Wonnocott v R

1. [1]

   THE COURT: The applicant seeks leave to appeal against an aggregate sentence imposed by Pickering SC DCJ on 19 February 2025. The two charges to which he pleaded guilty were as follows, with the maximum penalties and the indicative sentences nominated by his Honour as shown:

2. [2]

   In both indicative sentences a discount of 25% was allowed for the applicant’s plea of guilty at the first opportunity. The aggregate sentence was imprisonment for 3 years and 2 months with a non-parole period of 1 year and 4 months. The sentence commenced on 19 February 2025. The applicant will be eligible for release to parole on 18 June 2026 and the head sentence will expire on 18 April 2028.

3. [3]

   At the same time, the applicant was sentenced to a wholly concurrent fixed term of 9 months for breach of a recognizance that had been imposed for an earlier contravention of s 474.17(1) of the Criminal Code, committed on 1 May 2021. He had initially been sentenced in the Local Court for that matter on 15 October 2021. On a severity appeal to the District Court the recognizance was imposed on 26 April 2022. A condition of the recognizance was that the appellant would not, for 12 months, commit any further offence against s 474.17(1). Breach was constituted by the commission of count 2. The 9 months fixed term imposed by Pickering SC DCJ is not the subject of the application for leave to appeal.

4. [4]

   The grounds of appeal, so far as they were pressed at the hearing of the application, are as follows:

Facts of the offending

1. [5]

   The agreed facts of count 1 were that in April 2022 Mr David Sharaz was the partner of Ms Brittany Higgins, who was widely known to have alleged that she was sexually assaulted by Mr Bruce Lehrman at Parliament House, Canberra in early 2019. Mr Sharaz had a public Instagram page. On about 11 April 2022 the applicant sent a private message to Mr Sharaz on his Instagram account, followed by further messages as Mr Sharaz responded. The exchange was as follows:

2. [6]

   Mr Sharaz and Ms Higgins reported the threats to police, providing screenshots of the messages. They took police advice regarding their personal safety and installed security cameras and alarms at their home. Mr Sharaz reported the threats to his workplace so that precautions could be taken.

3. [7]

   Count 2 was a rolled up charge concerning messages sent or posted by the applicant to various people and businesses, on social media, on 45 separate occasions. He used three accounts, on Instagram and Facebook platforms. Examples of the messages, sent to various online participants are as follows:

4. [8]

   On about 21 February 2023, Mr Alex Greenwich MP, who is referred to in the statement of agreed facts on sentence as “an openly gay man, and a political advocate for homosexual rights”, received six messages in the space of two minutes on his Instagram page from the applicant:

5. [9]

   The applicant was arrested on 25 February 2023 and charged in relation to the messages sent to Mr Greenwich. On 19 April 2023 he was again arrested and this time charged with the additional offending described above. The applicant was on bail until sentence was passed by Pickering SC DCJ.

Subjective circumstances

1. [10]

   The applicant was 48 years old at the date of these offences and 51 when sentence was passed. The learned sentencing judge accepted the history of his personal background provided in reports of Ms Sarah Campbell, psychologist and Dr Kristy MacDonald, forensic psychiatrist. He reported having been sexually abused by two adult male relatives at the age of about 4 or 5 years. He was shy and socially isolated in childhood. He sought, but was unable to attain, acceptance by peers. After leaving school the applicant acquired only limited skills. He commenced but did not complete an apprenticeship.

2. [11]

   At the age of about 20 years, in approximately 1994, the applicant was accused of sexual assault of a female, which he denied and for which he was not charged. The applicant did not form any lasting relationship with a member of the opposite sex. He was living with his elderly parents at the time of the offences.

3. [12]

   The applicant drank alcohol to excess, on binges, for most of his adult life. While the applicant was employed by Woolworths in a warehouse position, in about 2014 at the age of 40, he got into significant and persistent interpersonal conflict with managers and other employees. He appears to have reacted to this conflict with paranoid suspicions and increased abuse of alcohol. In the context of that period of personal stress, memories of his abuse in childhood resurfaced and exacerbated his depressed mood, sleeping difficulty, poor self-esteem, feelings of helplessness and long-standing tendencies to anger and irritability. The applicant became unemployed in 2015, apparently as a result of the workplace conflict, and he remained without work until about nine weeks before he was sentenced.

4. [13]

   The applicant was admitted to the Central Coast Mental Health Unit in 2014 and 2015, with symptoms of stress, depression, anxiety and paranoia in the context of alcohol abuse. Discharge notes from 19 November 2015 record that he experienced a brief and transient psychosis, that was either organic or secondary to alcohol abuse. Thereafter he saw three counsellors or psychologists intermittently over the next six years up to 2021. At times he was treated with anti-depressant medication for periods of a few weeks.

5. [14]

   The applicant described to Ms Campbell his rigid opposition to liberal social acceptance of homosexuality and transsexuals. He asserted to her that he would never follow through with the threats that he posted on social media and he denied any history of physical violence, which is consistent with his criminal record. He told the psychologist that he is typically “more passive in his face-to-face interactions”, compared to his online posts.

6. [15]

   Dr MacDonald diagnosed the applicant with a persistent depressive disorder, which was in early remission by the date of her report, being 22 December 2024. She found that his alcohol use disorder was in sustained remission. He ceased drinking to excess from 2016 and he has abstained altogether since December 2023. Dr MacDonald identified long-term personality traits of rigidity, inflexibility and a sense of persecution by others.

7. [16]

   The applicant’s criminal record showed offences of stalking and intimidating from August 2017, April 2018 and April 2019. The last mentioned instance, at least, involved use of a carriage service. He was convicted of a further offence of menacing, harassing or offending by use of carriage service, committed in March 2019. As the learned sentencing judge noted, the Local Court dealt with the applicant’s repeat offending of this nature in each of those instances with restraint, by imposing bonds, aggregate Intensive Correction Orders and Community Correction Orders.

8. [17]

   In the Local Court, his further offence of using a carriage service on 1 May 2021 was initially dealt with by way of 9 months imprisonment, to be released after 3 months on recognizance. The offence was constituted by posting a highly offensive message supportive of the massacre of Islamic worshippers at a New Zealand mosque. Pickering SC DCJ observed that the Local Court had, up to that point, attempted to deal with the applicant’s repeat offending in a way that would enhance rehabilitation and that that object had apparently not been achieved. His Honour noted that, while the applicant’s appeal from the Local Court sentence was pending and less than two weeks before the appeal was heard (on 26 April 2022), the applicant committed the offence in count 1 of posting threatening messages to Mr Sharaz. The District Court judge who heard the appeal allowed it, reducing the penalty to a recognizance for the full 9 months, unaware of the applicant’s further offending in the meantime.

9. [18]

   The applicant did not give evidence in the sentence proceedings. A Sentence Assessment report recorded that he “did not appear to minimise his offending”; he agreed that his actions had caused fear to others and that he should have acted differently and respected others’ views; he acknowledged his anger “as an issue in the past” and he stated that he was engaged in mental health treatment. The author of the report confirmed that professional psychological intervention was underway and accepted that the applicant “has made sound progress in managing his mental health”.

10. [19]

    On the basis of that report the learned judge accepted “that there is a degree of remorse and insight into [the applicant’s] offending in relation to this matter”. Based upon the entrenchment of the applicant’s views, particularly about the gay community, his Honour expressed “concerns generally about whether [the applicant] would reoffend in the future, and just quite what the extent of [his] remorse is”. However, his Honour made the following favourable findings:

Ground 1 – error in determining suitability of an ICO

1. [20]

   The power of the District Court to order that a sentence of imprisonment be served in the community under an ICO arises under the following sections of the Crimes (Sentencing Procedure) Act 1999 (NSW):

2. [21]

   Section 20AB of the Crimes Act 1914 (Cth) permits the District Court of New South Wales to make an ICO in respect of a person convicted before it of a federal offence, in circumstances where, under the law of this State, the District Court “is empowered to […] make such an order, in respect of a State [..] offender” in a corresponding case. The way in which the ICO provisions of the Crimes (Sentencing Procedure) Act are to be applied in sentencing for federal offences is explained in Vamadevan v R (2024) 116 NSWLR 195; [2024] NSWCCA 223. Two important sections of the Crimes (Sentencing Procedure) Act that are discussed in that decision are ss 66 and 68, as follows:

3. [22]

   In Vamadevan v R a bench of five judges of this Court held as follows;

4. [23]

   At pp 23-26 of the learned judge’s remarks on sentence his Honour stated his conclusions on the factors specified in s 16A of the Crimes Act, to which he was required to have regard by force of subs (2) of that section. Immediately following his evaluation of those matters, his Honour said this:

5. [24]

   After some further consideration of sentencing factors at pp 26-27, his Honour expressed the following conclusions:

6. [25]

   In support of ground 1 the applicant made the following submission in writing:

7. [26]

   Those paragraphs were followed by criticism of the basis upon which the learned judge decided that an ICO would be unsuitable. The submissions on ground 1 concluded in the following terms:

8. [27]

   Undoubtedly, the learned judge departed from the correct sequence of reasoning towards whether the sentence he was to fix should be served in the community under an ICO. The correct sequence, as dictated by the Crimes (Sentencing Procedure) Act and as explained in Vamadevan v R, would have been to determine the appropriate length of the aggregate sentence first. If he had done that, his determination that the aggregate sentence should be for a term longer than 3 years would have immediately engaged the “disentitling provision” in s 68(2) so that an order for the applicant to serve the sentence in the community under an ICO was simply not available. No consideration of the suitability of an ICO would have been necessary. As a result of departing from the correct sequence, his Honour undertook a redundant evaluation of the considerations relevant to ordering an ICO. That part of his Honour’s remarks is surplusage, to be disregarded. It had no consequence. It did not cause the exercise of the sentencing discretion to miscarry and it does not justify intervention by this Court.

9. [28]

   Ground 1 is not sustainable.

Ground 2 – error in failing to consider a Recognizance Release Order

1. [29]

   Section 20(1)(b) of the Crimes Act permits, in certain cases, that a court dealing with a person convicted of a federal offence may sentence the person to imprisonment but order that he or she be released upon entering into a recognizance to be of good behaviour. Section 19AC provides that where a sentence, or multiple sentences imposed at the same sitting, do not exceed 3 years, the court must make a single recognizance release order in respect of the sentence or sentences unless one of the exceptions provided for in subs (4) applies. Typically, sentence is passed and an order is made for release on recognizance either immediately or after some part of the sentence has been served in full-time custody. Section 19AB provides that where a sentence, or the aggregate of multiple sentences passed at the same sitting, exceeds 3 years, the court must fix a single non-parole period – subject to the exceptions provided for in subs (3) of s 19AB.

2. [30]

   As the learned judge passed an aggregate sentence of 3 years and 2 months for the two federal offences in counts 1 and 2, s 19AB of the Crimes Act was engaged. His Honour was required to fix a non-parole period and s 20(1)(b) concerning recognizance release orders was not applicable. There is no substance to the applicant’s complaint in ground 2.

Ground 3 – error in consideration of applicant’s mental health

1. [31]

   Doctor MacDonald expressed the following opinion:

2. [32]

   The applicant’s proposed ground 3 is based upon the following passage of the learned judge’s sentencing remarks:

3. [33]

   The applicant’s argument is encapsulated in the following paragraph of his written submissions:

4. [34]

   The above submission is followed by purported examples, taken from the remarks on sentence, of the learned judge allegedly paying mere “lip service” to the principles in Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. We do not accept that characterisation of his Honour’s consideration of the mental health issue. It is not necessary to reproduce the passages to which the applicant refers.

5. [35]

   Doctor MacDonald’s statement that the applicant’s “offending occurred as a direct nexus to his impaired mental state” was made in the context of her survey of the applicant’s long-standing issues of anger, irritability, alcoholism and anxiety. Those were features of his conduct and habits of life, not symptoms of mental illness. Doctor MacDonald’s reference to “impaired mental state” was not confined to the persistent depressive disorder that she diagnosed. It was open to the learned judge to conclude that the applicant’s diagnosed disorder, of itself, made a very limited contribution to his commission of the offences, which his Honour expressed by reference to no more than “some link” warranting “to a small degree, a reduction of the aspect of general deterrence [… and] some small reduction in moral culpability as well”.

6. [36]

   In the Court’s view, no fault can be found with that reasoning. His Honour was not required to quantify the degree of allowance that he would make for a reduced requirement of general deterrence or reduced moral culpability. On his Honour’s findings it was appropriate to make only a limited adjustment to the degree of weight to be given to those sentencing factors. The real contribution to the offending conduct from any diagnosable mental disorder was difficult to disentangle from the applicant’s choice, over a significant period of time, to indulge his resentments, hostilities and bigotry by venting on social media, rather than reflecting upon the impact on others and exercising self-control, with the assistance of counselling as necessary.

7. [37]

   No error has been identified in ground 3.

Ground 4 – error in the degree of notional accumulation

1. [38]

   Ground 4 is directed to the following passage, towards the end of his Honour’s remarks on sentence, after the indicative sentences had been nominated:

2. [39]

   The sum of the two indicative sentences would have been 3 years and 4 months. The aggregate imposed, of 3 years and 2 months, involved concurrence of only 2 months. His Honour’s non-parole period of 1 year and 4 months was only 42% of the full term, which ameliorated the severity of the sentence overall.

3. [40]

   The applicant complains that, contrary to his Honour’s remarks, the conduct involved in the two offences was not “completely different” and that the learned judge should have had regard to whether they “captured different forms of criminality”. We do not detect error in this respect. On a fair reading, the sentencing judge was noting that in count 1 the very personal, targeted death threat to Mr Sharaz and Ms Higgins, pressed through a series of posted messages to them alone, was offending of a different character from the generalised spray of bigotry that he issued to a public figure, Mr Greenwich MP, and otherwise to all and sundry.

4. [41]

   His Honour was right to identify the difference between the offending conduct in the respective counts and to treat it as calling for significant accumulation. The degree of accumulation that was applied fell within the range of his Honour’s sentencing discretion. No error of principle with respect to accumulation is apparent from the remarks on sentence.

Ground 6 – manifest excess

1. [42]

   A conclusion that a sentence is manifestly excessive is only to be drawn if it is “plainly apparent” and, having been drawn, it may “not admit of amplification”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]. Counts 1 and 2 were significantly grave offences of their type. The applicant had no claim to leniency. He had committed several prior offences of the same nature over a period of four years. He did not desist from misuse of social media messaging despite constructive sentencing dispositions on earlier occasions. The previous moderate sentencing orders were intended to facilitate rehabilitation and should have done so if the opportunities thereby accorded to the applicant had been taken up. The learned judge’s findings on subjective circumstances, including reduced risk of reoffending and a measure of remorse were favourable. Taking all things into account, the Court does not perceive the aggregate sentence imposed to have been manifestly excessive.

Orders

1. [43]

   The orders of the Court are:

   1. (1)

      Grant leave to appeal against sentence.

   2. (2)

      Dismiss the appeal.