were going to come in and rob or bash me. About half a minute later, I was still standing behind the main door as I suspected that they were going to try and come in. At this time, I heard a loud bang and I saw that the front door had opened. I immediately got down on the carpet and put my right shoulder firmly against the door to stop them from coming in. As I did this, I also yelled out for help."

29. Tcpt, pp 46(50)-47(5).

  1. The prosecutor questioned him in the following terms: [30]

    30. Tcpt, p 47(23).

“Q. Immediately after you shut the front door on Theo and the two other men …your evidence yesterday was that you then walked back towards your bed to get back into bed.

A. Yeah, to watch the program and also hopefully fall asleep.

Q. But what I'm suggesting to you is that the truth of the matter is what you put in your statement in paragraph 20; that you didn't walk back towards your bed, as you've said in paragraph 20 of your statement of 25 April, you remained at the front door because you were worried there were going to come in and rob or bash you, weren't you?

A. Yes, because he'd threatened to rob and bash me ten days before, and the second threat was involving, ‘If you don't let me into your unit, I'm going to come back and shoot you.’

Q. Who are you talking about? Who made that threat to you?

A. The Samoan.

Q. But the Samoan wasn't at the front door--

A. He wasn't, but he was there.

Q. But you never saw him there, did you?

A. I didn't see him, but I can only say to you out of all the people involved, the four people involved, he's the only one that threatened my life.”

  1. In resisting the prosecutor’s application to cross-examine under s 38 of the Evidence Act, counsel for the applicant raised two primary objections. One was that the earlier statement was not a prior inconsistent statement for the purposes of s 38(1)(c). The judge took the view that it was. [31] The second basis of objection was that the additional material was not admissible because the victim’s fear was neither necessary nor sufficient to demonstrate the element of intimidation in the second limb of the charge.

    31. Tcpt, p 33(25)-(30).

  2. A third, procedural, point was taken, namely that if the evidence were to be given, the questions should first be asked on the voir dire, not before the jury. The judge declined that application. He gave a brief judgment giving his reasons for permitting cross-examination and identifying the scope of the permitted further questioning.

  3. With respect to relevance, the judge noted that the serious indictable offence arose under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13, which makes it an offence to intimidate another person with the intention of causing the other person to fear physical or mental harm. Although it is not necessary to prove that the person feared such harm, the definition of intimidation contained in s 7 includes conduct that causes a reasonable apprehension of injury to a person, or violence or damage to any person or property: s 7(1)(c).

  4. Mr Savona had, in any event, given evidence that he was “petrified”, the only issue was the time at which he felt threatened and by whom. By contrast to the statement he gave to the police, his evidence in Court was clearly designed to exonerate the applicant and implicate a fourth person who, on the evidence, was not present (described as “the Samoan”). The judge concluded that the evidence of the complainant “as it currently stands is unfavourable to the Crown case” and the prosecutor was entitled to explore further the evidence in paragraph 20 of his statement as to when he was terrified and what he feared was going to happen to him. If the answers were inconsistent with the statement, the judge stated that he would grant leave to the prosecutor to cross-examine. More specifically, he granted leave to ask questions about what Mr Savona thought the three men were going to do when they came in and what he meant by them doing “one of two things”. He also granted leave to question the witness about what he meant by “the Samoan threatening his life.”

  5. The evidence in the statement that he yelled out for help at the time the door burst open was not repeated in his evidence-in-chief; but was consistent with the evidence of Mr Freeman set out at [15] above.

  6. On the appeal, counsel for the applicant submitted that Mr Savona’s evidence that he was terrified constituted opinion evidence within s 76 of the Evidence Act and was therefore inadmissible. The Director submitted that it was a state of mind which was admissible with respect to the offence of attempted intimidation, although that offence included an objective element. Further, it constituted part of the witness’ description of the conduct of the men which put him in fear, if it did, and was admissible under s 78 as necessary in describing the witness’ perception of events. These submissions should be accepted. In any event, Mr Savona had already given evidence of his terror without objection.

  7. The remaining submission for the applicant was that, by putting to him the elements of his statement to the police, and by attacking the credit of his own witness, the prosecutor was adducing the contents of the statement, which was not admissible to prove the assertions it contained.

  8. Given that the witness had changed his account from one favourable to the prosecution case to one which exonerated the applicant, there was no error on the part of the trial judge in concluding that he was “unfavourable” within the terms of s 38 of the Evidence Act, nor in giving leave to the prosecutor to put his earlier inconsistent statement to him. In response, Mr Savona did not deny the contents of his statement to the police, but said that “there’s a mistake”, [32] and “it’s clear to me that it was an incorrect statement on my part.” [33] Thus Mr Savona agreed that he had made the statement and it was a matter for the jury as to whether they believed his explanation.

    32. Tcpt, p 47(10).

    33. Tcpt, p 48(15).

  9. Ground 3 is not made out.

Ground 4: leave to cross-examine Mr McCallum

  1. The issue with respect to Mr McCallum fell within a brief compass. He said in his statement to the police, and in his evidence, that he saw two men at Mr Savona’s door on the evening in question. That was inconsistent with Mr Savona’s evidence that there were three men present and with the prosecution case on that aspect.

  2. In Kennedy v R [34] Studdert J (Heydon JA and Greg James J agreeing), following earlier authority, held that there was a serious irregularity in inviting the jury to disbelieve a Crown witness on a basis which had not been put to her and which impacted on her credibility. The obligation of a prosecutor to call all available material witnesses was properly followed. However, as was earlier explained in R v Kneebone,[35] s 38 of the Evidence Act is available to allow the prosecutor, with leave, to address unfavourable aspects of the witness’ evidence. It is required both by fairness to the witness and, more importantly, fairness to the accused, that the inconsistency be put to the witness (who may have an explanation) before the prosecutor invites the jury to disbelieve or disregard the inconsistent evidence.

    34. [2000] NSWCCA 487; 118 A Crim R 34.

    35. (1999) 47 NSWLR 450; [1999] NSWCCA 279 at [104] (Smart AJ, Spigelman CJ agreeing).

  3. The prosecutor in the present case sought to avail himself of that procedure, to ask a single question, namely whether there were not more than two men at the door. The following question and answer were given on the voir dire: [36]

“Q. Mr McCallum, what I want to propose to you is this. That when you first came outside to see what was going on there were in fact three men outside Victor's unit trying to break down the door.

HIS HONOUR

Q. Do you agree or disagree with that proposition?

A. I can only remember two.”

36. Tcpt, p 105(30).

  1. The jury returned and Mr McCallum was questioned as follows: [37]

“Q. I'm going to suggest to you that you're mistaken when you say you came out and only saw two people. There were in fact three men outside Victor's front door trying to break down his front door. What do you say about that proposition?

A. Well, you might be right. But it's been a long time. So.”

37. Tcpt, p 107(20).

  1. Immediately thereafter, counsel for the accused objected on the basis that, “[t]his is not what transpired in the jury's absence.” [38] The judge then noted that it was open to her to take the witness back to his statement to the police and seek to affirm that there were only two men outside the door. She then changed tack and said the question should not have been put, counsel stating that she understood that the judge had disallowed it.

    38. Tcpt, p 107(27).

  2. It is not at all clear what counsel for the accused thought: her first objection was that the evidence given departed from that which had been given on the voir dire, from which it might be inferred that she understood the question would be asked, and was happy with that course on the basis that she knew what the answer would be. However, the fact that the witness gave a different answer provides no basis for a retrospective objection, which, having been rejected, was said to entitle the applicant to an acquittal.

  3. Two further aspects of the procedure were challenged on the appeal. First, it was submitted that no account was taken of the requirement under s 38(6) for the prosecutor to give notice “at the earliest opportunity” of his intention to seek leave under s 38.

  4. No issue was raised during the hearing as to that matter, probably because the leave sought was within such a constrained compass. The trial judge initially thought that it lacked utility. However, the prosecutor was entitled to press for the question to be asked, following which there was a discussion involving a number of exchanges between counsel for the accused and the judge which resulted in counsel stating that she “would prefer that that be asked in the absence of the jury, initially, in that case.” [39] That happened.

    39. Tcpt, p 105(15).

  5. It is true that the prosecutor might have anticipated at an earlier point that he would need to adopt the course raised at the end of his examination of Mr McCallum, but it is not possible to see how any prejudice was caused by the absence of notice at an earlier opportunity, or that the absence of such notice would have affected the course taken by the trial judge.

  6. A second matter was raised based on what happened at the end of the exchange between the judge and the prosecutor. The judge said, “Look, you can put it to him”, noting the submission that the prosecutor would propose to make to the jury. [40] The prosecutor agreed and the judge said, “All right. Let’s go. Let’s get the jury back in.” [41] The prosecutor then said that he should “out of completeness address s 192 in my application again.” The judge responded, “Don’t worry about it.”

    40. Tcpt, p 106(15).

    41. Tcpt, p 106(22).

  7. It was said in support of ground 4 that the judge erred in granting leave without considering the mandatory factors contained in s 192 of the Evidence Act. Section 192 relevantly provides:

192   Leave, permission or direction may be given on terms

…

(2)   Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account—

(a)   the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and

(b)   the extent to which to do so would be unfair to a party or to a witness, and

(c)   the importance of the evidence in relation to which the leave, permission or direction is sought, and

(d)   the nature of the proceeding, and

(e)   the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

  1. In the course of the discussion, the parties agreed that there was only one question to be asked, so that pars (a) and (e) were irrelevant. In the course of his exchange with counsel for the accused, the judge expressly considered any possible “prejudice”, satisfying the first limb of par (b) relating to unfairness to the party. With respect to the witness, the whole purpose of the question was to allow the prosecutor to put to the jury a proposition that the witness had been mistaken, which he could not properly do unless he had raised the possibility with the witness. Accordingly, both limbs of par (b) were satisfied. With respect to pars (c) and (d), the nature of the proceeding was not in doubt, if that referred to it being a criminal trial, and the purpose for which the evidence was sought was clearly identified by the prosecutor in terms which invoked the principle set out in Kneebone and in Kennedy. There was nothing more to be considered under s 192.

  2. Ground 4 must be rejected.

Unreasonable verdicts

  1. It is convenient to deal with grounds 1 and 2 together. The evidence relevant to each count has been set out above.

  2. The prosecution case was based on a joint criminal enterprise involving the applicant and two other men. The time lapse from the conversation between the applicant and Mr Savona, followed by some mumbling which Mr Savona could not hear properly on the other side of the closed door and the attempt to kick in the door, provided clear evidence of all three men being present and one of them, which may well not have been the applicant, attempting to gain entry through the closed door. The evidence of Mr Freeman supported the proposition that there were three men outside the door at the time that one of them attempted to kick the door in. Although Mr McCallum thought there were two men, there was no suggestion that those he saw were joined by any third person. Mr Savona’s attempt, from behind the door, to suggest that there was a fourth man (a Samoan) who was not initially present, and who attempted to kick in the door, was implausible. Both Mr McCallum and Mr Freeman described the men standing outside the door as Caucasian; neither saw a Samoan at the door. Further, Mr Savona effectively conceded as much saying that he did not actually see the Samoan at any stage during the whole night, [42] and later saying in answer to the suggestion that he was not at the front door, “he wasn’t, but he was there.” [43]

    42. Tcpt, p 44(40).

    43. Tcpt, p 47(43).

  3. Relevant to the attempt to intimidate, and the second offence, was Mr Savona’s belief that one of the men was carrying a shotgun in a red bag. That evidence might have been considered speculative, but Mr Freeman expressly gave evidence that one of the men had a red bag and pulled out a sawn-off shotgun. Mr McCallum also saw the red bag.

  4. There was ample evidence on the basis of which the jury could convict the applicant of an attempt to break into and enter residential premises in order to intimidate the occupant.

  5. As to the second offence, Mr McCallum gave evidence that he saw the men leave the front door and go down a set of stairs that led to the car park at the back of the units. Very shortly thereafter he heard a bang that sounded like a gun. There is no doubt that a shotgun was fired through Mr Savona’s back window within 30 seconds to a minute after the men left the front door. The possibility that some other person with a shotgun had come to the premises in the meantime was implausible. The jury were entitled to conclude that the man who fired the shotgun was one of the three men at the front door, and that each of the men at the front door knew that the gun was available as a weapon of intimidation.

  6. The evidence therefore supported the inference that it was probably the man with the red bag who fired the gun. Although that was not the applicant, the fact that the gun had been revealed at the door suggested that the shooter was acting in the course of a joint criminal enterprise to intimidate Mr Savona, with the real possibility that the gun would be used for that purpose. The inference that the applicant was party to that criminal enterprise was sufficient to support the conviction.

  7. It may be noted that no complaint was made with respect to any aspect of the directions given by the trial judge, including the explanation of joint criminal enterprise. The judge also instructed the jury: [44]

“The defence case is that the accused was not present during the attempt to break into the apartment, and that the accused was not present when the shotgun was fired at the dwelling house.”

The evidence supported a finding that he was present on both occasions; the inference was well open that he knew that one of his colleagues had a shotgun; it was also open to infer that there was an understanding between the men as to what steps were to be taken, as they were taken.

44. Summing up, p 26.

  1. On the basis of my own consideration of the evidence, as recorded in the transcript, I see no reason why the jury should have entertained a reasonable doubt as to the guilt of the applicant on both counts. It follows that grounds 1 and 2 must be rejected and the appeal against the convictions must be dismissed.

Appeal against sentence

  1. judgment on sentence

  1. As noted above, the applicant was sentenced on 13 December 2019. After setting out the circumstances of the offending in terms which need not be repeated, the judge noted that count 1 carried a maximum penalty of 25 years imprisonment, with a standard non-parole period of 7 years. Count 2 carried a maximum penalty of 14 years, with a standard non-parole period of 5 years. He identified these as important guideposts in determining an appropriate penalty. [45]

    45. Sentencing judgment, 13/12/19, p 7.

  2. In considering the objective seriousness of count 1, he described the joint criminal enterprise as being developed “on the spur of the moment after the [applicant] had been denied entry.” The judge accepted that the applicant was not aggressive towards Mr Savona, but was one of three men who confronted the victim and attempted to gain entry. The attempt was however “momentary” and of short duration before the parties desisted. He identified the objective seriousness “at the low end of the scale.” He also noted that the serious indictable offence which was identified as the purpose of seeking entry carried a maximum penalty of 5 years and was itself not the most serious example of offending. [46]

    46. Sentencing judgment, p 8.

  3. With respect to count 2, the judge accepted that the applicant did not have possession of the shotgun, nor did he discharge it. The jury finding involved a determination that there was an agreement or arrangement, “not of long standing” between the offender and at least one other for the discharge of the firearm. The act itself, firing through a window into an apartment knowing that Mr Savona was within, was described as “extraordinarily dangerous.” The judge noted that with respect to Matthew Dixon, he had found that the conduct was in the mid-range of objective seriousness. However, that was on the basis that Dixon had fired the gun. He noted that he had approached the sentencing of Mr Dixon on the basis of an indicative individual sentence of 10 years, before discount, for the same offence. Having gone to trial, the applicant was not entitled to any discount. [47]

    47. Sentencing judgment, p 9.

  1. With respect to the personal circumstances of the offender, the judge noted that the offender’s case on sentence was limited to the tender of a letter from the offender’s mother, to whom he had professed his innocence. The offender declined to participate in the sentencing assessment, and did not give evidence. The judge noted that his reason for not giving evidence was, no doubt, concern not to prejudice his proposed appeal, but that left the judge with no material to demonstrate contrition or remorse.

  2. With respect to his criminal record, the judge noted that the offender had a lengthy record, including sentences for dishonesty, violence and break and enter. He stated that the record disentitled him to any leniency. [48] Although the judge did not rely upon it, the skeletal assessment which had been provided referred to seven institutional misconduct charges within the period of 21 months while he had been in custody.

    48. Sentencing judgment, p 10.

  3. Noting that the offender had been in custody on another matter, with a non-parole period of 13 months which expired on 4 March 2019, the judge nevertheless accepted the submission of his counsel that the sentence should be backdated to 2 January 2019. He declined to find special circumstances.

  4. Perhaps curiously, the judge imposed a single aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). There were only two offences and it was necessary for the judge to indicate the individual sentences which would have been imposed had he not imposed an aggregate sentence. As each carried a standard non-parole period, he was also required to identify the potential non-parole period which he would have imposed for each offence, which he did.

  5. The effect of taking this course was in part to reduce the transparency in sentencing, because it was not necessary to consider the extent to which one sentence should have been accumulated on the other. As it turned out, the form of sentencing gave rise to an additional problem.

  1. Sentencing error

  1. On count 1, the putative individual sentence was 2 years imprisonment, with a non-parole period of 18 months. On count 2, the putative individual sentence was 10 years, with a non-parole period of 6 years. The aggregate sentence in fact imposed was 11 years with a non-parole period of 8 years. It is apparent that an error was made in specifying the non-parole period. The period imposed was 6 months longer than the sum of the indicative non-parole periods. This error was the subject of ground 6,

  2. That error, which was conceded by the Director, required that this Court resentence the applicant. It is not a matter of simply correcting an arithmetical mistake, because it is by no means clear what non-parole period the judge intended to impose. On one view, he accumulated the 10-year sentence on count 2 on 1 year of the 2 year sentence on count 1 (giving a total sentence of 11 years). If a similar approach were taken to the non-parole periods (which is by no means necessarily appropriate) the effect might have been a non-parole period of 6 years 9 months. On the other hand, absent special circumstances, an aggregate sentence of 11 years might have been accompanied by a non-parole period of 8 years 3 months.

  3. There is, in any event, a further matter to be taken into account. The judge had regard to the sentence he had considered appropriate for Matthew Dixon, prior to reduction for a discount. Mr Dixon was sentenced on 20 September 2019, having entered pleas of guilty to four offences, including (i) using an offensive weapon with intent to commit an indictable offence (carrying a maximum penalty of 12 years), (ii) firing a firearm at a dwelling with disregard for safety (maximum penalty 14 years with a standard non-parole period of 5 years); (iii) possessing a shortened firearm (maximum penalty 14 years) and (iv) a second charge of possessing a shortened firearm, relating to a second weapon, a self-loading rifle, found in his possession. Mr Dixon was sentenced to an aggregate sentence of 11 years with a non-parole period of 7 years, the sentence before discount with respect to the common offence being 10 years, as in the case of the applicant. Importantly, however, the judge was satisfied beyond reasonable doubt that Mr Dixon fired the shotgun. He had been in possession of the shotgun and had threatened Mr Savona in his apartment six days before the offence in question.

  4. Mr Dixon had a number of subjective factors in his favour. The judge described him as having had “a terrible life, raised in a household surrounded by alcohol abuse and violence.” He gave “full weight” to his experience of “profound childhood deprivation”, while noting the inability of Mr Dixon to control his drug use and the commission of offences (for which he had a long record), factors which increased the importance of protecting the community.

  5. Mr Dixon appealed, successfully, from the sentencing judgment in relation to his offences. [49] The principal challenge was to the finding that Mr Dixon had actually discharged the shotgun. The agreed facts included a statement by Mr Freeman that he saw the tallest of the three men with the sawn-off shotgun: it was common ground that the tallest of the three men was the one who was not identified.

    49. Dixon v R [2020] NSWCCA 123.

  6. The Court also upheld a challenge to the finding as to the objective seriousness of the two further offences involving possession of a shortened firearm (with indicative sentences of 3 years in each case), concluding that it was too high. In each case it held that the objective seriousness fell below the mid-range found by the sentencing judge. It rejected a claim that the sentencing judge had not applied the Bugmy principles[50] based on a seriously deprived childhood

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

  7. The critical passage in the resentencing of Mr Dixon was as follows:

“[55]   Although being part of a joint criminal group responsible for the discharge of a firearm at a dwelling with reckless disregard for safety, is objectively serious, it is not as serious as being the member of such a group who actually discharged the firearm. Accordingly, that difference needs to be kept in mind on re-sentence. Similarly, the Bugmy considerations have to be taken into account but balanced against the inevitable risk to the public inherent in the applicant’s offending. Because there were four offences, considerations of accumulation and concurrency, together with totality, also have to be kept in mind. In this case, specific deterrence is important because of the applicant’s criminal record.

[56]   Despite the applicant not being identified as the shooter, I would still characterise the objective seriousness of this offending in respect of Count 2 as midrange, albeit not as serious as if he was the person who had discharged the shotgun. While general deterrence also has a part to play, the application of that principle needs to be tempered by the hardships surrounding the applicant’s early years.”

  1. In resentencing, the Court indicated that an individual sentence for count 2 (the common count) would have been 5 years 6 months with a non-parole period of 3 years 3 months. That equated to a starting point of 7 years 4 months prior to the 25% discount, being some 27% lower than the 10 year starting point adopted by the sentencing judge.

  2. Given that both the applicant and Mr Dixon had extensive criminal records, there was nevertheless a clear subjective case favouring Mr Dixon. On one view, equating the starting points with respect to Dixon and Zabakly suggested that the sentencing judge had not given effect to the Bugmy principles which he accepted applied with respect to Mr Dixon. However, this Court rejected that submission in Mr Dixon’s appeal. It appears that limited weight was given to the Bugmy principles on the basis that there was a need to protect the community, due to the inability of Mr Dixon to control his drug use and offending. (Arguably proper application of the Bugmy principles should have acknowledged that such an inability was itself a likely product of childhood deprivation.)

  3. In these circumstances, it is difficult to be sure how far this Court in Mr Dixon’s appeal took into account his personal considerations in determining the starting point for the calculation. The view favourable to the present applicant is that it was taken into account to only a limited extent, so that the starting point of 10 years for the same offence with respect to the applicant, also not shown to be the shooter, was too high.

  4. As both these grounds should be accepted, it is necessary to resentence the applicant. Ground 7 (relating to the appropriate offence) has been rejected; it is not necessary to consider whether the sentence is manifestly excessive, pursuant to ground 8.

  1. Resentencing

  1. For the purposes of resentencing, the applicant relied upon an affidavit dated 4 May 2021. The affidavit set out some of his personal circumstances and those of his family. None of this material was provided to the sentencing judge. By way of explanation, the applicant stated:

“At the time of my sentence proceedings, I was extremely disappointed with the verdict I received in the trial, withdrew into myself and did not give my lawyers appropriate assistance in order to put relevant subjective material before the court. The reason for that is because I was in shock and I felt completely hopeless when trying to picture a future for myself that didn’t involve me being in custody.”

  1. Counsel for the Director objected to the reading of the affidavit on the basis that it was an attempt by the applicant to have his case “recast on appeal when there was ample opportunity for that material to have been put before the Court.” [51] There was merit in the Director’s objection. The jury delivered its verdict on 31 May 2019. The sentencing proceedings commenced on 2 August 2019, but were adjourned to 20 September 2019. A sentencing assessment report was ordered and the matter was stoodover to 13 December 2019. The matter proceeded on that day; the applicant was represented at all times. Nevertheless, there did not appear to be anything controversial in the affidavit and counsel did not seek to cross-examine the applicant. In the circumstances, it is convenient to accept the affidavit and have regard to the limited assistance it provides when considering the appropriate sentences.

    51. Tcpt, 05/05/21, p 7(50).

  2. There was no direct challenge to the findings of the sentencing judge with respect to count 1. The judge found, appropriately, that the objective seriousness was “at the low end of the scale”. That may be accepted, but it does not follow that the sentence indicated for that offence was excessive. Although the judge found that the offending was undertaken on the spur of the moment after the applicant had been denied entry, it was the presence of three men, one carrying a sawn-off shotgun, whose intentions were to intimidate, suggests that it was only the precise response which occurred when the door was slammed shut that arose on the spur of the moment. Given the absence of any basis for leniency derived from the subjective circumstances of the applicant, the parameters of the sentence identified by the judge with respect to count 1 should be accepted. However, I propose to sentence for each offence separately: that means the non-parole period will be fixed in respect of the longer sentence for count 2. Accordingly, on count 1 there should be a fixed term equivalent to the non-parole period of 18 months.

  3. With respect to count 2, I accept the findings of the sentencing judge. Although he did not fire the weapon, the applicant was a party to an enterprise which involved carrying a sawn-off shotgun for the purposes of intimidation and, when entry was not gained, firing the shotgun through the window of the victim’s unit. As the sentencing judge stated, that act was extremely dangerous and warrants a significant sentence of imprisonment. The escalation of violence from kicking a door in an attempt to enter while carrying a shotgun, to discharging the shotgun into residential premises is significant. However, the finding that he did not fire the gun reduces the level of culpability below that of the shooter. For the reasons explained above, the personal circumstances of Mr Dixon warranted a lesser sentence for that offence than should be imposed on the applicant. While there is some explanation as to the applicant’s personal circumstances, as now revealed in his affidavit filed in this Court, they do not match those accepted in relation to Mr Dixon. In my view the appropriate sentence for that offence is 8 years.

  4. Subject to the effect of accumulating the second sentence on part of the first, I agree with the sentencing judge that there was no reason to make a finding of special circumstances in relation to the applicant.

  5. It is preferable to impose two separate sentences in order to consider transparently the appropriate element of concurrency. In effect, the attempted intimidation which was thwarted by the locked door, but was an element of the first count, was the same element as the intimidation effected by firing the gun through the rear window of the unit when entry was foiled. This was a single course of conduct carried out in a short period, perhaps in the order of five minutes, or less. I would accumulate the sentence for count 2 on half the fixed term for count 1, namely 9 months. The sentence on count 2 would therefore commence on 2 October 2019 and terminate on 1 October 2027. There should be a non-parole period of 6 years 8 months to commence on 2 January 2019 and expire on 1 September 2025.

  6. Accordingly, I propose the following orders:

  1. Grant the applicant leave to appeal against his convictions.

  2. Dismiss the appeal against the convictions.

  3. Grant the applicant leave to appeal against the aggregate sentence imposed on 13 December 2019 by the District Court.

  4. Allow the appeal against sentence and quash the sentence imposed in the District Court on 13 December 2019.

  5. In place thereof, resentence the applicant as follows:

  1. with respect to count 1, impose a fixed term of 18 months imprisonment commencing on 2 January 2019;

  2. with respect to count 2, impose a sentence of imprisonment of 8 years commencing on 2 October 2019 and terminating on 1 October 2027;

  3. fix a non-parole period of 6 years and 8 months to commence on 2 January 2019, expiring on 1 September 2025.

  1. The first date on which the applicant will be eligible for release on parole is 1 September 2025.

  1. As the resentencing is a minority view, orders (5) and (6) should be replaced by order (5) as proposed by Beech-Jones J.

  2. BRERETON JA: I have had the benefit of reading in draft the judgments to be delivered by Basten JA and Beech-Jones J. I agree with Basten JA that the conviction appeal should be dismissed, for the reasons given by his Honour. I also agree that, for the reasons given by his Honour, the sentence appeal should be allowed. I therefore agree with orders (1), (2), (3), and (4) proposed by Basten JA.

  3. As the sentence appeal succeeds, this Court is required to re-exercise the sentencing discretion afresh. For that purpose, like Basten JA and Beech-Jones J, I would admit the applicant’s affidavit read on the hearing of the appeal on the “usual basis”.

  4. I agree with Beech-Jones J that the imposition of an aggregate sentence does not involve any lesser transparency, particularly in respect of accumulation, than would two individual sentences: the extent of accumulation and concurrency can be ascertained from the indicative sentences and the aggregated sentence, as well as if separate sentences had been imposed.

  5. In respect of count 1 (attempting to break and enter a dwelling house to commit a serious indictable offence, in circumstances of special aggravation), I agree with their Honours that a fixed term of eighteen months’ imprisonment is appropriate.

  6. In respect of count 2 (firing a firearm at a dwelling house with reckless disregard for the safety of any person), I note the statutory guideposts of a maximum penalty of fourteen years, and a standard non-parole period of five years. The sentencing judge, who accepted that the applicant neither had possession of the shotgun nor discharged it, but was convicted on the basis of joint criminal enterprise, arising from an agreement or arrangement “not of long standing” between him and at least one other offender for the discharge of the firearm, observed that he had found the offence on the part of the co-offender Matthew Dixon to be in the mid-range of objective seriousness, on the basis that Dixon had fired the gun. It follows that the objective seriousness of the offence on the part of the applicant, who was guilty on the basis of joint criminal enterprise, was of a lower order.

  7. In resentencing Dixon, on the basis that he had not discharged the firearm, this Court said:[52]

“Despite the applicant not being identified as the shooter, I would still characterise the objective seriousness of this offending in respect of Count 2 as midrange, albeit not as serious as if he was the person who had discharged the shotgun.”

52. Dixon v R [2020] NSWCCA 123 at [56] (Hoeben CJ at CL; Harrison J and Beech-Jones J agreeing) (“Dixon”).

  1. The Court indicated that, for Dixon, an individual sentence for count 2 would have been five years and six months, with a non-parole period of three years and three months, which implies a starting point of seven years and four months (and non-parole period of four years and four months) prior to the 25% discount for Dixon’s plea of guilty, [53] to which the applicant, who went to trial, is not entitled. The ratio of the non-parole period to the head sentence appears to reflect the unexpressed adoption of the sentencing judge’s finding of special circumstances, based on Dixon’s need for assistance in reintegrating with the community, and to deal with the risk of institutionalisation; there was no corresponding finding in the applicant’s case.

    53. Dixon at [54], [58] (Hoeben CJ at CL; Harrison J and Beech-Jones J agreeing).

  2. There is no basis for concluding that the applicant’s offending was objectively any more serious than Dixon’s. In other words, the applicant’s offending was not above the mid-range. While its gravity is elevated by the applicant’s knowledge that the victim was in the dwelling house, it is moderated by the circumstances that his liability is on the basis that he did not discharge the firearm, but was party to an agreement or arrangement, “not of long standing”, with one or more others for the discharge of the firearm. My conclusion is that it was slightly below mid-range. That conclusion has significance, because the statutory guidepost of the standard non-parole period of five years represents the non-parole period for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness – before regard is had to subjective considerations relevant to the particular offender (including any discount for a plea of guilty). [54]

    54. Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A.

  3. As to subjective considerations, the applicant is aged 27. As a result of the affidavit evidence admitted for the purpose of the re-exercise of the sentencing discretion, there is before this Court, though there was not before the sentencing judge, some material that establishes that the applicant had a difficult background: his mother used heroin; his father died when he was aged 15; his mother then relocated from New South Wales to Queensland; and for two years he was homeless and “slept on friends’ couches”. To some extent this weighs in his favour as a subjective factor, although, as Beech-Jones J observes, it does not involve such a degree of social disadvantage as to engage the principles stated in Bugmy v The Queen. [55]

    55. (2013) 249 CLR 571 at 594-595 [43]-[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37 (“Bugmy”).

  1. My conclusion that the offence was objectively slightly below mid-range, and that there are slight subjective considerations favouring the applicant, suggest that a non-parole period of four years and nine months, and an additional term of one year and seven months, producing a total sentence of six years and four months, is appropriate for count 2. The non-parole period is less than the standard non-parole period of five years because the offence is (albeit slightly) below mid-range, and because of the (albeit slight) subjective considerations.

  2. For the purposes of parity, that is to be compared with the indicative starting point (pre-discount for plea of guilty) in Dixon’s case of seven years and four months and non-parole period of four years and four months. Differences in the subjective cases mean that reference to Dixon for the purposes of parity requires caution. Parity in sentencing in any event does not require equivalence, but avoidance of such disparity as would give rise to a justifiable sense of grievance; and there will not be a justifiable sense of grievance if there is good reason for disparity in the sentences. Thus while there are some subjective factors tending slightly in the applicant’s favour, unlike Dixon he cannot invoke Bugmy; on the other hand, he was significantly younger, and while both had records disentitling them to leniency, Dixon’s was worse. Perhaps most significantly, while “special circumstances” were found in Dixon’s case, it has not been suggested that they are to be found in the applicant’s. The non-parole period in Dixon’s case is appropriately shorter than that which I am considering for the applicant, given his Bugmy case. The longer head sentence is the result of the finding of special circumstances, which are not applicable in the applicant’s case. Complete reconciliation of the various sentences and non-parole periods may not be possible, but I do not think that the differences are such as would found a justifiable sense of grievance.

  3. Finally, there remain the questions of totality, concurrency, and accumulation. While I accept that there must be some accumulation to recognise the separate criminality of count 1, the two counts were elements of a single course of conduct over a period of several minutes, or less. Only a modest accumulation is required.

  4. Thus, were I sentencing the applicant, I would impose an aggregate sentence of seven years’ imprisonment to commence on 2 January 2019 and expire on 1 January 2026, and specify a non-parole period of five years and three months, expiring on 1 April 2024. I would indicate that the separate sentences that I would have imposed for each offence are, for count 1, a fixed term of imprisonment for eighteen months; and for count 2, imprisonment for six years and four months with a non-parole period of four years and nine months.

  5. However, were the matter to stand there, there would be no majority in this Court. In order to avoid that consequence, and because the order his Honour proposes most closely approaches the position that I favour, I agree with order (5) proposed by Beech-Jones J.

  6. BEECH-JONES J: I have read the judgment of Basten JA. I agree with his Honour’s reasons for rejecting the conviction appeal. Further, save for three matters that affect my assessment of the appropriate sentence, I agree with his Honour’s reasons in relation to the sentence appeal.

  7. First, at the hearing of the application for leave to appeal, an affidavit from the applicant was sought to be read [56] on the so‑called “usual basis”, namely, as admissible and relevant if the Court proceeded to re-exercise its sentencing discretion (Betts v The Queen [2016] HCA 25; 258 CLR 420 at [2]; “Betts”).

    56. T 05/05/2021 p 7

  8. In his affidavit, the applicant explained that his father migrated from Jordan. The applicant was born in Australia in 1990. He left school in year 8. His father passed away when he was 15 and his mother relocated from New South Wales to Queensland. He said that his mother used heroin until his father died. He said that, for the two‑year period after his father died and his mother relocated, he was homeless and “slept on friends couches”. He had two relationships prior to being arrested for this offence and worked for about a year in 2008. He accepts that his prison record is poor but states that he is now religious. He states that at the time of sentencing “I felt like my life was over” but states that he does not now believe that to be the case.

  9. The Crown objected to the reading of the affidavit on the basis that, in effect, the applicant is seeking to “run a new and different [subjective] case” on appeal (Betts at [2]). The Crown pointed out that, prior to sentencing, the applicant refused to participate in an interview necessary for the preparation of a presentence report. That is true, but at the sentencing hearing an application was made for an adjournment to obtain material concerning the applicant’s “background”. [57] The application was refused, and the hearing proceeded. In the sentencing judgment his Honour noted that, apart from a letter from the applicant’s mother, “I have nothing else to assist me as to the subjective features of the offender”. [58]

    57. AB 324.22

    58. AB 340.6

  10. In Betts, this Court’s refusal on resentence to consider a psychiatrist’s report suggesting a causal link between the applicant’s drug use and his offending, was held by the High Court not to have occasioned a miscarriage of justice. At the sentencing hearing there was a lack of evidence explaining why he offended but his counsel submitted that a “possible explanation” was his prolonged exposure to serious domestic violence during his youth (at [39]). The sentencing judge rejected that contention (at [41]). The High Court concluded that the applicant had made a “forensic choice” during the sentencing hearing to not contend that his ingestion of drugs had significantly contributed to his offending and had decided to accept responsibility for his offences (at [59]).

  11. Given the application that was made to the sentencing judge, I do not accept that a forensic choice was made on behalf of the applicant to deliberately not raise any part of his upbringing and background at first instance. Unlike Betts, the sentencing judge’s “finding” was more of an observation on the lack of evidence on that topic, a consequence that followed from the refusal of the adjournment application. In putting evidence before this Court as to his background, the applicant is not seeking to run a new and different case. Instead, he is seeking to run the case he (belatedly) sought to run at first instance but was not allowed to. I would admit the evidence.

  12. All that said, the material set out in the applicant’s affidavit does not advance his case on resentencing very far. His background was difficult. The death of his father and his mother’s heroin addiction did not bode well for his future prospects. However, he has not demonstrated a degree of social disadvantage that engages the principles stated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”).

  13. Second, I do not accept that any lesser transparency resulted from the sentencing judge imposing an aggregate sentence for two offences in this case. If a sentencing judge imposes an aggregate sentence for two offences, then the extent of accumulation and concurrency can be ascertained to the same degree as if separate sentences were imposed.

  14. Third, I do not consider that there is any reason to revisit the rejection of one of the grounds of appeal in Dixon v R [2020] NSWCCA 123 (“Dixon”) and do not consider there is any difficulty in applying the outcome and reasoning in that case for parity purposes. As at the date of the commission of the offence, Mr Dixon was 34 years and six months old whereas the applicant was just under 27 years of age. The applicant’s criminal record was very poor, but Mr Dixon’s was worse. He had far more convictions for violence and had barely been out of custody in the previous decade. Many of the applicant’s convictions in the previous few years were for dishonesty offences. On the other hand, while the applicant’s upbringing was difficult, as noted in Dixon and by Basten JA, Mr Dixon had an upbringing that engaged Bugmy principles.

  15. As in Dixon, I would impose an aggregate sentence. For count 1, I would indicate a sentence of the same length proposed by Basten JA, namely a fixed term of 18 months. In respect of count 2, I would specify the same pre‑discounted indicative sentence stated by this Court for that offence in Dixon, namely, 7 years and 4 months with a non-parole period of 5 years 6 months. I would impose an aggregate sentence of 8 years with a non-parole period of 6 years.

  16. Accordingly, I agree with orders (1) to (4) proposed by Basten JA but would propose the following order in lieu of orders (5) and (6) as proposed by his Honour:

  1. In place thereof:

(a)   impose an aggregate sentence of 8 years imprisonment to commence on 2 January 2019 and expire on 1 January 2027;

(b) pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act1999 set a non-parole period of 6 years;

(c)   specify that the earliest date the applicant will be eligible to be released on parole is 1 January 2025;

(d) pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, record that an aggregate sentence is imposed and indicate to the applicant that the sentences that would have been imposed for each offence under separate sentences instead of an aggregate sentence are as follows:

Count 1 – fixed term of imprisonment for 18 months.

Count 2 – imprisonment for 7 years and 4 months imprisonment with a non-parole period of 5 years 6 months.

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Endnotes

Decision last updated: 12 July 2021

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R v Doyle [2021] NSWDC 499
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R v Farrell [2024] NSWDC 559
R v Doyle [2021] NSWDC 499
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Betts v The Queen [2016] HCA 25
Bugmy v The Queen [2013] HCA 37
Bugmy v The Queen [2013] HCA 37