Evatt (a pseudonym) v R

1. [1]

   WARD P: I agree with Yehia J.

2. [2]

   YEHIA J: Mr Evatt (a pseudonym) (“the applicant”) seeks leave to appeal against the sentence imposed on him by Priestley SC DCJ (“the sentencing judge”) in the District Court of New South Wales at Lismore on 12 April 2024 pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

3. [3]

   Following pleas of guilty entered in the District Court approximately two months prior to the listed trial date, the applicant was sentenced for four offences committed on 25 October 2021. Three offences were dealt with on indictment. These offences were two counts of sexual intercourse without consent knowing that the victim was not consenting, contrary to s 61I of the Crimes Act 1900 (NSW) and one count of entering a building with intent to commit an indictable offence, namely intimidation, contrary to s 114(1)(d) of the Crimes Act. A further offence was dealt with pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). This offence was contravening an apprehended domestic violence order (ADVO), contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

4. [4]

   On one of the counts of sexual intercourse without consent, the applicant asked the Court to take a further offence of sexual intercourse without consent knowing that the victim was not consenting into account on a Form 1 pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”).

5. [5]

   The applicant received a discount of 10% to reflect the utilitarian value of his pleas of guilty. The applicant was sentenced to an aggregate term of imprisonment for 12 years, commencing on 8 November 2021 and expiring on 7 November 2033, with a non-parole period of 8 years and 6 months. The applicant will first be eligible for release to parole on 7 May 2030.

6. [6]

   The following table sets out the offences, the maximum penalties and the indicative sentences pronounced by the sentencing judge.

Grounds of appeal

1. [7]

   The applicant relied on grounds of appeal filed on 15 April 2025 as follows:

Circumstances of offending

1. [8]

   The sentencing judge had regard to a Statement of Agreed Facts. The following summary of the facts is taken from the Remarks on Sentence (ROS).

2. [9]

   The victim of the offending was the applicant’s wife. The victim and the applicant had separated in 2020, 18 months prior to the offending. Both the victim and the applicant were 32 years of age at the relevant time. They had two children together, aged 8 and 4 at the time of the offending. Both children were asleep in the house when the offending occurred.

3. [10]

   Upon the breakdown of the marriage, the victim moved to a new address and intentionally kept that address a secret from the applicant.

4. [11]

   In about August 2021, the victim commenced a new relationship.

5. [12]

   On 4 March 2021, an ADVO was granted against the applicant for the protection of the victim. The conditions of that order included a prohibition on the applicant locating or attempting to locate the victim. The applicant was also prohibited from coming within 100 m of the victim, with exceptions.

6. [13]

   On 21 May 2021, parenting orders were made which included that the victim and the applicant communicate about parenting issues via email. Such communication was to be no more than once per week unless there was an emergency.

7. [14]

   On 22 October 2021, the victim dropped the children off to the applicant to spend time with him over the weekend.

8. [15]

   On 23 October 2021, the applicant communicated with the victim by telephone call and message seeking to attend her house to obtain a child’s scooter. The victim declined that request.

9. [16]

   On 24 October 2021, another text message was sent by the applicant wanting to go to the victim’s house to get towels for the children so they could go swimming. The victim again declined the request. The applicant asked the children where they lived and said he would send them to their rooms unless they told him. The applicant took the children to a park near the victim’s house and one child pointed out the victim’s house.

10. [17]

    Later that day, the victim and the applicant met to return the children. The applicant said that one of the children had pointed out the victim’s house. The victim became worried. The applicant sent a Facebook message to a friend in excited terms telling her he now knew the victim’s house. Later that same evening, the applicant attended a friend’s house and drank some beers. Around midnight, the applicant told his friends he was going for a walk and would come back to take his medication.

11. [18]

    At 2am on the morning of 25 October 2021, the applicant attended the victim’s house. The victim and the children were asleep. The victim woke up hearing noises and thought she saw a head peek around her bedroom door.

12. [19]

    The victim came face-to-face with the applicant, who grabbed her by the throat. This caused pain to the victim. The applicant pushed the victim towards the bedroom, leading her by holding her throat, and said, “Guess I’m really going through with this after all… My heart is racing”.

13. [20]

    This conduct constituted the offending captured by count 2: entering a building with intent to commit an indictable offence, namely intimidation.

14. [21]

    The applicant sat on the victim’s bed and pulled her towards him so that she was between his legs facing him. She could smell alcohol on his breath. The applicant grabbed her phone from a shelf next to her bed. The applicant asked questions about the victim’s boyfriend and where he lived before threatening to kill him and to rape his daughter. The applicant eventually said, “I’m just going to kill them all”. He also made threats to physically harm the victim.

15. [22]

    The applicant then laid back on the bed and pulled out his penis, demanding that the victim suck it. Out of fear, she did so and whilst that was happening the applicant made remarks such as “good girl”.

16. [23]

    This conduct constituted the offending captured by count 1: the first count of sexual intercourse without consent knowing the victim was not consenting.

17. [24]

    The applicant then used the victim’s phone to send himself messages intended to portray him in a good light for example, “you are a good dad”. The applicant also sent messages to the victim’s boyfriend purporting to end their relationship and falsely saying that one of the children had told the applicant that the victim’s boyfriend had exposed himself to the child.

18. [25]

    The applicant then repeatedly apologised for his previous conduct. The applicant was trying to convince the victim not to go to the police. Whilst it is unclear what specific conduct the applicant was apologising for, the sentencing judge found that he was referring to the immediately preceding offending conduct. The victim said she would think about it in the hope that the applicant would leave without hurting her.

19. [26]

    The applicant then said, “get on top of me” and the victim complied. The applicant inserted his penis into the victim’s vagina and had sexual intercourse with her for a number of minutes without a condom. The victim complied out of fear and to avoid being hurt.

20. [27]

    This conduct formed the basis of count 3: the second count of sexual intercourse without consent knowing the victim was not consenting.

21. [28]

    The applicant told the victim to “get on all fours” and then inserted his penis into her vagina from behind for a number of minutes.

22. [29]

    He then performed cunnilingus upon the victim for a number of minutes before asking the victim, “your mouth your ass or your pussy?”. The facts do not disclose any further offending after this question. There was no ejaculation. The applicant wiped down the victim’s phone and door handle and eventually left the premises and returned to his friends and went to sleep. This conduct was taken into account on a Form 1.

23. [30]

    The period over which the victim was subjected to this sexual violence was approximately 2 hours.

24. [31]

    The victim immediately telephoned her boyfriend, then the police, then her mother and attended the hospital.

25. [32]

    At 5:11am on 25 October 2021, the applicant spoke to a friend and told him he knew where the victim lived. The friend asked whether he needed to call the police or the ambulance and whether the victim was okay. The applicant stated, “it’s all good I got the closure I needed, everything was fine when I left, she gave me a hug goodbye, [the victim] was fine and all good”.

26. [33]

    In the ensuing police investigation, the applicant could not be found. When he became aware that the police were involved, he fled New South Wales and drove to Queensland. An extradition order was obtained on 8 November 2021 and the extradition occurred on 9 November 2021.

27. [34]

    The applicant participated in a recorded interview 15 days after the offending. He said he was drunk and medicated. He claimed that he had attended the house after receiving messages from the victim, which was false. He told police that the victim initiated sex. He told police that his penis “doesn’t work without tablets” and even with tablets is dysfunctional. He said that he went through the victim’s phone and looked at her Facebook to see that she had moved on with her life which was a turning point for him to just “be happy for her”. He did not admit to sending messages to the victim’s boyfriend. He admitted his son told him where the victim lived but said he did not intentionally seek that information.

Remarks on sentence

1. [35]

   The sentencing judge found that the applicant had a real determination to “dominate, humiliate, control and degrade the victim”. There was little to set apart the two counts of sexual intercourse without consent other than the fact the second incident occurred in the context of the applicant having already committed count 1.

2. [36]

   The sentencing judge took into account the fact that the applicant had actual knowledge that the victim was not consenting. His Honour also referred to the lack of protection used.

3. [37]

   The sentencing judge rejected the submission that there was a high level of planning, instead finding the applicant had a “significant level of determination” to offend, and that his comments to others and the victim demonstrated that he had given the offending forethought and it was not impulsive. The applicant sought to obtain the victim’s address despite knowing she did not want it to be known, and having learnt the address, attended in the early hours of the morning. His Honour found that the use of the victim’s phone could be described as opportunistic, but not the attendance at the house.

4. [38]

   The sentencing judge accurately observed that the applicant’s self-induced intoxication was not a mitigating factor: s 21A(5AA) of the CSPA.

5. [39]

   His Honour found that the most significant aspects of the offending were the duration of the offending, the time at which it occurred and the callous disregard for all concerned. His Honour observed that it was only “good fortune” that the applicant’s children did not come upon the scene of the offending as they slept nearby.

6. [40]

   The sentencing judge had regard to the fact that there were family law orders in place which the victim had complied with. The applicant, on the other hand, had attempted to create excuses for contact with the victim, contrary to those orders. The applicant was subject to an ADVO at the time he committed the offences. In his assessment of objective seriousness, the sentencing judge had regard to the fact that the offending occurred in a domestic violence context and in the home of the victim.

7. [41]

   The sentencing judge also had regard to a number of discrete aggravating factors. These included that the offending involved actual or threatened violence and was carried out in a way that included significant intimidation, both directly and by reference to others.

8. [42]

   The sentencing judge had regard to a victim impact statement, finding that the offending conduct caused trauma, anxiety and economic loss and significantly affected the victim’s sense of self-worth, pride and confidence. The sentencing judge acknowledged that the harm caused extended beyond the victim to the children. His Honour was satisfied that the injury, emotional harm, loss or damage caused to the victim was substantial and took it into account as an aggravating factor.

9. [43]

   With respect to counts 1 and 3, his Honour assessed the objective seriousness of the offending to be in the “high mid-range”. This finding accorded with the submissions made on behalf of the applicant during the sentencing proceedings, in respect of the assessment of objective seriousness in relation to counts 1 and 3.

10. [44]

    With respect to count 2, the sentencing judge observed that it was not opportunistic conduct and that it was in breach of the ADVO. His Honour found that it was a “serious example of that type of offence” and a “serious matter”.

11. [45]

    Three reports authored by Mr Patrick Sheehan, Psychologist, were tendered in the sentencing proceedings. They are dated 22 August 2023, 25 March 2024 and 27 March 2024 respectively. The report dated 27 March 2024 was tendered by the prosecutor.

12. [46]

    The applicant’s parents separated when he was aged 2 and he remained with his mother and had little contact with his father. There was an occasion when the applicant’s father “kidnapped” the applicant and his brother for several days. The applicant was told that his father was a heroin addict and committed domestic violence. The applicant’s mother re-partnered when the applicant was about 13-14. The applicant never really bonded with his stepfather. The applicant spent extended periods on his maternal grandparents’ farm and was close to them. His grandfather was his primary male role model.

13. [47]

    The applicant recalled living in poverty in housing commission properties. The applicant’s mother smoked cannabis and would on occasion strike him on the face in anger. However, the applicant denied experiencing any severe trauma or sexual abuse.

14. [48]

    The applicant reported that he was “a shit of a kid, had a bad temper”. The applicant was diagnosed with, and treated for, Attention Deficit Hyperactivity Disorder (ADHD). The applicant was aggressive at school and was expelled from primary school. Upon leaving school, he worked at an abattoir and then joined the army at the age of 17. He remained in the army for the following 14 years, in transport/logistics and as a recovery mechanic, attaining the rank of Lance Corporal. The applicant experienced what was described as “some work-related trauma”. Mr Sheehan noted that it was not the results of trauma that troubled the applicant most about work. Rather, over time, he felt that his body was breaking down and he felt cumulatively diminished and disillusioned to the point of being unable to continue. This became acute after his wife left him in late 2020. He went on stress leave in October 2020 and never returned to work. He was medically discharged from the army in December 2021 whilst on remand for the present offences.

15. [49]

    The applicant’s familial relationships are complicated. His father sought to contact him after the birth of his first child, but he rebuffed the gesture. Several months later, the applicant’s father died by way of an overdose. The applicant’s relationship with his mother was uneasy and she did not accept his decision to join the army. The applicant reported that he does not like his brother who has a prior history of drug use problems.

16. [50]

    The applicant’s temper and anger management issues resulted in frequent fighting in social settings. As an adult, his social life revolved around the army. The applicant reported an entrenched drinking culture. Mr Sheehan concluded that “drinking to intoxication remained the mainstay of [the applicant’s] social repertoire up until his arrest”. During his period off work, the applicant kept company with other heavy drinking peers.

17. [51]

    In 2013, the applicant briefly saw a psychologist following a trauma response to a motor vehicle accident. There was some abuse of narcotic pain medication at this time. The applicant reported that he felt prominent internal distress for some years but did not acknowledge it due to the workplace culture whereby emotional problems were considered a weakness.

18. [52]

    During his first interview with Mr Sheehan, the applicant was preoccupied with the family separation. The applicant’s relationship with the victim commenced in high school and they married when he was 18. He described not being emotionally present and admitted a pattern of behaviour whereby there would be a build-up of internal distress and disproportionate anger. The applicant denied earlier domestic violence, a matter disputed by the victim. Following the separation, family court proceedings resulted in the applicant experiencing feelings of resentment and grievance, particularly when he was not working and drinking heavily. The applicant became “preoccupied with these grievances”.

19. [53]

    The applicant was highly sexually active and said that in the marriage they solved their problems with sex. Mr Sheehan referred to this as a pattern of “sexual preoccupation and sexual coping, with his interest in sex being inversely proportionate to his emotional well being”. This sexual coping (using sex to manage negative emotional states) is said to have played a role in the commission of the current offences. The applicant suffered erectile dysfunction from 2020 and used Cialis.

20. [54]

    The applicant has no history of illicit substance use however does abuse alcohol. He has used alcohol heavily since his late teens, drinking “a few beers” on weekdays and drinking to heavy intoxication on weekends. The applicant has also been vulnerable to overuse of prescribed medications.

21. [55]

    The applicant reached crisis point in 2020 when he lost his employment and his marriage ended. In October 2020, the applicant was admitted to hospital for three days after overdosing on alcohol and various medications. Mr Sheehan reported that the history provided by the applicant reveals a “hazardous and nihilistic use of alcohol and sedating medications” up until the commission of the offences. The applicant reported that he “would just want to blackout for the 12 days” between seeing his children. He had also experienced suicidal ideation at this time.

22. [56]

    Dr Apel, Psychiatrist, diagnosed the applicant with alcohol use disorder and major depressive disorder on 26 September 2022. The applicant was treated and medicated by Dr Apel from December 2020 until at least September 2021. The applicant also saw a Psychologist, Dr Patton, between November 2020 and November 2021, over the course of a total of 48 sessions.

23. [57]

    Mr Sheehan considered that the applicant’s major depressive disorder was in partial remission and his alcohol use disorder was said to be moderate in sustained remission in a controlled environment.

24. [58]

    Mr Sheehan’s view was that there were some indicators of personality vulnerability, with the applicant presenting with a pattern of strained and troubled relationships, a lack of emotional maturity and a reduced tolerance to the challenges of everyday life. However, there was inadequate evidence of antisocial personality disorder and borderline personality disorder.

25. [59]

    With respect to the offending, the applicant said:

26. [60]

    Mr Sheehan opined that “personality variables” seemed a likely contributor to problems with emotional control, as well as the presence of a depressive disorder. The applicant has “developed poor habits of coping through substance abuse as well as sexual coping, both of which would appear to have been contributing factors to his current offences”. Mr Sheehan opined that the evidence “clearly supports the assertion that [the applicant] suffered from major depressive disorder at the time of the offences”.

27. [61]

    The sentencing judge found that Mr Sheehan’s report “stops short of asserting a clear causative link between any mental illness and the offending, and no submission was made to that effect”.

28. [62]

    The risk of reoffending was said to be in the average range. The applicant completed a Positive Lifestyle Program in custody prior to sentencing, which dealt with issues such as grief and loss, anger, depression and self-awareness.

29. [63]

    The applicant authored a letter of apology, in which he acknowledged his wrongdoing and said that he has reflected on how his actions have impacted the children, the victim and their extended families. The sentencing judge found that the applicant was genuinely remorseful, observing that further evidence of remorse could be drawn from the applicant’s guilty pleas, albeit at a fairly late stage.

30. [64]

    The sentencing judge also had regard to a letter from the inmate education clerk at Clarence Correctional Centre, which spoke positively of the applicant, describing him as decent and respectful. It noted that at the applicant’s suggestion, steps were taken which led to certain programs being made available for people on remand, and noted the applicant’s work as a librarian and assisting other inmates.

31. [65]

    Prior to the separation, the applicant had no criminal history. Subsequent to the separation, the applicant had one charge prior to the present offending of contravening the ADVO. The applicant made admissions to threatening to distribute intimate photos of the victim. This was dealt with in the Brisbane Magistrates Court on 5 October 2021. The applicant was fined $400 and no conviction was recorded.

32. [66]

    With respect to a submission that the applicant’s background gave rise to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 considerations, the sentencing judge found that, “Most likely the circumstances in which he was raised did contribute to him being a person not very capable of dealing with emotions with his outlet apparently being sex and drinking.” However, the applicant did have a good relationship with his grandparents.

33. [67]

    With reference to R v Millwood [2012] NSWCCA 2, the sentencing judge found that the applicant’s background was “less than optimum” or somewhat more difficult than might be expected in a “normal” or “advantaged” upbringing.

34. [68]

    The sentencing judge found that the applicant suffered “some disadvantage” in his upbringing, which his Honour took into consideration. His Honour found that the “lenience” this provided was “minor” and it did not reduce the significance of deterrence.

35. [69]

    Ultimately, the sentencing judge found that the applicant’s subjective case was “not an outstanding one”.

36. [70]

    The sentencing judge found that the offending arose from jealousy, possessiveness and anger, and that the applicant posed a risk to the victim and to any person he forms an intimate relationship with.

37. [71]

    His Honour found that the applicant’s prospects of rehabilitation are guarded at best and that significant treatment is needed.

38. [72]

    Given the domestic violence context, the sentencing judge found that the sentence must reflect “significant general and specific deterrence”. The applicant’s subjective case did not lessen the weight to be given to these purposes to “any significant extent”.

39. [73]

    The sentencing judge found that the sentence should reflect significant denunciation and that the applicant must be held accountable for his actions. His Honour also recognised the need for rehabilitation and found that there should be some leniency given the applicant was a “pro social and contributing member of the community” for 31 years.

40. [74]

    The sentencing judge made a finding of special circumstances, albeit modest, recognising the need for treatment to address the applicant’s alcohol, relationship and personality issues.

41. [75]

    Noting that the applicant’s depressive condition was in remission, the sentencing judge did not find that it would add to the onerous nature of custody.

42. [76]

    With respect to a submission that the applicant’s incarceration was rendered more difficult due to COVID-19, the sentencing judge took this into account but given the lack of evidence on the point, found it did not have “any marked impact” on the sentence.

43. [77]

    The sentencing judge also found that totality had a role to play given the offences were part of one episode, however noted that the criminality involved in the repeated carrying out of the sexual offences must be recognised.

Ground 1: His Honour erred in failing to take into account the offender’s mental health

1. [78]

   The applicant contended that the sentencing judge erred in failing to take into account the applicant’s mental health in a mitigatory way. It was submitted that the applicant’s moral culpability ought to have been reduced in light of his mental health issues. It was also submitted that the applicant was an inappropriate vehicle for the “full weight” of general deterrence and that the sentencing judge should have tempered the emphasis on specific deterrence.

2. [79]

   The principles to be applied when considering the impact of mental health issues upon an offender are well-established and set out in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”) at [177] (McClellan CJ at CL) as follows:

3. [80]

   These principles have been more recently summarised and endorsed in: ET v R [2024] NSWCCA 131 at [106] (Davies J, Kirk and Mitchelmore JJA agreeing); JP v R [2024] NSWCCA 96 at [66] (Rothman J, Ward P and Wright J agreeing); Crane v R [2024] NSWCCA 87 at [68] (Yehia J, Stern JA and Rothman J agreeing); DB v R [2023] NSWCCA 323 at [49] (Lonergan J, Simpson AJA and Dhanji J agreeing).

4. [81]

   While the principles are well settled, it is necessary to emphasise that nothing said in De La Rosa equates with a requirement that an offender must establish a direct causal link or nexus between the mental health issues and the offending before moral culpability is reduced. Instead, what is required is evidence indicating that an offender’s mental health “contributes to the commission of the offence in a material way”.

5. [82]

   As Hamill J said in Luque v R [2017] NSWCCA 226 at [114]:

6. [83]

   A sentencing judge should guard against taking too prescriptive an approach by requiring a direct causal link between the mental illness or cognitive impairment and the offence before those conditions can operate to reduce the appropriate sentence: Moiler v R [2021] NSWCCA 73 at [59] (Button J, Basten JA and Davies J agreeing). See also Lane v R [2025] NSWCCA 113 at [112] (Ierace J, Garling and Lonergan JJ agreeing).

7. [84]

   However, even where a mental health condition materially contributes to the offending, it does not automatically follow that moral culpability will be reduced or that there will be a reduction in sentence. As Wilson J said in WW v R [2023] NSWCCA 311 at [82] (Kirk JA and Fagan J agreeing), “there is no principle of law to the effect that the sentence imposed upon a mentally ill offender must be mitigated by that fact”.

8. [85]

   In R v Engert (1995) 84 A Crim R 67 at 68, Gleeson CJ said, with respect to the impact of mental health on the sentencing discretion:

9. [86]

   Furthermore, as Dhanji J said in Harris v R [2021] NSWCCA 322 at [89] (Simpson AJA and Ierace J agreeing):

10. [87]

    These observations are particularly apt in the context of domestic violence offending, as the High Court made clear in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, quoted in Harris v R above.

11. [88]

    The sentencing judge found that the expert evidence fell short of establishing a “clear causative link” between the applicant’s mental health and the offending. Although his Honour unduly or unnecessarily elevated the principles enunciated in De La Rosa by focusing on a “clear causative link”, I am not satisfied that his Honour erred by failing to take into account the applicant’s mental health as contended for by the applicant. I have come to that view for the following reasons.

12. [89]

    Firstly, although the applicant’s counsel at first instance referred to the applicant’s poor mental state as contextualising the offending, no submission was made to the sentencing judge that the applicant’s mental health operated to reduce his moral culpability or the weight to be afforded to general deterrence.

13. [90]

    In the applicant’s written submissions on sentence, under the heading “Bugmy Considerations”, it was submitted that the offending occurred “in his poor mental state” at the time. Under the heading “Prospects of Rehabilitation & Recidivism”, the applicant’s written submissions on sentence referred to his “psychological maladjustment” from 2019, provided details of his treatment, and pointed to Mr Sheehan’s opinion that at the time of the offending the applicant suffered from a major depressive disorder and had not met criteria for an antisocial personality disorder. This was not developed during oral submissions in the sentencing proceedings.

14. [91]

    Secondly, although Mr Sheehan concluded that factors contributing to the offending conduct included the applicant’s “personality variables”, depressive disorder and “poor habits of coping through substance abuse as well as sexual coping”, it is unclear how those matters contributed to the applicant’s conduct. The applicant’s actions demonstrated a degree of deliberation, manipulation and control in the context of sexual violence that took place over a period of two hours. The applicant himself reported that he was overcome with “rage” and motivated by wanting “to hurt”.

15. [92]

    Thirdly, even if it were established that the applicant’s mental conditions materially contributed to the offending, it does not automatically follow that a lower sentence was appropriate. Given the nature of the offending and the fact that the offences were committed whilst the applicant was subject to an ADVO, a reduction in the applicant’s moral culpability was not warranted. Furthermore, general and specific deterrence remained important and weighty considerations. This is particularly so in light of the fact that the applicant’s treatment from both a psychologist and a psychiatrist for approximately a year before the offending, did nothing to prevent it.

16. [93]

    Fourthly, the sentencing judge referred to the applicant’s ADHD, car accident trauma, work trauma, medical discharge from the army, hospitalisation in 2020 and diagnoses of major depressive disorder and alcohol use disorder and clearly took those matters into account in his appraisal of the applicant’s subjective circumstances.

17. [94]

    In light of Mr Sheehan’s opinion that the applicant’s major depressive disorder was in remission, it was open to the sentencing judge to find that custody would not be more onerous for the applicant.

18. [95]

    Fifthly, the sentencing judge made a finding of special circumstances due to the need for treatment of the applicant’s alcohol, relationship and “personality issues”. The sentencing judge found that the extended period of supervision was justified given the “deeply ingrained” attributes of the applicant that caused the offending conduct. His Honour found that the applicant’s “personality make up” would require significant and ongoing assistance.

19. [96]

    Accordingly, I am of the view that Ground 1 should be dismissed.

Ground 2: The aggregate sentence imposed was manifestly excessive

1. [97]

   The applicant contended that the sentence is so far outside the range of available sentences that there must have been an error. The principles applicable to a complaint that a sentence is manifestly excessive were summarised by R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (“Obeid”) at [443] as follows:

2. [98]

   In He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95, after summarising the principles applicable to determining whether a sentence is manifestly excessive, Bell P (Gleeson and McCallum JJA agreeing) continued as follows:

3. [99]

   As observed by N Adams J in Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153 at [168], the principles summarised in Obeid identify what is not sufficient to establish a ground of manifest excess: it is not sufficient merely to show that the sentence is “markedly different” from sentences imposed in other cases or that this Court might have exercised the sentencing discretion differently.

4. [100]

   The principle that intervention is warranted only where the difference is such that there must have been some misapplication of principle is taken from observations of the High Court in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 where Gaudron, Gummow and Hayne JJ stated:

5. [101]

   This passage was cited with approval by the High Court in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. To ascertain whether the difference is such as to conclude that there must have been some misapplication of principle, an intermediate appellate court will often need to consider comparable or comparative cases: see also Moodie v R (2020) 284 A Crim R; [2020] NSWCCA 160 as to the use of comparative cases.

6. [102]

   The applicant relied on eight comparative cases. It was submitted that these cases demonstrate a yardstick or a range of sentences that were available, and that the ultimate sentence was so far outside that range that it is manifestly excessive.

7. [103]

   The eight comparative cases reveal terms of imprisonment of between 4 years, 11 months (NPP 2 years, 5.5 months) to 9 years, 6 months (NPP 7 years).

8. [104]

   In Walker v R [2006] NSWCCA 228, the applicant pleaded not guilty to three counts of sexual intercourse without consent and was found guilty after trial. The applicant and the victim had previously been in a brief relationship. There was no ADVO in place. Sometime after moving out, the applicant attended the victim’s house with her consent but then followed her into the bedroom and commenced the offending. The offending consisted of fellatio, penile/anal and penile/vaginal intercourse. The anal intercourse led to bleeding and the victim was crying and screaming during the offending. The applicant was sentenced to 6 years and 6 months’ imprisonment, with a non-parole period of 4 years and 6 months. The applicant’s appeal was dismissed.

9. [105]

   In Bellchambers v R [2011] NSWCCA 131, the applicant pleaded guilty to four counts of sexual intercourse without consent. The applicant had been in a relationship with the victim and they had a child together. After the breakdown of the relationship, the sexual relationship between the applicant and the victim continued intermittently, with the applicant occasionally attending the victim’s new home. The offending involved four counts of vaginal intercourse without consent. Counts 1 and 2 occurred between October 2006 and May 2008. The applicant was on bail for those offences when he committed Counts 3 and 4 over a two day period in January 2010. The applicant was initially sentenced (after discount to reflect the applicant’s guilty pleas) to 10 years’ imprisonment, with a non-parole period of 7 years. On appeal, the Court found that there was “considerable ambivalence on the part of the complainant” and a “comparatively low level of violence”. The Court also found that the applicant’s “psychiatric and psychological circumstances” operated to appreciably mitigate his criminality. The Court found that the first three offences were “substantially below the midrange of objective seriousness” and that the fourth offence was “appreciably below the midrange”. The sentence was reduced on appeal to 7 years’ imprisonment, with a non-parole period of 5 years.

10. [106]

    In Pasoski v R [2014] NSWCCA 309, the applicant was convicted after trial of five counts of sexual intercourse without consent and two counts of assault occasioning actual bodily harm. On appeal, two of the convictions for the s 61I offences were quashed. The offending included the applicant kicking his partner in the back of her legs during an argument, and then the next morning slapping her face in front of her children, causing her to fall to the ground. Ten days later, he forced sexual intercourse with her three times over a short period. The applicant was re-sentenced on appeal to 4 years and 11 months’ imprisonment, with a non-parole period of 2 years and 5.5 months. The counts of sexual intercourse without consent were found to be “well below a mid-range of objective seriousness”. The Court found that the offences were not “associated with any physical threats or injury or gratuitous humiliation and involved sexual intercourse without consent between parties to an on-going albeit at times unhappy relationship”.

11. [107]

    In Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312, the applicant was convicted after trial of 15 counts of sexual intercourse without consent and two counts of indecent assault that occurred over the course of one evening. The offences took place in the context of an ongoing, violent domestic relationship. The victim was eight weeks pregnant and the applicant had threatened to kill her. The offences were committed in the presence of their two year old son and the victim pleaded for him to stop. The offending involved digital/vaginal and penile/vaginal intercourse, cunnilingus, licking of the anus and fellatio, and the sexual acts were accompanied by humiliating and degrading conduct. The Court of Criminal Appeal found that the offences fell within the middle of the range of objective seriousness. The applicant had received extensive psychiatric treatment, having been diagnosed with schizoaffective disorder, major depression, psychosis and obsessive compulsive disorder. The sentencing judge at first instance found that “it is clear that his mental health issues did contribute to the way in which he behaved or reacted on this particular evening” and found that his mental health moderated the need for general deterrence to some degree. The applicant was re-sentenced after a successful Crown appeal to 9 years and 6 months’ imprisonment, with a non-parole period of 6 years and 6 months. The “limiting purpose” of Crown appeals must also be borne in mind: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [36] (French CJ, Crennan and Kiefel JJ). The purpose of Crown appeals is to avoid manifest inadequacy or inconsistency in sentencing, which distinguishes them from sentencing at first instance: Everett v The Queen; Phillips v The Queen (1994) 181 CLR 295; [1994] HCA 49; Lacey v Attorney General of Queensland (2011) 242 CLR 573; [2011] HCA 10.

12. [108]

    In Jonson v R (2016) 263 A Crim R 268; [2016] NSWCCA 286, the applicant was convicted after trial of an offence of recklessly inflicting grievous bodily harm and two offences of sexual intercourse without consent. The offences were committed in the context of an abusive domestic relationship over many years. On one occasion, the applicant slapped the victim to her head causing a perforated eardrum and on a separate occasion he forced fellatio, then penile/anal intercourse and then fellatio again, after which the victim threw up. Some of the offending was committed in the presence of a child. The applicant was sentenced to 9 years’ imprisonment, with a non-parole period of 6 years and 5 months. The applicant’s appeal against sentence was dismissed. The appeal judgment is silent on findings as to the objective seriousness of the sexual offences.

13. [109]

    In McGrory v R [2018] NSWCCA 226, the applicant sexually and physically abused his de facto partner over 24 hours. He was found guilty after a judge-alone trial of four counts of assault occasioning actual bodily harm, five counts of sexual intercourse without consent and two counts of persuading a witness to give false evidence. The offending comprised multiple sexual assaults which were “violent, sadistic and brutal”. The offences were found to be in the high end of the mid-range of objective seriousness. The applicant was not remorseful and was found to have dim prospects of rehabilitation. Psychological reports diagnosed him with alcohol dependence, substance dependence, major depressive disorder, post-traumatic stress disorder, intermittent explosive disorder and borderline personality disorder. The applicant was sentenced to 9 years and 6 months’ imprisonment, with a non-parole period of 7 years. The applicant’s appeal was dismissed. On appeal, the Court observed that but for the subjective factors, the sentence “could be considered to be lenient”.

14. [110]

    In Harper v R [2022] NSWCCA 211, the applicant was convicted after trial of two counts of sexual intercourse without consent and one count of common assault. The applicant also pleaded guilty to one count of intimidation. The offences involved penile/vaginal and anal intercourse against the applicant’s partner. The victim told the applicant to stop and that she was in pain. The applicant applied force to her head and inflicted emotional distress. The applicant was found to have very little remorse/insight and he had a criminal history including an offence of sexual assault against the same victim. The applicant was sentenced to 6 years’ imprisonment with a non-parole period of 4 years. The applicant’s appeal was dismissed.

15. [111]

    In Mattiussi v R [2023] NSWCCA 289, the applicant was convicted after trial of two counts of sexual intercourse without consent and one count of intimidate with intent to cause fear of physical harm. The applicant had been in a relationship with the victim for two months and engaged in consensual sexual activity at her house the night before the offending. The offences occurred in the victim’s home the following morning and involved the applicant inserting his penis into the mouth of the victim shortly after engaging in penile/anal intercourse causing her to spit, vomit and cry after tasting faeces. The applicant laughed and told her she deserved it. The applicant then forcefully inserted a 28 cm dildo into the victim’s anus, despite her telling him to stop. The intimidation offence occurred the following day when the applicant took the victim to a remote bushland location where he threatened to kill her after she dug her own grave. The sentencing judge assessed the sexual intercourse offences as “approaching the mid-range” of objective seriousness and the intimidation offence as “above the mid-range”. The applicant was not remorseful, had poor prospects of rehabilitation and a criminal record involving domestic violence offences. The applicant was re-sentenced on appeal to 7 years and 6 months’ imprisonment, with a non-parole period of 5 years and 3 months.

16. [112]

    The sentencing judge in the present matter acknowledged that there were decisions that imposed lesser sentences for such offences, but found that in this case, the offences fell beyond the midpoint of objective seriousness, and the applicant’s subjective case was “not an outstanding one”.

17. [113]

    The comparative cases relied upon reveal differentials both in respect of the assessment of objective seriousness (in some cases substantially or appreciably below mid-range) and the subjective cases.

18. [114]

    Having carefully considered the comparative cases, and while I am of the view that the sentence imposed on the applicant was a stern sentence, I am not persuaded that the applicant has demonstrated that his sentence is manifestly excessive in accordance with authority. In making that determination, I am cognisant of the fact that mere disagreement by appellate judges with the sentence imposed is not sufficient to warrant a conclusion that a sentence is manifestly excessive (or manifestly inadequate). The significant degree of latitude afforded to sentencing judges when reviewing sentences for manifest excess or manifest inadequacy reflects the fact that sentencing is a discretionary exercise in which there is no one correct sentence and that within a range of acceptability, the judgement of the sentencing judge as to an appropriate sentence should be respected: R v White [2025] NSWCCA 111 at [20]-[28] (Bell CJ, Payne JA and N Adams J agreeing).

19. [115]

    Accordingly, Ground 2 is not made out. I therefore propose the following orders:

    1. (1)

       Leave to appeal granted.

    2. (2)

       Appeal dismissed.

20. [116]

    WEINSTEIN J: I agree with Yehia J.