Dent v R

1. [1]

   BASTEN AJA: The applicant, Christopher Dent, sought leave to appeal from a sentence imposed on him in the District Court for one count of recklessly causing grievous bodily harm. I agree with Weinstein J that there should be a grant of leave to appeal, but that the appeal should be dismissed.

2. [2]

   There were two grounds of appeal. The first concerned the operation of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Act). Ground 1 challenged the finding by the sentencing judge that the aggravating factor identified in s 21A(2)(i) (“the offence was committed without regard for public safety”) was engaged. Ground 2 alleged that the sentence was manifestly excessive. As to ground 1, for the reasons given below, there was no breach of procedural fairness. I agree with the reasons given by Weinstein J in relation to ground 2.

3. [3]

   The first ground had both an objective and a procedural basis. The objective basis was that the evidence did not support such a finding; the procedural challenge alleged that there had been procedural unfairness in considering the engagement of the aggravating factor. It is convenient to deal first with the objective basis of the finding.

4. [4]

   Whether the applicant acted without regard for public safety was a question of fact. It is not necessary for present purposes to embark on the debate as to whether it is sufficient for the applicant to establish that the finding was erroneous (that is, the judge “mistakes the facts” [1] ), or whether the applicant must go further and establish that it was not open to the sentencing judge to make such a finding. [2] That is because the finding was correct. The circumstances fell squarely within the reasoning of Bell J in R v Saleib [3] set out by Weinstein J below at [73].

5. [5]

   The fact that the assault may be viewed as a single blow directed to a single victim is immaterial. The conduct of the applicant prior to the attack was apt to make members of the public apprehensive; the attack could have led to intervention by another member of the public with potentially serious results, or, if witnessed, a level of panic amongst customers in the shop. It could have led to intervention by a security guard with accompanying risks posed to the applicant and to bystanders.

6. [6]

   That there was a risk to public safety was an objective circumstance which was undoubtedly satisfied in the present case. The applicant clearly had no regard for the risk, being intent upon inflicting serious bodily harm on some member of the public, selected at random.

7. [7]

   The second aspect of the challenge was that the trial judge erred in making such a finding without forewarning the applicant. The failure to do so was said to constitute procedural unfairness, thus invalidating the sentencing procedure and the outcome. That proposition must be rejected, for the reasons which follow.

8. [8]

   The function of a sentencing judge is to assess the evidence presented by the parties, make findings on the appropriate standard of proof in relation to disputed matters, and consider what weight is to be given to the facts as agreed or found in determining the appropriate sentence. In undertaking that function, procedural fairness does not require that the judge discuss with the parties each of the factors which may ultimately form a part of the reasoning in the judgment and how it might be approached. It is not necessary for a judge to provide the parties with a draft judgment before making orders. The primary obligation of procedural fairness at a sentencing hearing is to ensure that both parties are given an adequate opportunity to present their respective cases.

9. [9]

   A judicial proceeding is not like an administrative proceeding where the decision-maker may have access to material of which an applicant is unaware. In that case it may be necessary for the decision-maker to draw the attention of the applicant to any such material, if it is likely to form a basis for an adverse decision. Occasionally a similar problem may arise in respect of judicial proceedings where, for example, the court has become aware of a binding authority, not identified by the parties, which may guide the outcome.

10. [10]

    Similarly, if the judge proposes to use circumstances which were addressed in the course of the hearing, but in a manner adversely to the applicant which could not reasonably have been anticipated, or adopt a course sought by neither party and not reasonably foreseeable, it will usually be necessary, as a condition of procedural fairness, to draw that matter or course of reasoning to the attention of the affected party. [4]

11. [11]

    In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah, [5] the decision-maker, in dealing with an application for a protection visa, had relied on the recent election of a new government in Bangladesh as removing the prosecutor’s well-founded fear of persecution in his country of origin. McHugh J observed:

12. [12]

    It may be said that, ever since the canonical statement of fundamental principles of procedural fairness in 1985 in Kioa v West, it has been evident that the obligation of procedural fairness focuses upon a lack of opportunity to respond to adverse material which may be relied upon by a decision-maker. That which is obvious does not engage that principle, because the need to respond is patent.

13. [13]

    Prior to the enactment of the Sentencing Act, and in particular the commencement on 1 February 2003 of s 21A, there could have been little doubt that a sentencing judge would be entitled to take into account, in a case such as the present, all the circumstances surrounding the offending, including possible risks to public safety. The primary purpose of s 21A was to provide a degree of transparency by setting out the main aggravating and mitigating circumstances to be considered in sentencing an offender. The lists of factors were not exclusive, nor would they necessarily lead to an increase or reduction of the sentence: s 21A(4) and (5) respectively. One practical consequence was to complicate the sentencing process, although arguably with beneficial results. Thus, the early cases stated the obligation of a sentencing judge in terms of prudence and fairness in the sense of good common sense, rather than matters which might invalidate the sentencing process. In R v Tadrosse, [7] Howie J stated:

14. [14]

    The Court intervened in Tadrosse on the basis that the sentencing judge had failed to give reasons for relying on certain aggravating features which he determined were present and this Court considered were not established or not relevantly matters of aggravation. Principles of procedural fairness were not discussed; the passing reference to “fairness” was not to established legal principles.

15. [15]

    There may be procedural unfairness in special cases where either an opponent expressly disclaims reliance on a potentially relevant consideration, or the tribunal itself intervenes to discourage a submission as unnecessary, but then places reliance on the subject of the abandoned submission. [8] Thus, in Stokes v R, [9] this Court intervened in circumstances where the prosecutor had expressly stated that, “[i]n relation to s 21A(2) there are no aggravating features I put before you”. [10] In sentencing, the judge took into account a significant aggravating factor in s 21A(2)(n), namely that “the offence was part of a planned or criminal activity.” With respect to the supply of drugs, there was an obvious question as to whether the offender’s activities involved planning and organisation beyond what might normally be expected with respect to such an offence. (The Court ultimately held that it did.)

16. [16]

    The express denial by the prosecutor of reliance on an equivocal factor, which was instrumental in the offender not making submissions with respect to that matter, was not present in the present case. The relevant circumstances were expressly relied on, the prosecutor stating in written submissions:

17. [17]

    Nor is the essential element of materiality to be determined by this Court finding that no lesser sentence was warranted. Rather, the question, if reached, is whether the applicant lost a realistic possibility of a more favourable outcome. [11]

18. [18]

    If there were procedural unfairness in failing to give the applicant an opportunity to deal with public safety, there can be no doubt that the error was material. That factor being a significant aspect of the circumstances of the offending, it is not possible to say that, absent reliance on that factor, the resulting sentence would have been the same: if the attack had not occurred in a public place where members of the public were present, the sentence might have been lower. Broadly speaking, if no different outcome were realistically possible, there would be no reason to grant leave to appeal.

19. [19]

    However, in my view the ground is not made out. The circumstances of the offending which created a risk to the public were both self-evident and obviously relevant. It was not an essential element of the offence that public safety be put at risk. The fact that the prosecutor’s submissions did not focus on the precise paragraph in the Sentencing Act which identified this as a potential aggravating circumstance was immaterial. The issue was obvious; the judge did not use it in a way which could not reasonably have been anticipated by the applicant, and the applicant had every opportunity to address the circumstances of his offending. Unsurprisingly, both his evidence and his submissions conceded the “appalling” nature of the offending and focussed on subjective matters.

20. [20]

    There was no unfairness in failing to inform the applicant that the place and time of the offending might be taken into account on sentence, as involving disregard of public safety.

21. [21]

    I agree with the reasons of Weinstein J for rejecting this ground. Two further observations may be noted. First, the objective seriousness of the offending was not lessened by the fact that it had no rational motive and was the product of a drug-induced state of mind. The Court does not inquire into whether some identifiable aspect of the offender’s social circumstances or genetic history have led to the excessive use of illegal drugs.

22. [22]

    Secondly, the focus of the applicant’s case was a failure to give sufficient weight to his social history of deprivation and disadvantaged upbringing, including physical abuse. Weight was critical, because the sentencing judge accepted the evidence and expressly took it into account.

23. [23]

    However, a complaint about “weight” is an unpromising basis for demonstrating error. The weight given to different factors in the sentencing exercise does not fall within any of the particular grounds of intervention identified in House v The King; it can only invoke the final ground which is that the sentence itself demonstrates that “there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. [12] However, it was not demonstrated in the present case that the sentence imposed was beyond a reasonably available range.

24. [24]

    McNAUGHTON J: I agree with Weinstein J.

25. [25]

    WEINSTEIN J: The applicant, Christopher Dent, pleaded guilty to one count of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW), following an unprovoked attack at a Bunnings Warehouse store (“the store”) in South Penrith on 11 March 2022. He was sentenced on 9 July 2024 in the District Court by his Honour Judge Everson SC (“the sentencing judge”) who imposed a sentence of imprisonment of five years and four months with a non-parole period of four years, after allowing for a discount of 10% for the applicant’s plea of guilty.

Introduction

1. [26]

   The applicant seeks leave to appeal against his sentence pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW). Should leave be granted, he relies on two grounds of appeal:-

   1. (1)

      That the learned sentencing judge erred in finding, as a statutory aggravating factor, that the offence was committed without regard for public safety; and

   2. (2)

      That the sentence imposed was manifestly excessive both with respect to the minimum and maximum terms.

2. [27]

   In my opinion, leave to appeal should be granted, but the appeal should be dismissed for the reasons that follow.

The Sentencing Judgment

1. [28]

   An agreed statement of facts was tendered as part of Exhibit A on sentence, which his Honour distilled. The following summary is taken from the exhibit and his Honour’s judgment.

2. [29]

   On the afternoon of 10 March 2022, police responded to a report that a person was behaving erratically and walking in front of cars in Cranebrook in a tracksuit and socks. When the police arrived, they located the applicant on a nearby grass strip. An emergency mental health clinician attended to assess the applicant who said that he had consumed ice two days earlier. The clinician formed the view that the applicant was drug-affected, and therefore ineligible to be scheduled pursuant to the provisions of the Mental Health Act 2007 (NSW). The police therefore conveyed the applicant to a person known to him so that he could be driven home.

3. [30]

   On 11 March 2022, the applicant went to the store in South Penrith. The sentencing judge observed that the store was about 17km from the applicant’s home address in Cranebrook. His Honour also observed that “[a]t that time Mr Dent was either still, or again, under the influence of the drug methylamphetamine and possibly some other drugs too”.

4. [31]

   The applicant first entered the store at 7:17 am. At 7:48 am the applicant sat down on a yellow safety step in the tool shop, where he remained until 7:54 am. The applicant then stood up and picked up a spanner from a shelf. An employee approached the applicant and asked him if he was okay. The applicant did not respond. The applicant walked away with the spanner, before returning at 7:56 am when he placed the spanner back where he had found it.

5. [32]

   At 8:04 am, the applicant was captured on CCTV carrying a crowbar towards an information desk. The applicant placed the crowbar on the information desk, and then proceeded to exit the store. As the applicant walked past, the employee who had spoken to him earlier again asked him if he was okay. The applicant said something in response, but the employee could not hear what he said.

6. [33]

   At 8.27 am the applicant re-entered the store wearing sunglasses. A few minutes later, at 8.29 am, he was captured on CCTV holding an axe. He walked up the main aisle towards the garden centre before turning around and walking back in the direction from where he had just come.

7. [34]

   At 8:30 am the victim and his wife entered the store. They walked down one of the aisles, and the victim stopped to examine an item. The applicant, still carrying the axe, approached the victim from behind and, without warning, swung the axe at the back of the victim’s head. The axe connected with the victim’s head, and the victim fell to the ground and briefly lost consciousness. The blow opened up a large wound. A nearby employee described hearing the sound of a “loud crack” and turned to see the victim’s wife rushing to assist him, and the applicant walking away down the aisle with the axe in his right hand. Once the applicant reached the end of the aisle, the employee saw him turn and look back towards the victim with a blank stare on his face.

8. [35]

   At 8:30 am the applicant was captured on CCTV exiting the store. He left the axe on top of some trolleys on his way out.

9. [36]

   Shortly after leaving the store, the applicant attempted to cross the nearby Western Motorway on foot. A bystander described hearing car horns and seeing the applicant in the middle of the road, jumping in front of cars. Police attended the scene in response to a welfare concern call and located the applicant. The applicant’s identity was established. Unaware of what had just occurred at the store, police drove the applicant back to his home address in Cranebrook.

10. [37]

    The victim was taken to Nepean Hospital. Police visited him and his wife in hospital at about 11:00 am. Police then attended the store where they found the axe. The applicant’s fingerprints were located on the axe head edge adjacent to the handle.

11. [38]

    Police attended the applicant’s home at 12:10 pm and arrested him. They observed that the applicant was confused and disoriented, and they formed the view that he was under the influence of drugs or alcohol. The applicant was recorded on body-worn video telling police that he had woken up that morning in a carpark. The applicant said that his partner had been telling him that he was paranoid, and that the applicant had been bashed that afternoon, but could not say by whom.

12. [39]

    The applicant was later formally interviewed by police. He said that he was high on ice, that he had taken the ice a few days earlier and that it must have been “laced” with something, because it had had a totally different effect than it usually did and had caused him to be paranoid for three days. He agreed that he had been at the store but said that he could not recall what had occurred there.

13. [40]

    The victim suffered a number of serious immediate and lasting injuries, which were described in the agreed facts and summarised by the sentencing judge in his reasons on sentence.

14. [41]

    The victim sustained a 3cm laceration to the right side of the back of his head, which extended into the dermal layer of his skin. The surrounding area was bruised and tender following the attack. At the hospital, a CT scan did not show skull fractures or bleeding to the brain, but the victim displayed symptoms of concussion including dizziness. Sutures were applied and he was given pain relief.

15. [42]

    Three days after the attack, the victim attended his general practitioner complaining of headaches, dizziness and constant ringing in his ears. In April 2022 he was diagnosed with hearing loss in both ears. He was provided with hearing aids, but he found that they amplified the ringing noise whenever he was outside. In May 2022, an ear, nose and throat specialist confirmed that the victim had suffered permanent bilateral hearing loss with balance disturbance as a result of the blow to his head.

16. [43]

    The victim also suffered from anxiety following the attack, for which he saw a psychologist. He was subsequently diagnosed with post-traumatic stress disorder on 12 May 2022. A neurologist advised on 16 May 2022 that the victim was suffering from post-concussion syndrome. The victim began seeing an occupational therapist in June 2022 for assistance with memory loss and imbalance, and he was referred to the Brain Unit at Westmead Hospital thereafter.

17. [44]

    By January 2023, the victim was receiving treatment for depression, anxiety and tinnitus. He was no longer able to work as a forklift driver due to the tinnitus which interfered with his sleep and concentration. He had difficulties understanding speech when there was background noise. He also experienced disturbed balance and light-headedness whenever he stood up after lying down or sitting. In September 2023, the victim was assessed by an independent doctor who was of the opinion that he was suffering permanent bilateral hearing loss, tinnitus, and disturbance of balance, all caused by the assault.

18. [45]

    The final paragraph of the agreed statement of facts states:-

19. [46]

    In assessing the objective seriousness of the offence, the sentencing judge began by acknowledging the legislative guideposts of the maximum penalty of 10 years imprisonment and the standard non-parole period of 4 years imprisonment. He observed that the victim was attacked without provocation or warning and that he could not determine the precise motivation for the offence beyond finding that “it was most likely the product of the offender’s drug fuelled distorted perception of reality”. His Honour correctly noted that it was unhelpful to determine the objective seriousness by fixing it on a notional range, but rather the correct approach was to identify the objective factors which informed the seriousness of the offending.

20. [47]

    His Honour found that the circumstances of the offending engaged the following statutory aggravating factors in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”), which he found proved beyond reasonable doubt:-

    1. (1)

       The injury, emotional harm, loss or damage caused by the offence was substantial (a reference to s 21A(2)(g)); and

    2. (2)

       The offence involved the actual use or threatened use of a weapon (a reference to s 21A(2)(c)); and

    3. (3)

       The offence involved a grave risk of death to a person or another person (a reference to s 21A(2)(b)); and

    4. (4)

       The offence was committed without regard for public safety (a reference to s 21A(2)(i)), “given that the offence occurred within retail premises in which there were staff and customers”.

21. [48]

    The sentencing judge did not find, beyond reasonable doubt, that the offending was part of a planned or organised criminal activity (a reference to s 21A(2)(n)), but his Honour also did not find, on the balance of probabilities, that it was not part of a planned or organised criminal activity (a reference to s 21A(3)(b)). Rather, his Honour said:

22. [49]

    The sentencing judge did not accept a submission that there was a causal connection between the applicant’s pre-existing mental ill health and his offending. His Honour found that the self-induced intoxication of the applicant was the sole material contributor to the commission of the offence. His Honour found that, while the applicant’s drug use might provide an explanation for his actions, it could not be a mitigating factor in accordance with the statutory prohibition contained in s 21A(5AA) of the Sentencing Act.

23. [50]

    The sentencing judge noted the applicant’s acceptance of responsibility for his actions and his remorse, his abstinence from illegal drugs while on bail, his lack of prior criminal convictions and his strong character references, all of which supported a finding that his prospects of rehabilitation were “quite good”. His Honour acknowledged that the applicant had already spent 174 days in pre-sentence custody following his arrest, and that he had been on strict bail conditions for almost two years. The applicant’s guilty plea attracted a discount of 10%.

24. [51]

    The sentencing judge considered the evidence of the applicant’s deprived background. The applicant’s early life and commencement of drug use was described as follows:-

25. [52]

    The sentencing judge found that the Bugmy principles were engaged, referring to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. However, his Honour considered that whilst the offence committed by the applicant did not involve the type of sophisticated and careful planning associated with the cultivation, manufacture or supply of prohibited drugs, neither was it entirely impulsive, as it involved a measure of planning in view of the applicant’s behaviour immediately before the attack in selecting a spanner, then a crowbar, and finally the axe that he used to strike the victim.

26. [53]

    Overall, with respect to the applicant’s subjective case and moral culpability, the sentencing judge concluded that:

27. [54]

    The sentencing judge concluded that no mitigation flowed from any delay which had advantaged the applicant, in the sense that he could point to “post-offence crime free time” which positively influenced the assessment of his prospects of rehabilitation. The sentencing judge considered that each purpose of sentencing in s 3A of the Sentencing Act was engaged, with general and specific deterrence taking on particular significance given the attack’s unprovoked nature.

28. [55]

    The sentencing judge did not find special circumstances, finding that one year was sufficient to assist the offender to re-adjust to life in the community upon his release. By that, his Honour meant to say one year and four months, as was reflected in the sentence he imposed.

Ground 1 – “Without regard for public safety”

1. [56]

   The applicant’s first ground of appeal is that the sentencing judge erred in finding, as a statutory aggravating factor pursuant to s 21A(2)(i), that the offence was committed without regard for public safety. The sentencing judge’s conclusion to that effect is found in his Honour’s reasons under the heading “Aggravating and Mitigating Factors” and reads, in context, as follows:-

2. [57]

   The applicant pursued this ground of appeal in two ways. First, the applicant submitted that, in view of the way that the matter unfolded before the sentencing judge, the applicant was not put on notice about the prospect of his Honour finding that the aggravating factor applied, and that it was therefore procedurally unfair for the sentencing judge to make the finding.

3. [58]

   Second, the applicant says that in any event it was not open to the sentencing judge to make the finding on the evidence, because on the facts of this case it could not be established beyond a reasonable doubt that the offence had been committed without regard for public safety.

4. [59]

   The applicant’s submission on procedural fairness is predicated on this Court’s acceptance of three propositions regarding the course of the sentence hearing. First, the applicant says that the sentencing judge did not raise the prospect of making the finding during the hearing on 4 July 2024, or on 9 July 2024 before his Honour delivered his judgment. Second, it was submitted that there was no concession by the applicant before his Honour that the offence had been committed without regard for public safety. Third, the Crown did not make a submission at first instance, either orally or in writing, that the aggravating factor should be found.

5. [60]

   The applicant submitted that, in circumstances where the finding was made without notice, without a concession by the applicant, and without the Crown having pursued such a finding, it created an unfairness to the applicant who had no opportunity to address his Honour about whether the aggravating factor should be considered or could be proved beyond reasonable doubt. It was submitted that, by contrast, the sentencing judge did raise the potential application of other statutory aggravating factors during the hearing, such as whether the offence had been planned, and to which the applicant had the opportunity to respond.

6. [61]

   The Crown accepted that it is settled law that a party to criminal proceedings, including proceedings on sentence, is entitled to procedural fairness. In Weir v R [2011] NSWCCA 123, Garling J (with whom McFarlan JA and Johnson J agreed) observed at [64]-[67]:-

7. [62]

   The Crown conceded that neither party in the instant case specifically referred to s 21A(2)(i) in written or oral submissions. However, the Crown submitted that in written submissions on sentence, it did raise the issue of public safety more generally, as part of its submission under the heading “Objective seriousness” and the sub-heading “Other circumstances attending the offender’s assault on the victim”. The Crown submitted that, while the submissions did not explicitly refer to s 21A(2)(i), they did refer to the attack happening in broad daylight on an innocent civilian going about his business. That document at [13] said:-

8. [63]

   The Crown submitted that the applicant was therefore on notice that the Crown was making a submission that the objective seriousness was aggravated by reason of the offence being randomly committed in a public area of a store on an unsuspecting member of the public. The Crown observed that the applicant’s legal representative had effectively conceded that the attack was “indiscriminate”, during an exchange with his Honour about planning, when she said: “Why not his wife? I’m sure there were many people in Bunnings that were on their own. Often, many people [are] on their own in Bunnings.”

9. [64]

   Accordingly, the Crown submitted that the applicant was, or should have been alive to a Crown submission that the objective seriousness of the offence was aggravated by reason of the offence being committed in a public area of a store on an unsuspecting member of the public; ie without regard for public safety.

10. [65]

    The Crown submitted that, in any event, the question of the applicant’s lack of regard for public safety was a matter that pursuant to s 21A(1)(c) of the Sentencing Act, the Court was required to take into account as “any other… factor that affects the relative seriousness of the offence”.

11. [66]

    Further, the Crown submitted that if there was any procedural irregularity in the assessment of the objective seriousness of the offending, then it was immaterial. Reliance was placed on Smith v R [2024] NSWCCA 59, where Basten AJA (Adamson JA and Wilson J agreeing with additional reasons) said at [42]-[44]:-

12. [67]

    The Crown submitted that, although s 21A(2)(i) was not precisely raised, it was inevitable that, had it been raised, a finding that the offence was committed without regard to public safety would have been made. Thus, in the Crown’s submission, the applicant’s procedural fairness argument fails on the ground of materiality, as there was no practical injustice to the applicant.

13. [68]

    The second way in which the applicant argues this ground of appeal is that, on the facts of this case, a finding that the offence was committed without regard for public safety could never have been made beyond reasonable doubt.

14. [69]

    The applicant referred to the judgment of Wilson J in Wong v R [2018] NSWCCA 263 (Leeming JA and Walton J agreeing) with respect to the application of the statutory aggravating factors of “committed without regard for public safety” and “part of a planned or organised criminal activity”, where her Honour said at [61]:-

15. [70]

    The applicant also referred to the comments of Simpson J (as her Honour then was) in R v Chisari [2006] NSWCCA 19 at [28] (Beazley JA and Rothman J agreeing), where her Honour said that “s 21A(2)(i) is directed not to the specific victim of any offence, but to the danger caused to other members of the public by reason of the offence”.

16. [71]

    The applicant submitted that, in this case, the voluntary acts which gave rise to the victim’s injuries and which made out the elements of the offence, involved only a risk to the victim. The applicant conceded that his conduct was appalling, dangerous and caused very serious harm to the victim but he submitted that it “was not of its nature to be also regarded as having been committed without regard for public safety”.

17. [72]

    In the applicant’s submission, the mere fact that a personal violence offence occurs in a public space in front of another person is not equivalent to a finding that the offence was committed without regard for public safety. He submitted that the words used in s 21A(2)(i) of “committed without regard for public safety” should not be equated with the words “having occurred in public and in front of other people”, which he says was how the sentencing judge reasoned in this case in finding that s 21A(2)(i) applied because “the offence occurred within retail premises in which there were staff and customers”.

18. [73]

    The Crown submitted that his Honour’s finding with respect to s 21A(2)(i) involved neither legal nor factual error. The Crown referred to R v Saleib [2005] NSWCCA 85 (“Saleib”), where Bell J, as her Honour then was, (Adams and Hall JJ agreeing) made the following observations at [55]:-

19. [74]

    The Crown also referred to R v Quarta [2023] NSWCCA 173 (“Quarta”) at [111], where Mitchelmore JA (Walton and N Adams JJ agreeing) found that there was no error in concluding that an offence involved a disregard for public safety where there was a potential risk to members of the public leaving for work on a public street who might also have been shot by the offender, even though he was aiming his weapon at a particular individual.

20. [75]

    The Crown submitted that, contrary to the submissions of the applicant that only the victim was placed at risk by the offending, the offender’s actions involved putting other members of the public at risk. The Crown observed that the victim’s wife was present and rushed to his aid, and that a staff member who was nearby in the aisle was close enough to hear a “loud crack” which it can be inferred was the sound of the axe hitting the victim’s head, and who turned to see the applicant armed with the axe with a blank stare on his face. The Crown submitted that it should be inferred from the fact that the offending occurred in the aisle of a public hardware store that there would have been a limited amount of open space and that there was a likelihood that other staff or customers could enter the vicinity at any moment. It was submitted that the act of swinging the axe itself created a danger to any nearby member of the public, including the victim’s wife, the nearby employee and anyone who may have entered the aisle. The fact that the applicant picked a random member of the public to attack while he was knowingly in a drug induced state, in the Crown’s submission demonstrated a disregard on the part of the applicant for the safety of all members of the public in the area at the time of the offending.

21. [76]

    The Crown conceded that neither party specifically referred to s 21A(2)(i) of the Sentencing Act in oral or written submissions. The transcript reveals that his Honour did not raise it with the parties on either the day the matter was heard (4 July 2024) or on the day the judgment was delivered (9 July 2024). I observe that his Honour was sitting in a busy list at Penrith. He had only recently been provided with the applicant’s voluminous material and had not read it before coming onto the bench on 4 July 2024. Thus, his Honour did not have an opportunity to distil and appreciate all matters arising from the material prior to hearing the evidence and submissions. The failure to provide the Court with the applicant’s material in a timely manner no doubt contributed to the circumstances which underpin this ground of appeal.

22. [77]

    The Crown submitted that no breach of procedural fairness was occasioned, because its written submissions before his Honour implicitly raised the issue of public safety as set out in [38]-[39] above. In my view, that submission went to the objective seriousness of the offending, rather than to the aggravating factors which were separately and distinctly addressed both orally and in writing. I therefore reject the submission that the applicant was on notice that s 21A(2)(i) was an issue raised on the material before his Honour.

23. [78]

    The applicant referred the Court to the decision of Stokes v R (2008) 185 A Crim R 74; [2008] NSWCCA 123 (“Stokes”). In that case, the offender had been convicted of supplying prohibited drugs. The relevant ground of appeal was whether the sentencing judge erred in finding that the offending was part of a planned or organised criminal activity within the meaning of s 21A(2)(n). The Crown had not proposed such a finding, there had been no concession by the offender, and the sentencing judge had not raised the prospect of making such a finding. The ground of appeal was successful. Barr J (Giles JA and Hall J agreeing) said at [14]-[15]:-

24. [79]

    The applicant submits that Stokes is on all fours with the instant case, and that the first ground of appeal is made out on the procedural fairness aspect alone. I observe that in that case, on resentence, the aggravating factor was found to be present and no lesser sentence was found to be warranted.

25. [80]

    In my opinion, subject to the question of materiality and whether or not “practical injustice” was avoided, there has been a breach of procedural fairness, in the sense that, in the context of the other s 21A factors beings discussed in terms, the applicant was not alerted to the possibility of his Honour’s finding in relation to an additional s 21A factor, and he therefore did not have an opportunity to address his Honour on a factor that was ultimately decided adversely to him. In my view, after reserving his decision, it would have been preferable for his Honour, through his associate, to notify the parties by email to give them an opportunity to address him on s 21A(2)(i). If that had been done, it may be that there would have been no appeal.

26. [81]

    That leaves the threshold question of materiality or practical injustice. This can be dealt with as part of the second aspect of this ground of appeal; that is, whether it was open for the sentencing judge to find beyond a reasonable doubt that the offence was committed without regard for public safety.

27. [82]

    Section 21A of the Sentencing Act relevantly provides:

28. [83]

    His Honour was therefore required to take into account the aggravating factor in s 21A(2)(i), so far as it was relevant and known to the court.

29. [84]

    The inquiry posed by the words “without regard for public safety” is directed at the degree of “regard” for public safety that is displayed by the offender in committing the offence. It is not directed at the concept of public safety generally, or to the degree of actual or prospective risk or danger to public safety which in fact results from the offender’s conduct. That is not to say that the latter cannot inform the assessment of the degree of regard displayed by the offender. In both Chisari and Quarta the Court relied on evidence of the risk or danger to public safety as a basis for inferring that the offender had disregarded public safety.

30. [85]

    In the present case, the applicant entered a hardware store at 7.17 am in a drug-induced state when it was open to the public. It can be inferred that staff, who are at least members of the public, were then present. At 7.48 am the applicant sat on a step in the tool shop. At 7.54 am a staff member approached the applicant after he had picked up a spanner and talked to him. At 8.04 am, the applicant approached the information desk with a crowbar, had an interaction with the same staff member and left the store. At 8.27 am, the applicant re-entered the store and picked up a long-handled axe. He walked towards and then away from the gardening supply section of the store. At 8.30 am, without provocation, warning or any interaction, the applicant approached the victim and his wife in an aisle and swung the axe, hitting the victim on the head. A nearby staff member heard a crack and saw the victim’s wife assisting the victim and could see the applicant at the end of the aisle still armed with the axe. The applicant indifferently walked out of the store and left the axe on his way out. The applicant had temporarily armed himself first with a spanner and then a crowbar before settling on the axe that he used to strike the victim. He was looking for a weapon to use to assault a random stranger. This was not impulsive wrongdoing. It involved a measure of planning which commenced when the applicant picked up the spanner. These findings are contained in the agreed statement of facts and in the unchallenged findings of his Honour.

31. [86]

    Bearing in mind these findings, to paraphrase Bell J in Saleib, I am of the view that an offence involving an unprovoked ferocious assault in which the perpetrator was looking for a weapon to use to assault a random stranger, committed in a hardware store open to the public in the near presence of members of the public, put public safety at risk and prejudiced public safety. That the applicant committed the offence without regard to public safety is, in my opinion, an inference that can easily be drawn from the fact that members of the public were in close proximity and that he nonetheless proceeded with the assault.

32. [87]

    In my opinion the aggravating factor in s 21A(2)(i) was relevant and known to the Court. It was well open to his Honour to find that factor proved beyond reasonable doubt, and indeed was inevitable. His Honour no doubt had regard to all of the facts and findings set out above when he concluded that “given that the offence occurred within retail premises in which there were staff and customers, the offence was committed without regard for public safety”.

33. [88]

    That this conclusion has been reached following the full argument had in this Court, where the applicant has had the opportunity to make detailed submissions, demonstrates the inevitability of the finding. In my opinion, had the argument taken place before his Honour, he would still have made the s 21A(2)(i) finding beyond reasonable doubt that the offence was committed without regard for public safety. Therefore, in my view no unfairness resulted from the process and there has been no practical injustice visited upon the applicant.

34. [89]

    I would dismiss this ground of appeal.

Ground 2 – Manifest excess

1. [90]

   The applicant’s second ground of appeal is that the sentence imposed on him is manifestly excessive with respect to both the maximum and minimum terms.

2. [91]

   The applicant conceded that the offending must be regarded as serious. However, he submitted that an undiscounted starting point of six years for the head sentence was unreasonable if one synthesised all relevant factors, including those personal to the applicant.

3. [92]

   The applicant submitted that the offender presented with a strong subjective case and that important mitigating factors were found in his favour. In particular, it was submitted that his plea of guilty, medical diagnoses, lack of prior convictions, strict bail conditions for two years awaiting sentence, acceptance of responsibility, prior good character, good prospects of rehabilitation, childhood social disadvantage, and delay were all factors that amounted to a strong subjective case. The applicant submitted that whilst individually these factors could not be regarded as particularly powerful, their combined force should have attracted more weight in the sentencing exercise. The applicant referred to R v Errington (2005) 157 A Crim R 553; [2005] NSWCCA 348 per Mason P (with whom Grove and Buddin JJ agreed) at [18], where his Honour advanced the uncontroversial proposition that proper weight should be given to powerful or unusual subjective features, in conformity with the principle of individualised justice. The applicant submitted that, in this case, it can be inferred from the undiscounted starting point and the sentence actually imposed, that the applicant’s subjective case was not given proper weight.

4. [93]

   The applicant also referred the Court to sentencing statistics obtained from the Judicial Information Research System database for s 35(2) offences, which his Honour had reviewed. The applicant says that these figures demonstrate that a head sentence of 5 to 8 years is generally reserved for a very small proportion of cases at the highest end of the spectrum. The applicant conceded that such statistics are a blunt instrument with obvious limitations. The applicant observed that when accounting for a plea of guilty (without knowing the actual discount), approximately 8% of 146 cases resulted in a head sentence of 5 to 8 years. The applicant submitted that, even allowing for the “deplorable” nature of the instant offending, this was not a case which fell into the most severe category which would justify an undiscounted head sentence of 6 years.

5. [94]

   The applicant also pointed to the sentencing judge’s consideration of case law on “worst case” offences, in particular R v Esho [2001] NSWCCA 415 (“Esho”) and Stanyard v R [2013] NSWCCA 134 (“Stanyard”), which pre-date the decision of the High Court in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 (“Kilic”). In Kilic, the Court said (at [18]-[20]):-

6. [95]

   The applicant submitted that, although the sentencing judge did not ultimately find that the offending in this case was of the worst kind, it is possible that the sentencing judge’s “detailed consideration” of the issue may have influenced his ultimate synthesis when consideration of “worst case” decisions had no role to play. It was conceded that it was not something raised by the Crown at first instance.

7. [96]

   The Crown submitted that a sentence must be proportionate to the gravity of the offence having regard to the objective seriousness of the offending: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15] per Spigelman CJ (McClellan CJ at CL, Grove, Barr and Bell JJ agreeing), R v Dodd (1991) 57 A Crim R 349 at 354 per Gleeson CJ, Lee CJ at CL and Hunt J and R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [156]-[158] per Spigelman CJ (Mason P, Barr, Bell and McClellan JJ agreeing).

8. [97]

   The Crown submitted that the offending in this case was a serious example of its kind given the circumstances in which it occurred, the level of violence used, involving the use of an axe, and the serious and permanent injuries suffered by the victim. The legislative guideposts were taken into account. There was a limited discount of 10% for the plea of guilty. It was submitted that it was necessary for the sentencing judge to give weight to general and specific deterrence, the need to the protect the community and the need to adequately punish the applicant. There were no factors which warranted a finding of special circumstances. The Crown submitted that, taking into account all of these matters, the applicant has not demonstrated that the sentence imposed is unreasonable or plainly unjust.

9. [98]

   The principles relating to manifest excess are settled and not in dispute. In Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221 at [443], RA Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) summarised those principles as follows:-

10. [99]

    In He v Sun (2021) NSWLR 518; [2021] NSWCA 95, Bell P (as his Honour then was), Gleeson JA agreeing, McCallum JA agreeing with additional reasons, said at [42]:-

11. [100]

    The applicant does not identify any patent error other than the finding of the statutory aggravating factor dealt with above and rejected. No misapplication of principle is identified. He does not dispute that the offending constituted a significant and unprovoked attack upon a member of the public, which has left the victim with long-term harm. He concedes that his Honour found the offending, at least implicitly, to be objectively serious. Bearing in mind the objective features of the offending, clearly set out by his Honour, there was no other finding available to him.

12. [101]

    The statistics relied upon by the applicant show nothing more than that there are a range of sentences imposed in a variety of cases of which the facts, both objective and subjective, are not known to this Court. That is why they are referred to as blunt instruments of limited utility and should not be given undue weight. In my view they do not assist this Court.

13. [102]

    As to his Honour’s comments with respect to Esho and Stanyard, I observe that in that part of his judgment he was discussing objective seriousness. His Honour was considering “[in] general terms, the graver the injury, the more serious the offence”. He then went on to canvass, appropriately, the extent to which the injury, emotional harm and loss inflicted upon the victim went beyond what may be expected in a case involving the infliction of grievous bodily harm to substantiate a finding that it was “substantial”, which his Honour did and about which there is no complaint in these proceedings. His Honour referred to the judgment in Kilic multiple times, and he expressly found that he was not satisfied beyond reasonable doubt that the offending fell within the worst category of cases for such offending, as that phrase was understood prior to Kilic. Whatever his Honour’s reasons were for briefly musing on Esho and Stanyard, I am not satisfied that it erroneously affected his synthesis of pertinent matters on sentence.

14. [103]

    In my opinion, having regard to all the factors that his Honour had to take into account when engaging in the instinctive synthesis exercise, it cannot be said that the sentence is manifestly excessive either with respect to the minimum or maximum terms. I would accept that the sentence is “stern” as to both, particularly bearing in mind the applicant’s subjective case. That, however, is not to the point. His Honour properly engaged in the process of intuitive synthesis by taking into account the objective seriousness of the offending, aggravating and mitigating factors, the applicant’s moral culpability and the purposes of sentencing set out in s 3A of the Sentencing Act as well as the intricacies of the applicant’s subjective case.

15. [104]

    The complaint here is, in essence, that his Honour did not give sufficient weight to the applicant’s subjective case. I disagree. His Honour observed the applicant give evidence. He credited him for his remorse, his plea of guilty, his lack of previous convictions and his prior good character, his attempts at rehabilitation, his mental health issues and his deprived background. He carefully set out every factor relied upon by the applicant in mitigation. No complaint is made that his Honour failed to take into account anything put forward by the applicant in his subjective case.

16. [105]

    As has been repeatedly said in this Court since Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, there is no one correct sentence. The purposes of sentencing pull in competing directions. In my opinion, his Honour balanced all sentencing considerations and arrived at a sentence that was neither unreasonable nor unjust and was within the range of available sentences.

17. [106]

    I would dismiss this ground of appeal.

Orders

1. [107]

   I propose the following orders:-

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.