R v Sabbah

1. [1]

   FREE JA: I agree with N Adams J.

2. [2]

   N ADAMS J: By notice of appeal filed on 26 May 2025, the Director of Public Prosecutions (NSW) (“the Crown”) appeals pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the sentences imposed on Nabeel Sabbah (“the respondent”) by David DCJ at the Sydney District Court on 28 April 2025.

3. [3]

   On 20 November 2024, the respondent stood trial before a jury and David DCJ for ten sexual and physical domestic violence offences committed against his then wife. On 4 December 2024, the jury returned verdicts of guilty to each of the counts on the indictment. The offences for which the respondent was convicted were:

   1. (1)

      Four offences of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) (counts 1, 2, 3 and 5). The maximum penalty for each offence was 14 years’ imprisonment and a standard non-parole (“SNPP”) period of 7 years’ imprisonment applied;

   2. (2)

      Four offences of intentionally choke without consent contrary to s 37(1A) of the Crimes Act (counts 4, 6, 8 and 10). The maximum penalty for each offence was 5 years’ imprisonment; and

   3. (3)

      Two counts of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act (counts 7 and 9). The maximum penalty for each offence was 5 years’ imprisonment.

4. [4]

   The offences were committed over a nine-month period from April 2022 to January 2023 and arose from nine separate incidents.

5. [5]

   The sentencing judge additionally found the respondent guilty of two counts of common assault against the victim contrary to s 61 of the Crimes Act (sequences 7 and 9). These were related offences which were before her Honour pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). The maximum penalty for each related offence was 2 years’ imprisonment.

6. [6]

   On 28 April 2025, the sentencing judge imposed the following sentences:

   1. (1)

      In respect of counts 1, 2, 3, 5, 8, 9 and 10, the sentencing judge imposed an aggregate term of imprisonment of 5 years and 3 months with a non-parole period of 3 years and 3 months commencing on 29 November 2024. The non-parole period expires on 28 February 2028, and the aggregate term expires on 28 February 2030.

   2. (2)

      In respect of counts 4 and 6, the respondent was sentenced to a Community Corrections Order (“CCO”) for a period of 12 months, commencing on 28 April 2025 and expiring on 27 April 2026.

   3. (3)

      In respect of each of count 7 and sequences 7 and 9 on the s 166 Certificate, the respondent was sentenced to a CCO for a period of 9 months, commencing on 28 April 2025 and expiring on 27 January 2026.

7. [7]

   In each case, the CCO will expire prior to the expiration of the non-parole period of the aggregate sentence.

8. [8]

   In the notice of appeal filed on 26 May 2025, the Crown relied on the following grounds of appeal:

9. [9]

   On 15 July 2025, the Crown sought leave to rely on the following two additional grounds of appeal:

10. [10]

    The Crown contends that the sentence imposed on the respondent was attended by both patent error (grounds 3 and 4) and latent error in the form of manifest inadequacy (grounds 1 and 2).

Factual background

1. [11]

   On sentence, the sentencing judge was required to make factual findings as to each of the offences consistent with the jury’s verdicts. These findings were largely based on the document prepared by the Crown titled “Annexure A: Crown findings of facts”. As the sentencing judge acknowledged in her remarks (at [12]), the respondent largely accepted those facts in his written submissions and her Honour addressed any factual disputes in her sentencing reasons. Relevantly, the Crown did not challenge any of the factual findings as a ground of appeal in this Court. I propose to summarise the facts of the respondent’s offending according to the findings of the sentencing judge and deal with any asserted omissions from these findings when considering the grounds of appeal.

2. [12]

   On 1 May 2014, the victim moved from Iraq to Australia. She married in 2007, had three children, two sons and a daughter, separated in late 2017/early 2018 and then divorced in 2021. A friend subsequently suggested that she should correspond with the friend’s brother, the respondent, who lived in Canada and was looking for a partner. The respondent was also born in Iraq and had emigrated to Canada. He was divorced and had children as well. His parents and other family members resided in Australia. The victim and the respondent started communicating with each other on Facebook and later agreed to marry.

3. [13]

   The respondent arrived in Australia from Canada on a spousal visa on 18 March 2022. The victim and the respondent were married in a civil ceremony on 24 April 2022. At the time of the offending, the victim was aged between 34 and 35 years old and the respondent was aged between 47 and 48 years old.

4. [14]

   Counts 1 and 2 took place on or about 27 April 2022, which was three days after the respondent and the victim were married.

5. [15]

   The respondent and the victim were lying next to each other in bed. The respondent kissed the victim, who told him, “I’m on my period”. He lay on top her and said, “it’s fine, its normal, but a lot of women do it in your situation. It’s fine”. The respondent sat on top of the victim and pulled her pyjamas and underclothes down. The victim tried to push him away, but the respondent laid on top of her and opened her legs by force. The victim tried to hold her sanitary pad in place, but the respondent took it off and pushed his penis into her vagina.

6. [16]

   The victim cried and tried to push him away, saying, “It’s hurting. I’m going to, I’m going to have bleeding”. The victim was unable to push the respondent off her. Each time she tried to move, he pushed his body on her with force. The victim estimated that the penile/vaginal intercourse occurred for five to eight minutes (count 2).

7. [17]

   The respondent took his penis out of the victim’s vagina. He lifted her legs up close to her head and inserted his penis into her anus. The victim said that she “lost it” and was crying so much that the respondent covered her mouth with his hand. The respondent thrust his penis into the victim’s anus for approximately two or three minutes (count 1).

8. [18]

   On 1 or 2 May 2022, less than a week after the commission of counts 1 and 2, the victim was lying on her side on the bed in their bedroom. The respondent laid behind her and hugged her, telling the victim, “I’m not going to do anything to you, I’m not going to have sex with you”. The respondent then pulled her pants down and put his penis on her, rubbing and touching her from behind. The victim said, “Don’t hurt me”. The respondent said, “I’m not going to have sex with you”. The respondent then put his penis into the victim’s anus. The victim screamed and the respondent handed her a bedcover to muffle her screaming. The respondent had penile/anal intercourse with the victim for approximately eight or nine minutes before he ejaculated into her anus.

9. [19]

   In September 2022, the respondent wanted the victim to accompany him to a social event with his brother, Badeel, and another woman. The victim told the respondent that she did not want to go out. The respondent became angry and told her, “Get up and change”. When she insisted that she did not want to go out, the respondent threw a hairbrush in her direction. He then came towards the victim, covered her mouth and pressed on her throat with strength. The victim could not breathe and tried with all her strength to move. She felt like she was going to die. When the respondent eventually removed his hands, the victim coughed. Her neck was red. The respondent said words to the effect of, “Sorry, I didn’t mean to choke you. You made me angry”.

10. [20]

    On 7 or 8 October 2022, the respondent went out at night. When he returned home, the victim was asleep. The respondent told the victim that he wanted to watch her have sex with his brother, Badeel. The victim became angry at this request. She said, “You’re not a man. No man does this. You’re not a man”. The respondent then put his hands around the victim’s neck and choked her. The respondent took off the victim’s clothes and underwear. He lifted her legs up and forced his penis into her vagina. The victim cried and pushed the respondent. The victim described it as lasting for seconds. The respondent did not ejaculate on this occasion.

11. [21]

    On 23 December 2022, the respondent asked the victim to go to the beach with him and his brother, Badeel. The respondent wanted the victim to wear a short dress without any underwear. When the victim refused, the respondent became angry with her, and they started arguing. The victim said words to the effect of, “Is there a man that agrees with his wife to go out like this?” The respondent then choked the victim. The victim said it was the strongest time that he had choked her. The victim said her breath was cut off and she felt like she was going to die. When the respondent removed his hands, the victim coughed and felt dizzy. The victim said she could not speak for two days (count 6), although the sentencing judge did not accept that this was established beyond reasonable doubt.

12. [22]

    The victim then went into her son’s room and locked the door behind her. The respondent followed her and “opened the door with a knife”. He told the victim, “Get up and come with me”. The victim refused, telling the respondent that she had her phone on charge and that she was not getting up. The respondent picked up the phone charging cable and hit her across her neck and chest in a downward motion. This caused her chest to bleed and left a red mark which lasted for a week (count 7). The victim took a photograph of her chest.

13. [23]

    This offence occurred the morning after counts 6 and 7, on 24 December 2022. The victim went to the respondent’s mother’s house in Liverpool. The victim cried hysterically and told the respondent’s mother about the choking, the violence and the respondent’s demands for her to wear short clothes. When the victim returned home, the respondent grabbed her between her right elbow and shoulder and pushed her away. He said, “Why are you going to complain to my family? Do you want us to fight?” The respondent further told the victim, “I will kill you if you call my parents and tell them anything”.

14. [24]

    On 8 or 9 January 2023, the victim and the respondent were sitting at the kitchen table about to have lunch. The victim’s five-year-old daughter was told by the respondent, “Didn’t I tell you to not come and sit next to us to eat, to eat before us? Just sit in the living room”. The victim said to the respondent, “You’re stupid. You don’t have mercy. You’re crazy”. She went to get a glass of water. The respondent stood up and choked the victim “with all his strength”. The respondent said, “If you call me crazy, I’ll kill you”. The victim’s daughter stood screaming in the living room facing the kitchen.

15. [25]

    On 19 or 20 January 2023, the respondent approached the victim and begged her to have sex with his brother Badeel. The victim became angry and pushed the respondent. The respondent then pushed her “harshly” and “violently”. The victim alleged that the respondent then tried to “rape” her.

16. [26]

    At approximately 1:00am on 23 January 2023, the respondent returned home after being out with his brother, Badeel. He got very close to the victim and told her, “My brother will die for you and I wish, I wish even if you want we can do it at, at my brother’s house”. The victim wanted to record the respondent asking her to sleep with his brother, so she had put her mobile phone next to her head and recorded the respondent. The respondent noticed that she was recording and began to argue with her, asking how she was recording. The respondent forcefully kicked the victim in the back and thigh with all his strength. These kicks caused the victim to fall off the bed (count 9).

17. [27]

    The respondent left the room and entered the victim’s son’s room. The respondent demanded the victim’s son to answer him, “What is this recording? What is this recording that she’s recording?” The respondent then returned to the bedroom he shared with the victim. The victim promised him that she just had the one recording. The respondent ran to the victim and used both hands to choke her. She hung halfway down the bed. The victim said that it felt like he used all his strength. The respondent was repeatedly saying, “I swear to god I’ll kill you” as he choked her. The respondent’s grip was strong on her neck, and the victim could not swallow her saliva. The victim felt like she was going to die. The respondent choked her for some seconds. The victim started coughing. Although she wanted to cry, she could not (count 10). Following the assault, the victim felt “unbelievable pain”. When she moved, it caused pain in her back which reached her leg. The victim noticed that a day or two later, there was blueish bruising on her leg, which she photographed.

18. [28]

    The victim gave evidence that her son and the respondent’s son came into the room after this incident and that her son asked, “What’s wrong with her?” (This evidence was set out in the Crown’s Annexure A, but it was not included in the sentencing judge’s summary of the facts.)

19. [29]

    The proceedings on sentence took place on 14 March 2025. The Crown sentence bundle comprised the indictment, the s 166 Certificate, limited Agreed Facts from the trial proceedings, the respondent’s criminal and custodial histories, and a Victim Impact Statement prepared by the victim. The Crown also separately tendered the Sentencing Assessment Report dated 10 March 2025 (“the SAR”). As mentioned above, the Crown provided a document entitled “Annexure A: Crown findings of facts” along with its written submissions on sentence.

20. [30]

    The respondent did not give evidence at his proceedings on sentence. Rather, he relied on the following documents to establish mitigating factors on sentence:

    1. (1)

       Psychological report prepared by Carlos Camacho dated 28 February 2025;

    2. (2)

       Letter from Dr Moataz Shaghi dated 12 December 2024 regarding the poor mental and physical health of the respondent’s father;

    3. (3)

       Letter from Dr Shatha Al-Attiyah dated 16 December 2024 regarding the poor mental and physical wellbeing of the respondent’s mother;

    4. (4)

       Letter from Rishama Salah Chohili, religious leader of the Sabian Mandaean Community in Australia, dated 6 March 2025; and

    5. (5)

       Letter from Rabi Khaldoon, chairperson of Mandi Yehia Youhanna Mandaeans Worship place in Australia, dated 6 March 2025.

21. [31]

    The applicant also relied on written submissions on sentence.

22. [32]

    Given that ground 4 challenges the sentencing judge’s finding about prospects of rehabilitation, it is pertinent to set out the evidence addressing that issue.

23. [33]

    The SAR contained material relevant to the respondent’s prospects of rehabilitation and risk of reoffending.

24. [34]

    Under a heading “Attitudes” the following was noted:

25. [35]

    Also in the SAR, under a heading “Domestic Violence” the following was noted:

26. [36]

    Also in the SAR, under a heading “Sex offending” the following was noted:

27. [37]

    Also in the SAR, under a heading “Insight into impact of offending” the following was noted:

28. [38]

    Finally, under a heading “Risk assessment” it was noted that using the risk assessment tool Level of Service Inventory – Revised (LSI-R) the respondent was assessed as a Medum-Low risk of reoffending but that assessment was overridden by Community Corrections having regard to the STATIC 99 risk assessment. Accordingly, the respondent was assessed as having a T3/Medium risk of reoffending.

29. [39]

    In the psychologist’s report prepared by Carlos Camacho dated 28 February 2025, the following was reported under a heading “Mental Status Examination”:

30. [40]

    Under the heading “Summary of Incident”, it was simply noted that the respondent was facing charges to which he had pleaded not guilty.

31. [41]

    Under the heading “Impact of Custody on Mental Health”, it was reported:

32. [42]

    Under a heading “Treatment Needs and Recommendations”, it was reported that:

33. [43]

    Under a heading “Psychological Treatment Requirements”, the following was reported:

34. [44]

    The respondent told Mr Camacho that he had a “close bond” with his family members.

35. [45]

    Apart from the above extracts, there were no references to the respondent’s risk factors nor any expert opinion as to the respondent’s risks of reoffending or prospects of rehabilitation.

36. [46]

    In addition, two character references were tendered. One was from Rishama Salah Chohili, the religious leader of the Sabian Mandaean Community in Australia. He knows the respondent through the Mandaean Community in “Australia/Sydney”. He also knows his family. He stated that since the respondent arrived in Australia, he “always tried his best to help as a volunteer in the Mandi (Temple) and offer to give his help whenever he could, while also participating in our community social gatherings, religious ceremonies and events”.

37. [47]

    The other character letter was provided by Rabi Khaldoon, Chairperson of Mandi Yehia Youhanna (the Temple). He had known the respondent since he was a child in Iraq and described him as a person of good character who “consistently demonstrated his compassion by attending [the Temple] multiple times, where he participated in baptisms, prayer, and voluntarily assisted the staff to support his community members”. He also stated that he was shocked to hear of the allegations as he knows the respondent to be a “quiet, peaceful person who avoids conflict and aggression. He is well respected, and I can personally vouch for his kind and respectful nature.”

38. [48]

    In its written submissions, the Crown submitted that while the respondent’s familial support is a positive factor, the respondent was being supported by these family members throughout the period of his offending behaviour. The Crown pointed to the victim’s evidence that she complained to the respondent’s mother about his violence. The Crown submitted that the respondent has no mental health issues, substance or alcohol dependence issues, or any deprivation in his background that could explain why he did what he did.

39. [49]

    Significantly, the Crown submitted that the respondent’s lack of remorse and insight into his offending impacts adversely on his prospects of rehabilitation and risk of reoffending.

40. [50]

    The respondent’s then counsel did not submit to her Honour that she would make a finding of good prospects of rehabilitation. Rather, he made the following submission on that issue:

Remarks on sentence

1. [51]

   The sentencing judge reserved her decision and delivered her remarks on sentence on 28 April 2025. It is necessary to set out her Honour’s findings in some detail for two reasons. First, most of the submissions in this Court were directed at specific findings made by the sentencing judge. Secondly, this Court will need to have regard to the findings made by the sentencing judge, excluding those which are challenged in this Court, in the event of re-sentence.

2. [52]

   Her Honour first discussed the purposes of sentencing as expressed in s 3A of the Sentencing Act. In relation to the offences for which the respondent was to be sentenced, her Honour observed (at [10]):

3. [53]

   Before turning to consider the objective seriousness of each offence, the sentencing judge first noted the factors relevant to the categories of offences generally (at [48]-[49]):

4. [54]

   Her Honour then considered the objective seriousness of each offence.

5. [55]

   The victim gave evidence at trial that the respondent had ejaculated into her anus. The sentencing judge was not satisfied beyond reasonable doubt of this because of what her Honour perceived to be inconsistency in the victim’s evidence at trial about which episode of intercourse occurred first as between count 1 (anal intercourse) and count 2 (vaginal intercourse). Instead, her Honour accepted the respondent’s submission that ejaculation was not an available factual finding (at [56]-[57]).

6. [56]

   The sentencing judge found that the respondent had actual knowledge of the victim’s lack of consent in relation to both counts 1 and 2 (at [53]). In relation to count 1 (the penile/anal intercourse), her Honour noted that the victim had cried so much that the respondent covered her mouth with his hand and continued to sexually assault her. Her Honour found, however, that “the degree of force applied by [the respondent] does not appear to be beyond what was required to gain submission from the victim” (at [55]).

7. [57]

   Her Honour assessed the objective seriousness of both counts 1 and 2 as falling “below the mid-range of objective seriousness” for this kind of offence, noting “the wide range of offending that can constitute offences of this kind” (at [58]).

8. [58]

   The sentencing judge found that there was “little planning” and the offending was impulsive, but that it was also deceitful as the respondent had reassured the victim that he would not have sex with her.

9. [59]

   The sentencing judge found the objective seriousness of count 3 to be “below the mid-range”, but more serious than the earlier act of penile anal intercourse (count 1) by reason of its duration (at [59]). The victim gave evidence that the respondent ejaculated. That aspect of the proposed facts was not challenged as an available finding but her Honour did not mention the ejaculation as part of her assessment of objective seriousness for count 3.

10. [60]

    Her Honour noted the Crown submission that the offence was “objectively serious” and the respondent’s submission that the offence fell at the “lower end of objective seriousness, including because the incident lasted only seconds, and the offender stopped”. Her Honour also noted the respondent’s submission that there was “no corroboration as to the victim’s injuries” and “contrary evidence from the doctors about what occurred when she visited them”. Her Honour then made the following finding (at [62]-[63]):

11. [61]

    The sentencing judge found that the respondent had actual knowledge that the victim did not consent, “given the force used and the preliminary conversation”. However, she took into account that the offending was “fleeting”, lasting for only seconds, and that the respondent did not ejaculate. Her Honour found the objective seriousness for count 5 to be “comfortably below the mid-range” (at [65]).

12. [62]

    The sentencing judge considered the respondent’s submission that, contrary to the victim’s evidence, she would not find that the victim could not speak for two days after the choking. Her Honour noted that there was evidence which was inconsistent with the victim’s account, including her visits to medical practitioners, and that she had herself said that she talked to her son and the respondent immediately after the choking incident. Her Honour concluded that she was not satisfied beyond reasonable doubt that the victim “suffered the lasting effects she stated she had”.

13. [63]

    The sentencing judge noted the Crown submission that count 6 is “very objectively serious”, that she was choked because she refused to do what the respondent ordered her to (wear a revealing short dress to the beach), that the victim described the force used as “the strongest out of all the occasions he had choked her”, and that she gave evidence that “her breath was completely cut off for some time”. The sentencing judge found that the choking, “while strong, occurred for only a few seconds” (at [68]) and went on to assess the objective seriousness of count 6 to be “in the low range” (at [69]).

14. [64]

    The sentencing judge noted that as a result of being struck with the charger cable the victim’s chest bled and she was left with a small wound which was captured in exhibit E (the photo that the victim took of her chest). The red mark lasted for approximately one week. Her Honour observed that the incident “must have been a frightening experience for her, but it was not repeated”. Her Honour found that the injury was “not significant”, leaving a red mark which was not lasting (at [70]).

15. [65]

    Her Honour took into account that this offence involved the use of a weapon (the cable), but she stated that she “has not lost sight of the fact either that an assault without weapon can be significantly more brutal than one with a weapon of the type used in this case” (at [72]).

16. [66]

    Her Honour concluded this in relation to count 7 (at [71]):

17. [67]

    The sentencing judge found the objective seriousness of sequence 7 to be in the low range. She considered that the verbal death threat accompanying the physical assault “makes the offence more frightening and more objectively serious” (at [73]).

18. [68]

    The sentencing judge found the objective seriousness of sequence 9 to be at the bottom of the range (at [78]).

19. [69]

    The sentencing judge accepted the Crown’s submission that the presence of the victim’s five-year-old daughter aggravated the offence. However, she described the offending as “momentary”. Her Honour found count 8 to fall in the low range of objective seriousness (at [76]).

20. [70]

    In relation to count 9 (AOABH), her Honour noted the parties’ submissions. The Crown submitted that both counts were “very serious” and inflicted as an act of rage and retribution when the respondent realised that the victim was recording him in the context of him asking her to sleep with his brother. The respondent had submitted that it fell to the lower end of objective gravity. Her Honour noted that the violence inflicted in count 9 included forceful kicks to the victim’s back and thigh which caused her to fall off the bed and that she sustained visible bruises to her leg. Her Honour found that it fell “below the mid-range of objective seriousness” and that it was not prolonged and the injuries were not long lasting.

21. [71]

    As for count 10, her Honour noted that the choking was accompanied by considerable force as the victim hung off the bed and that the respondent repeatedly threatened to kill her as he choked her. Her Honour noted that the victim estimated that it lasted some seconds and she felt like she was going to die. Her Honour found that that offence fell “below the mid-range of objective seriousness”.

22. [72]

    The sentencing judge considered the fact that the offences were committed in the home of the victim as an aggravating factor pursuant to s 21A(2)(b) of the Sentencing Act but qualified that finding as follows (at [84]):

23. [73]

    In relation to other aggravating factors, her Honour stated at [85]:

24. [74]

    Pursuant to s 21A(3)(e) of the Sentencing Act, the sentencing judge took into account as a mitigating factor that the respondent had no prior criminal convictions. Her Honour found that it was of “significant weight” that the respondent came before the Court at the age of 51 years, “having led a crime free life” (at [89]).

25. [75]

    The sentencing judge further found that the respondent was a person of good character as a factor in mitigation pursuant to s 21A(3)(f) (at [90]). Her Honour found that he was well regarded by his family and community and was an active participant in his religious community, being the Mandaean Community. She also took into account that the respondent led a “crime-free prosocial life” prior to this offending (at [91]).

26. [76]

    The sentencing judge noted that the respondent was 48 years old at the time of offending and 51 years old at the time of sentencing. He was born in Iraq where he completed secondary education and studies in music at college. He immigrated to Canada where he was employed for many years. He then immigrated to Australia on 18 March 2022. Prior to his incarceration, he was employed as a barber. Two of his children, aged 19 and 22, resided in Australia. A third child lived in Canada with his mother.

27. [77]

    Her Honour noted evidence as to the poor health of the respondent’s parents. His father was confined to a wheelchair, and his mother had a serious heart condition. There was evidence from medical practitioners that they were unable to visit the respondent in custody due to their multiple comorbidities. This separation was said to be impacting their mental state negatively. The sentencing judge noted that the impact upon the respondent’s family was taken into account in the general mix of subjective matters.

28. [78]

    Her Honour noted the psychologist’s report and that the respondent had not previously engaged with mental health services for any psychological symptoms. The respondent did not exhibit any abnormal thought contents or perceptual abnormalities during his assessment. There was no evidence that the respondent had any psychological or mental health issues, aside from the distress and anxiety experienced in relation to the trial and incarceration. The respondent did not have substance or alcohol issues. Her Honour then said this (at [101]):

29. [79]

    As will be discussed further below, Mr Camacho did not in fact mention at any stage of his report that Mr Sabbah had positive prospects for rehabilitation.

30. [80]

    The sentencing judge considered the factor of the risk of reoffending (s 21A(3)(g)) and the prospects of rehabilitation (s 21A(3)(h)) together. The latter of these factors is the subject of ground 4.

31. [81]

    The following factors were considered by the sentencing judge:

    1. (1)

       The respondent previously led a pro-social life and was supported by his family. The offending was described as out of character for the respondent, which her Honour accepted (at [104]);

    2. (2)

       There was no evidence of psychological or mental health issues predating issues experienced in custody and the respondent did not have substance or alcohol issues (at [105]);

    3. (3)

       The respondent was assessed as being a medium to low risk of reoffending by the Community Corrections Office (at [107]);

    4. (4)

       The opinion of Mr Camacho in his psychological report was that the respondent had positive prospects of rehabilitation “due to his willingness to improve his circumstances and manage his psychological challenges” (at [101], [108]). However, her Honour noted that Mr Camacho’s report did not explicitly address the respondent’s attitude to the offending;

    5. (5)

       The respondent expressed a willingness to undertake intervention by the Community Corrections Office, which was said to support “his willingness to be rehabilitated” (at [109]).

32. [82]

    Her Honour noted the Crown’s submission that the respondent’s comments to the author of the SAR sought to not only deny the offence but to apportion blame upon the victim herself, demonstrating a lack of insight (at [106]). However, her Honour did not indicate whether she accepted or rejected this submission.

33. [83]

    Her Honour concluded the following as to the respondent’s risk of reoffending and prospects of rehabilitation (at [110]):

34. [84]

    The sentencing judge made reference to the totality principle and noted that public confidence in the administration of justice requires sentencing courts to avoid “any suggestion of a discount for multiple offending”.

35. [85]

    Her Honour concluded the following (at [114]) as to accumulation and totality:

36. [86]

    Her Honour noted that for the offences of sexual intercourse without consent in counts 1, 2, 3 and 5, there was an applicable SNPP of 7 years’ imprisonment. Her Honour explained her reasons for deviating from the SNPPs in respect of those counts which included that (at [122]):

37. [87]

    The sentencing judge found special circumstances on the basis that a longer period on parole would allow for more supervision in order to “reduce the prospects of recidivism which underlying factors will not be able to be addressed during his time in custody” (at [123]). The ratio of the head sentence to non-parole period was 61.9%.

38. [88]

    The sentencing judge imposed the following indicative sentences:

    1. (1)

       For count 1 – 3 years’ imprisonment with a non-parole period of 1 year and 10 months;

    2. (2)

       For count 2 – 2 years and 8 months’ imprisonment with a non-parole period of 1 year and 8 months’ imprisonment;

    3. (3)

       For count 3 – 3 years’ imprisonment with a non-parole period of 1 year and 10 months;

    4. (4)

       For count 5 – 3 years’ imprisonment with a non-parole period of 2 years;

    5. (5)

       For count 8 – 6 months’ imprisonment;

    6. (6)

       For count 9 – 6 months’ imprisonment; and

    7. (7)

       For count 10 – 8 months’ imprisonment.

39. [89]

    As outlined above, the aggregate sentence was 5 years and 3 months’ imprisonment with a non-parole period of 3 years and 3 months commencing on 29 November 2024. The CCOs imposed were for a period of 12 months for counts 4 and 6, 9 months for count 7, and 6 months for sequences 7 and 9 on the s 166 Certificate.

Crown appeals: Principles

1. [90]

   The relevant principles governing this appeal are well established. I recently discussed these principles in R v Bui [2025] NSWCCA 114 at [176]-[185] and I repeat that summary, as relevant, below.

2. [91]

   The primary purpose of Crown appeals brought under s 5D of the Criminal Appeal Act was described by Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at 310; [1977] HCA 44 as being to:

3. [92]

   In Everett v The Queen (1994) 181 CLR 295; [1994] HCA 49 (“Everett”), Brennan, Deane, Dawson and Gaudron JJ referred to this passage and observed (at 300):

4. [93]

   In Everett, McHugh J described the role of Crown appeals against sentence in this way (at 306):

5. [94]

   The relevant principles have been summarised in numerous decisions of this Court. One such example is R v Sara [2020] NSWCCA 119, where the principles were summarised by Harrison J (as his Honour then was) (Bathurst CJ and Hoeben CJ at CL agreeing). In addition to the principles I have already set out above, his Honour observed the following (at [99]):

6. [95]

   The principles applicable to a contention that an aggregate sentence is manifestly excessive were explained by Beech-Jones J (as his Honour then was) (Payne JA and Fagan J agreeing) in Lee v R [2020] NSWCCA 244 at [32] as follows:

7. [96]

   In Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81, Beech-Jones CJ at CL (with whom Garling and Yehia JJ agreed) noted that the same principles apply when the complaint is of manifest inadequacy, stating the following (at [54]):

8. [97]

   In this case, the Crown submits that the appeal is brought for the purpose of laying down principles of law for the guidance of sentencing courts in respect of serious offences of domestic violence, in particular the offences contrary to s 37(1A) of the Crimes Act, the sentencing for which has not yet been the subject of appellate consideration. The Crown further submits that the Court should intervene because the sentence imposed on the respondent is so far below the range of sentences that could justly be imposed that it is likely to undermine public confidence in the proper administration of criminal justice.

Grounds 3 and 4: Patent error

1. [98]

   As was the approach taken by the Crown, I propose to consider grounds 3 and 4, which allege patent error, first before considering the grounds that assert manifest inadequacy.

2. [99]

   It is well established that the characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge: Mulato v R [2006] NSWCCA 282 (and the numerous cases which have followed it). It is necessary to show error of the type identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 before this Court will intervene. As Gleeson JA explained in Magro v R [2020] NSWCCA 25 (“Magro”) at [31]:

3. [100]

   It is to be accepted that the sentencing judge presided over the respondent’s trial and thus was able to assess the victim and the respondent giving evidence. It has been observed that the difficulties inherent in this Court intervening with respect to the assessment of objective seriousness of offending are heightened where there has been a trial and the sentencing judge has been able to assess the evidence of the witnesses: Baines v R [2016] NSWCCA 132 per Basten JA at [15]; Magro per Gleeson JA at [29], R v Sharrouf [2023] NSWCCA 137 (“Sharrouf”) per Price J at [161]. The respondent relied on this high test and submitted it had not been met in this appeal.

4. [101]

   Counts 4, 6, 8 and 10 were all offences contrary to s 37(1A) of the Crimes Act. This ground of appeal requires this Court to consider and determine how objective seriousness should be assessed for offences contrary to that provision.

5. [102]

   Section 37 of the Crimes Act establishes three offences involving choking, suffocation and strangulation as can be seen from its terms:

6. [103]

   Section 37(1A) was enacted by the Crimes Legislation Amendment Bill 2018 (NSW). It is clear that this provision was introduced to address a lacuna or gap in the law. In GS v R; Director of Public Prosecutions (NSW) v GS (2022) 107 NSWLR 618; [2022] NSWCCA 65 (“GS”), Payne JA (with whom Rothman and Harrison JJ agreed) discussed the legislative purpose of this provision as follows:

7. [104]

   Payne JA also extracted relevant portions of the second reading speech introducing s 37(1A) (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 17 October 2018 at 2) including the following (at [48]):

8. [105]

   Unlike the other sub-sections of s 37, an offence under s 37(1A) does not “require proof of injury or any other outcome lasting after or arising as a result of the act of choking” (GS at [63]). In GS, this Court made a declaration that “intentionally chokes” within the meaning of s 37(1A) means “intentionally apply pressure to the neck so as to be capable of affecting the breath or the flow of blood to or from the head” (at [106]).

9. [106]

   In support of its contention that it was not open to the sentencing judge to make the impugned findings of objective seriousness for the four choking, suffocation or strangulation offences (hereinafter the “choking” offence(s)), the Crown submitted that her Honour failed to have regard to material considerations and, in some instances, considered irrelevant considerations. Given that this ground of appeal challenges four separate findings and that some of the complaints made are common to all grounds, I propose to first address some general principles applicable to assessing objective seriousness for an offence contrary to s 37(1A) before turning to consider each of the four impugned findings in turn.

10. [107]

    The offence created in s 37(1A) of the Crimes Act is a relatively new one. There has been little consideration in this Court of the relevant factors a sentencing judge should have regard to when assessing the objective seriousness of such an offence. I accept the following factors identified by the Crown to be a non-exhaustive list of relevant factors to be considered when assessing the objective seriousness of an offence contrary to s 37(1A):

    1. (1)

       The nature of the relationship between the respondent and the victim, including that the conduct is domestic violence perpetrated on an intimate partner;

    2. (2)

       The purpose or motivation for the conduct and whether the offence was committed in order to scare, coerce or control the victim;

    3. (3)

       The force of the choking, suffocation or strangulation including the degree to which the victim was deprived of the ability to breathe;

    4. (4)

       The duration of the offending;

    5. (5)

       Any circumstances of humiliation or degradation accompanying the act; and

    6. (6)

       Whether the offending caused any symptom or injury that persisted after the conduct ceased.

11. [108]

    As for factor (4), the duration of the offending, it is pertinent to note that the offence created by s 37(1A) does not have as an element that the choking is so severe that it causes the victim to lose consciousness or be rendered insensible or incapable of resistance. That is an element of the more serious offence caught by s 37(1) of the Crimes Act. Thus, the offence created by s 37(1A) captures offending where the degree and duration of the force, even at its most severe, falls short of causing the victim to lose consciousness, be rendered insensible or become incapable of resistance.

12. [109]

    It follows that if a victim describes being unable to breathe (as the victim did for count 8) or unable to swallow her own saliva (as the victim did for count 10), that is conduct which falls towards the more serious end of objective seriousness of the offence contrary to s 37(1A). Once the victim is rendered incapable of resisting, for example, then the offence falls into the more serious category of an offence under s 37(1). Similarly, given that a person can lose consciousness from choking in a relatively short period of time, the fact that the choking was only for a matter of seconds does not mean that it is not a serious example of this offence if, for example, the degree of force was severe.

13. [110]

    It was submitted on behalf of the respondent that an offence under s 37(1A) could “in theory” include conduct that renders the victim unconscious, insensible or incapable of resistance (the consequences specified for an offence under s 37(1)) in cases where the mental element falls short of recklessness (an element of s 37(1)). It was ultimately conceded, appropriately, that this could only arise in very rare cases. Senior counsel for the respondent made the following submissions: [1]

14. [111]

    As for the context in which the choking occurred, the fact that an offence contrary to s 37(1A) occurred in the context of a domestic relationship is a highly relevant factor. When an offender exerts pressure with both hands to a victim’s throat, that victim becomes powerless to the offender and is cognisant that the offender could end their life at any moment by restricting their breathing. For a person to commit such a potentially dangerous act as a means of control over their domestic partner is a serious abuse of trust and a betrayal. As the second reading speech clearly stated, the new offence was created specifically with domestic violence offending in mind.

15. [112]

    Her Honour made no reference to the domestic nature of the relationship between the respondent and the victim when assessing the objective seriousness of any of the four choking offences. Senior counsel for the respondent disputed this by identifying the separate portion of the sentencing remarks in which her Honour noted at the outset that the choking offences were “domestic violence related” (at [10]). The respondent also relied on the fact that the sentencing judge observed that she would take into account “all the facts and circumstances of the case” when assessing objective seriousness (at [49]). I have extracted those passages above at [53].

16. [113]

    It is to be accepted that her Honour noted the need for general deterrence when sentencing for domestic violence offending generally at the commencement of her reasons, but she made no reference to the nature of the relationship between the victim and the respondent when assessing the objective seriousness of each choking offence. Even when her Honour’s reasons are considered as a whole, I am not satisfied that her Honour appreciated the significance of the relationship between the respondent and the victim to the assessment of the objective seriousness of each of the choking offences.

17. [114]

    I turn then to consider each of the four findings in turn.

18. [115]

    Her Honour made no reference to the fact that the act of choking, which established count 4, was accompanied by the throwing of a hairbrush at the victim nor to the fact that the respondent covered her mouth and persisted in continuing to choke the victim despite her attempts to move away from him.

19. [116]

    No reference was made to the motivation for the conduct. The respondent choked the victim because she did not want to go to a social event with his brother. His motivation was to scare, coerce or control the victim. Nor was any reference made to the fact that she said she could not breathe. Although the victim’s evidence was that her neck was red when the respondent removed his hands, the sentencing judge was not satisfied that the offending was such as to cause redness or soreness.

20. [117]

    After this first act of choking the respondent said words to the effect of, “Sorry, I didn’t mean to choke you. You made me angry”. I accept the Crown submission that the sentencing judge erred by taking this “apology” into account to reduce the objective seriousness of the choking. There are a number of difficulties with this finding by her Honour. First, the fact that after an offence of domestic violence an offender apologises to the victim may be a mitigating factor on sentence in that it could establish remorse, but it does not reduce the objective seriousness of the offending. Secondly, apologising to a victim of domestic violence at the same time as telling her that it was her fault he choked her because she made him angry is not a genuine apology in any event; rather, it reflects the victim blaming catchphrase commonly associated with domestic violence offenders of, “look what you made me do”. Further, and related to the supposed apology, is the fact that the respondent showed no remorse at all, a matter I will consider further under ground 4.

21. [118]

    I am satisfied it was not open to her Honour to find that the objective seriousness of count 4 was in the “low range” of objective seriousness.

22. [119]

    This act of choking followed the victim’s refusal to wear a short dress and no underwear to the beach with the respondent’s brother after the respondent had already asked her to have sex with his brother. Her breath was cut off and she described feeling like she was going to die. When he removed his hands, she coughed and felt dizzy. Although her evidence was that she could not speak for two days, the sentencing judge did not believe her. The sentencing judge made no reference to the purpose or motivation for the conduct nor that it occurred in the domestic context. Although there was some reference made to the force used, her Honour found that the offence fell in the “low range” due to its short duration.

23. [120]

    I am satisfied it was not open to her Honour to find that the objective seriousness of count 6 was in the “low range” of objective seriousness.

24. [121]

    This offence of choking took place at the kitchen table when the respondent and the victim were about to have lunch. It followed the respondent telling the victim’s young daughter that she was not allowed to sit with them to eat and picking her up and telling her to go to the living room. When the victim was critical of him for this (including describing him as “crazy”), he choked her “with all his strength” and said to her, “if you call me crazy, I’ll kill you”. The victim’s daughter was screaming as she watched this.

25. [122]

    The sentencing judge made reference to the fact that this choking occurred in the presence of a child but made no reference to the fact that it was an act of domestic violence nor to the purpose or motivation for the conduct. Although there was some reference made to the force used, her Honour reduced the objective seriousness due to the short duration.

26. [123]

    I am satisfied it was not open to her Honour to find that the objective seriousness of count 8 was in the “low range” of objective seriousness.

27. [124]

    This incident of choking occurred after the respondent realised that the victim was trying to record him asking her to have sex with his brother. This count was accompanied by threats to kill the victim and also occurred in the vicinity of the victim’s son and the respondent’s son, who observed the aftermath of the assault. Her Honour made no reference to them being nearby when this offence occurred. Her Honour also made no reference to the purpose or motivation for the conduct nor to the fact that it occurred in a domestic context. Although there was some reference made to the force used, the seriousness was minimised due to the short duration.

28. [125]

    I am satisfied it was not open to her Honour to find that the objective seriousness of count 10 fell “below the mid-range” of objective seriousness.

Conclusion: Ground 3

1. [126]

   I would uphold ground 3.

2. [127]

   The Crown contended that the finding of the sentencing judge that the respondent had “good” prospects of rehabilitation pursuant to s 21A(3)(h) of the Sentencing Act was not reasonably open on the evidence. The primary complaint is that the sentencing judge reached this finding without any consideration of the respondent’s absence of remorse or insight, as demonstrated by evidence in the SAR and despite the concession of counsel for the respondent in the proceedings on sentence. It was submitted that rehabilitation requires consideration of matters specific to the nature of the offending, and not simply a general finding that a person will once again be of good character.

3. [128]

   The respondent submitted that the evidence available on sentence was capable of justifying her Honour’s finding, even if there were countervailing considerations of an absence of insight and remorse. In particular, reliance was placed on the respondent’s lack of prior convictions, his age, his history of employment, and his family support.

Consideration: Ground 4

1. [129]

   The error relied upon by the Crown under this ground was a challenge to a factual finding by the sentencing judge. The weight of authority in this Court is that the test to be applied when considering such a ground is whether the impugned finding was open on the evidence before the sentencing judge: O’Donoghue v R (1988) 34 A Crim R 397 at 401 (“O’Donoghue”). There has been some doubt raised about the approach in O’Donoghue in the decisions of Clarke v R [2015] NSWCCA 232; 254 A Crim R 150, and Hordern v R [2019] NSWCCA 138; 278 A Crim R 353. As I observed in Gibson v Regina [2019] NSWCCA 221 at [61]:

2. [130]

   A five judge bench of this Court is presently reserved on the question as to the correct test to be applied when considering a ground such as this. Both the Crown and the respondent agreed that, in the circumstances, this Court should proceed on the basis that the applicable test is the stricter test of whether the relevant finding was open to her Honour. I propose to do so but note that, on the facts in this case, the result would have been the same applying either test.

3. [131]

   Turning to her Honour’s reasoning, it should be noted that in addition to finding that the respondent’s prospects of rehabilitation were “good”, her Honour also found that the respondent’s risk of reoffending “given the right levels of intervention” would be “reduced”. No ground of appeal is directed at the finding as to the risk of reoffending. Although questions of whether an offender is unlikely to reoffend (s 21A(3)(g) of the Sentencing Act) and whether the offender has good prospects of rehabilitation (s 21A(3)(h) of the Sentencing Act) are distinct matters, they share much in common. As Price J observed in Zuffo v R [2017] NSWCCA 187 at [48], an “assessment that an offender is unlikely to reoffend is commonly linked to a favourable finding that the offender has good prospects of rehabilitation”.

4. [132]

   It has long been recognised that a factor that is important to considerations of both an offender’s risk of reoffending and their prospects of rehabilitation is the extent of their remorse for their actions. Simpson J, as her Honour then was, (with whom Hoeben CJ at CL and Johnson J agreed) explained it this way in Stojanovski v R [2013] NSWCCA 334 at [41]:

5. [133]

   The significance of evidence of remorse to the determination of an offender’s prospects of rehabilitation was emphasised by the Court (Spigelman CJ, Whealy and Howie JJ) in R v MAK & MSK [2006] NSWCCA 381; 167 A Crim 159 (“MAK & MSK”) where their Honours observed the following at [41]:

6. [134]

   Although it may be difficult to make a positive finding of rehabilitation in the absence of remorse, there is no prohibition on doing so. In Alseedi v R [2009] NSWCCA 185 (“Alseedi”), Giles JA (with whom Hidden J and McCallum J, as her Honour then was, agreed) upheld a ground of appeal contending that the sentencing judge erred in finding no good prospects of rehabilitation based solely on the offenders’ lack of remorse, observing at [65]:

7. [135]

   As for the types of evidence which might be relevant to such a finding, in Elyard v Regina [2006] NSWCCA 43, Basten JA (with whom Howie and Hall JJ agreed) identified (at [19]) the following as bearing on a finding of rehabilitation:

8. [136]

   To some extent there is a tension between the observation in Alseedi that an offender is not “automatically deprived” of a finding of good prospects of rehabilitation unless they acknowledge their guilt and the observation in MAK & MSK that without “true remorse” it is difficult to see how a finding of, inter alia, “good prospects of rehabilitation” could be made. This tension was identified by Johnson J (with whom Hodgson JA and Rothman J agreed) in BP v R [2010] NSWCCA 159 at [84] where his Honour observed the following:

9. [137]

   Although it can be difficult to conclude that an offender has good prospects of rehabilitation when innocence is maintained, it seems to me that such a finding might be able to be made when an offender is remorseful for their conduct but denies liability for the offence. Another example would be where an offender has insight into how the victim might be affected by such conduct even though they maintain their innocence. A further example could be where the offender’s risk factors are clearly identified and able to be addressed. Each case will turn on its own facts but given the recognised difficulty in making such a finding in the face of a complete lack of remorse, there needs to be clear evidence upon which to base such a finding.

10. [138]

    It is significant that at the respondent’s proceedings on sentence the Crown had submitted that the respondent’s lack of remorse and insight into his offending impacted adversely on his prospects of rehabilitation and risk of reoffending. The respondent did not submit to the contrary (as extracted above at [50]). That position is unsurprising given that the evidence before the sentencing judge relevant to such a finding was as follows:

    1. (1)

       The respondent showed no remorse;

    2. (2)

       The respondent attempted to blame the victim (in the SAR);

    3. (3)

       The respondent minimised the offending (in the SAR);

    4. (4)

       The author of the SAR observed that the respondent appeared to “lack an in-depth understanding of respectful relationships as he viewed verbal outbursts as ‘nothing out of the ordinary’”;

    5. (5)

       The author of the SAR observed that the respondent was unable to demonstrate any insight into the impact on the victim;

    6. (6)

       The respondent was assessed as having a T3/Medium risk of reoffending using the STATIC 99 risk assessment which overrode the LSI-R assessment of Medium-Low risk of reoffending;

    7. (7)

       The psychologist’s report did not address the questions of risk of reoffending or prospects of rehabilitation. It appears to have been prepared at a time prior to the verdict and simply noted that the respondent defended the charges;

    8. (8)

       The psychologist’s report focussed on how anxious the respondent was in custody, suggested that he undertake Cognitive Behaviour Therapy (CBT) to help with this and noted that the respondent was willing to undergo such treatment;

    9. (9)

       The psychologist described the respondent as having “normal” thought form and no “perceptual abnormalities”;

    10. (10)

        The respondent has no mental health issues, substance or alcohol dependence issues, or any deprivation in his background that could explain why he did what he did;

    11. (11)

        The respondent volunteered at his Mandaean Temple (including during the period of his offending);

    12. (12)

        The respondent was close to his family but, as the Crown submitted to the sentencing judge, he had their support during the time of the offending, and it did not act as a protective factor. In fact, after the victim complained to the respondent’s mother about his violence the conduct continued;

    13. (13)

        The respondent was unemployed at the time of the offending as he suffered from shingles, but he had been employed in the past; and

    14. (14)

        The respondent had no prior convictions and was of good character.

11. [139]

    In finding that the respondent had “good” prospects of rehabilitation, her Honour found that the offending was "out of character" (at [104]). The adverse observations in the SAR were referred to but not addressed (at [106]). The assessment of medium risk of offending was noted but not addressed as was the respondent’s willingness to obtain treatment for his anxiety and depression in custody. Her Honour referred to the treatment for his custody induced anxiety as “rehabilitation programs” (at [110]).

12. [140]

    At [101], her Honour observed that the psychologist “noted that Mr Sabbah has positive prospects for rehabilitation due to his willingness to improve his circumstances and manage his psychological challenges”. This was inaccurate; the psychologist had made no reference to the respondent’s prospects of rehabilitation either way, he had simply noted that the respondent was willing to obtain psychological help for his anxiety and depression caused by his (on the respondent’s view - wrongful) incarceration given that this anxiety had arisen for the first time after the incarceration.

13. [141]

    In making the finding that the respondent’s prospects of rehabilitation were “good”, her Honour did not identify any risk factors or how they could be met. Although it is to be accepted that a finding of good prospects of rehabilitation could be made in the absence of any remorse, it is difficult to see how such a finding can be made when there is no identification of the relevant risk factors.

14. [142]

    I am satisfied that it was not open to her Honour to make the finding she did, and I would uphold this ground as well.

Ground 1

1. [143]

   Ground 1 asserts that the aggregate sentence imposed with respect to counts 1, 2, 3, 5, 8, 9 and 10 is manifestly inadequate. The Crown submits that latent error in the sentencing process is disclosed by both manifestly inadequate indicative sentences and a manifestly inadequate aggregate sentence.

2. [144]

   While accepting that the aggregate sentence was lenient, the respondent submitted that it was not manifestly inadequate. Favourable features of the respondent’s subjective case were identified, including his lack of previous convictions, his family connections and his history of employment and community engagements. The psychological distress experienced by the respondent in custody was also emphasised.

Consideration: Ground 1

1. [145]

   I have already summarised the relevant principles above at [90]-[97].

2. [146]

   In turning first to consider whether the indicative sentences for the four sexual assault offences are manifestly inadequate, it should be recalled that the maximum penalty for these offences is 14 years’ imprisonment and the SNPP is 7 years’ imprisonment. The respondent’s subjective case was not particularly strong and there was no evidence of remorse. I have already determined that the finding of good prospects of rehabilitation was not open. The respondent’s moral culpability was not reduced on either the principles derived from Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”) or Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”). Against that background, the respective indicative sentences were as follows.

3. [147]

   As for count 1 (penile/anal intercourse knowing the victim was not consenting a few days after they were married), the offence involved the respondent thrusting his penis into the victim’s anus for approximately two or three minutes whilst she was crying so much that the respondent covered her mouth with his hand. The indicative sentence was 3 years’ imprisonment with an indicative non-parole period of 1 year and 10 months following a plea of not guilty. That is a significant departure from the statutory guideposts of the maximum penalty and SNPP. The finding of objective serious for this domestic violence offence was “below the mid-range”.

4. [148]

   As for count 2 (penile/vaginal intercourse knowing the victim was not consenting a few days after they were married), this offence involved the respondent pushing himself onto the victim and having penile/vaginal intercourse for five to eight minutes. She was unable to push him off. The indicative sentence was 2 years and 8 months’ imprisonment with an indicative non-parole period of 1 year and 8 months following a plea of not guilty. That is a significant departure from the statutory guideposts of the maximum penalty and SNPP. The finding of objective serious for this domestic violence offence was “below the mid-range”.

5. [149]

   As for count 3 (penile/anal intercourse knowing the victim was not consenting), the respondent had reassured the victim that he was not going to have sexual intercourse with her then inserted his penis into her anus causing her to cry and scream. The respondent gave her a bedcover to muffle her screams. The ordeal lasted eight or nine minutes. The indicative sentence was 3 years’ imprisonment with an indicative non-parole period of 1 year and 10 months following a plea of not guilty. That is a significant departure from the statutory guideposts of the maximum penalty and SNPP. The finding of objective seriousness for this domestic violence offence was “below the mid-range of objective seriousness” but more serious than count 1 because it lasted longer.

6. [150]

   As for count 5 (penile/vaginal intercourse knowing the victim was not consenting), this offence involved the respondent putting his hands around the victim’s neck, pulling her by force, taking off her clothes and ripping her underwear off and forcing his penis into her vagina. It hurt and she was crying. The intercourse did not last long and he did not ejaculate. The indicative sentence was 3 years’ imprisonment with an indicative non-parole period of 2 years following a plea of not guilty. That is a significant departure from the statutory guideposts of the maximum penalty and SNPP. The finding of objective seriousness for this domestic violence offence was “below the mid-range”.

7. [151]

   I note that the indicative sentences for counts 1 and 3 were identical notwithstanding the differences in the facts of offending and the sentencing judge’s finding that count 3 involved more serious offending than count 1.

8. [152]

   Accepting that the appeal is against the aggregate sentence and not the indicative sentences, I am satisfied that these four indicative sentences were manifestly inadequate and may have contributed to a manifestly inadequate aggregate sentence.

9. [153]

   The aggregate sentence was also imposed for count 8 (choking) and count 9 (AOABH), in which indicative sentences of 6 months’ imprisonment were fixed, and count 10 (choking), the indicative sentence for which was 8 months’ imprisonment. I have already found that the assessment of the objective seriousness for counts 8 and 10 was in error which may explain the fixing of these manifestly inadequate indicative sentences.

10. [154]

    Not only am I satisfied that the indicative sentences are manifestly inadequate, I am also satisfied that the extent of notional concurrency in the aggregate sentence is excessive given the offending involved multiple episodes of serious sexual and violent offending. An aggregate non-parole period of 3 years and 3 months and a head sentence of 5 years and 3 months in no way reflects the serous criminality for which the respondent fell to be sentenced.

11. [155]

    I would uphold ground 1.

Ground 2: Counts 4, 6 and 7

1. [156]

   This ground pertains to the CCOs imposed in relation to two of the choking offences and one count of AOABH. The Crown noted that in each case, the CCO will expire prior to the expiration of the non-parole period of the aggregate sentence. Effectively, therefore, it was submitted that these sentences offer no additional punishment for these offences and have no practical effect.

2. [157]

   The respondent submitted that the sentencing judge gave extensive reasons for imposing CCOs, and it was reasonable to infer that the reasons for the absence of any supervision requirement was because her Honour simultaneously sentenced the respondent to a term of imprisonment.

3. [158]

   While accepting that the sentencing judge did not address s 4A of the Sentencing Act discretely, the respondent submitted that this was not an issue pleaded as a separate ground of appeal and compliance with this provision may be found in a reading of the judgment as a whole. A similar submission was made in respect of s 4B of the Sentencing Act.

Consideration: Ground 2

1. [159]

   I have already addressed the seriousness of the two choking offences under ground 3. It may be that her Honour’s erroneous reduction of the objective seriousness of those offences explains, in part, why manifestly inadequate sentences were imposed.

2. [160]

   In imposing CCOs for count 4 (choking), count 6 (choking) and count 7 (AOABH), her Honour did not impose a supervision component.

3. [161]

   Sections 4A and 4B of the Sentencing Act are specifically concerned with domestic violence offences and are in these terms:

4. [162]

   There are a number of difficulties with the imposition of CCOs for counts 4, 6 and 7.

5. [163]

   First, her Honour did not provide any reasons as required by s 4A for her decision that a CCO was a more appropriate sentence than a sentence of full-time detention or a supervised order.

6. [164]

   Secondly, her Honour failed to consider the safety of the victim in imposing the CCOs as required by s 4B(3) of the Sentencing Act. Although it is presumed that her Honour knew that the respondent would be in custody for the full period of the CCO thus the victim’s safety was ensured, that was not articulated.

7. [165]

   Thirdly, in imposing short CCOs of 9 months and 12 months to run at the same time as the aggregate sentence her Honour must have been aware that she was effectively imposing no punishment at all for these domestic violence offences.

8. [166]

   Fourthly, although her Honour noted the Crown submission that the threshold in s 5 of the Sentencing Act had been crossed for all offences and the respondent’s submission that it had not been crossed for some of them (including counts 4, 6 and 7), she made no findings as to why she did not consider the threshold to be crossed for these offences nor did her Honour address the competing submissions.

9. [167]

   Section 5(1) of the Sentencing Act provides that:

10. [168]

    In determining whether the s 5 threshold has been crossed, one of the matters to take into account is whether the sentence imposed satisfies the purposes of sentencing in s 3A of the Sentencing Act relevant in that particular matter as follows:

11. [169]

    It is not apparent why her Honour was satisfied that imposing CCOs for two domestic violence choking offences and one count of AOABH could reflect the purposes of sentencing when in practical terms it was no punishment at all. It is to be accepted that it can be a difficult sentencing exercise when an offender stands to be sentenced on a large number of offences ranging across a broad range of seriousness. But the difficulty of such a task should not lead a sentencing judge to impose a sentence that has no practical effect, particularly for offences of domestic violence.

12. [170]

    Basten AJA considered this question in Huynh v R [2024] NSWCCA 61, albeit in a different factual context, and made the following obiter comments at [60]-[61]:

13. [171]

    One of the cases referred to by Basten AJA in the last sentence of that passage is the decision in R v RJ [2023] NSWCCA 273. That appeal involved the re-sentencing of an offender for 23 offences, including numerous child sexual assault offences, but also three common assaults which would not have passed the s 5 threshold had they been dealt with on their own. Indicative sentences of 3 months were fixed.

14. [172]

    For my part, I can see no reason why when sentencing for multiple offences which range in seriousness from high to relatively minor a sentencing judge cannot fix low indicative sentences for the more minor offences and note that significant if not complete notional concurrence for them has been applied. To do otherwise means that there has been no punishment for them at all which would not reflect the purposes of sentencing.

15. [173]

    I am satisfied that imposing CCOs for these three offences was manifestly inadequate and I would uphold this ground as well.

Conclusion as to error

1. [174]

   I would uphold all four grounds of appeal.

2. [175]

   Before turning to consider whether the residual discretion should be exercised, it is necessary to consider the admissibility of the new material relied upon by the respondent which was objected to by the Crown.

“New” evidence

1. [176]

   The respondent sought to rely on two affidavits said to be relevant to both the exercise of the residual discretion and re-sentence: his own affidavit affirmed on 20 October 2025 and the affidavit of Elizabeth Logan, his instructing solicitor, affirmed on 20 October 2025.

2. [177]

   Although both affidavits largely dealt with the respondent’s progress in custody since sentencing, the affidavit material also included evidence about events prior to sentence which was not relied upon at the time of sentencing. Paragraphs [12] and [19]-[23] of the respondent’s affidavit and Annexure A to the affidavit of Ms Logan, which was a report of a psychologist Diana Grujoska, dated 7 October 2025, raised for the first time that the respondent has symptoms of post-traumatic stress disorder (“PTSD”) as a result of events in Iraq prior to his emigration to Canada; that is, that he had PTSD at the time of the offending. The Crown objected to this new evidence.

3. [178]

   In his affidavit dated 20 October 2025, the respondent simply stated this as to what he told Mr Camacho, the psychologist who prepared the report tendered at his proceedings on sentence (at [12]):

4. [179]

   The respondent deposed that he was born in Iraq in 1974, that he lived through the Gulf War in 1990-1991 which he described as harrowing experience which many of his friends did not survive, and that there was lack of food due to the sanctions imposed on Iraq which caused him to be hungry. People around him were starving. He fled to Syria in 2003 or 2004 where he worked in a supermarket while applying for a refugee status to various countries including Australia and Canada. Canada accepted him, and he and his first wife moved there as refugees in 2009.

5. [180]

   The respondent’s solicitor, Elizabeth Logan, provided an affidavit dated 20 October 2025 with annexures including a report from clinical psychologist Diana Grujoska dated 7 October 2025. Ms Grujoska interviewed the respondent via AVL on 28 August 2025. He reported to her experiencing discrimination and persecution in his childhood and adolescence due to his Mandaean faith. He reported people throwing rocks at him, calling him a “dirty Mandaean” and refusing to touch food he handled. His father, who was a teacher, was unable to intervene for fear of repercussions.

6. [181]

   The family left Iraq for Bulgaria in 1979 but returned to Iraq and relocated to Baghdad in 1981 in order to keep their property from being seized. He reported continued discrimination upon their return. He served in the army between 1996-2000 during which time he witnessed executions including women and children and reported that he continues to experience intrusive memories and nightmares as a result. He was also imprisoned for two months following a dispute with a high-ranking officer during which time he was assaulted, subjected to forced labour, provided inadequate food and made to dig holes under threats of being buried alive. The respondent reported his family emigrating to Australia in 2000 with him remaining in Iraq and working as a jeweller and then fleeing for Syria in 2003, where he ran a supermarket. He reported moving to Canada in 2009 where he worked as a barber before moving to Australia in 2022.

7. [182]

   His medical history includes reported persistent ocular pain and sleep disturbance following contracting shingles while working as a barber in Canada. His mental health history includes reported longstanding psychological symptoms including persistent nightmares, flashbacks, intrusive thoughts, depressed mood and anxiety but denial of self-harm or suicidal ideation. His Justice Health records confirm that he has sought treatment for shingles-related issues and also note recommended monitoring for depression, mood swings, and possible suicidal ideation given his first-time custody status.

8. [183]

   With respect to the psychometric assessment, Ms Grujoska administered PTSD Checklist for DSM-5 (PLC-5) and Depression Anxiety Stress Scales – 21 (DASS-21). Validated Arabic versions were used. It was noted that the PLC-5, a 20 item self-report measure assessing the presence and severity of post-traumatic stress, showed that his overall score supports a diagnosis of PTSD and that the DASS-21, a 21 item self-report instrument measuring the severity of symptoms across depression, anxiety and stress, showed that the respondent’s profile supports a diagnosis of Major Depressive Disorder current/severe, together with Generalised Anxiety Disorder.

9. [184]

   In her summary, Ms Grujoska noted that the respondent’s conditions are highly disabling and significantly increase the hardship he experiences in custody compared to those without these disorders. In terms of treatment, Ms Grujoska opined that the respondent would require a structured multimodal approach for his PTSD and would benefit from trauma-focused cognitive behavioural therapy or eye movement Desensitisation and Reprocessing. For his depression and anxiety, he would benefit from cognitive behavioural therapy in combination with psychiatric input including a coordinated pain management plan for shingles related pain including ophthalmology access.

10. [185]

    The relevant principles pertaining to the admission of new or fresh evidence in sentence appeals were recently considered by Yehia J (with whom Garling and Cavanagh JJ agreed) in Lawavou v R [2025] NSWCCA 35. Her Honour observed the following at [110]-[111], albeit in the context of an appeal by an offender:

11. [186]

    Her Honour noted (at [117]) that the distinction between “fresh” and “new” evidence (in the context of an appeal against sentence) was explained by Hamill J in Barnes v R [2022] NSWCCA 140; 299 A Crim R 483 (“Barnes”) (Gleeson JA and Ierace J agreeing). Hamill J characterised the difference between the two forms of evidence in the following manner at [28]:

12. [187]

    Yehia J contrasted the approach taken by the Court in Barnes with that taken in Khoury v R [2011] NSWCCA 118; 209 A Crim R 509 (Simpson J with whom Davies J and Grove AJ agreed). Her Honour also noted (at [125]) that whether the additional evidence is categorised as “fresh” or “new” evidence, the appropriate test to be applied in considering whether the evidence ought to be admitted is whether the admission of the additional evidence would avoid a miscarriage of justice. This principle is derived from the High Court’s decision in Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 (“Betts”). At [2], French CJ, Kiefel, Bell, Gageler and Gordon JJ set out the general rule for the reception of new evidence in an appeal against sentence:

13. [188]

    The High Court then set out these principles in the context of an appeal against sentence by an offender at [10]-[12]:

14. [189]

    At [14], the High Court rejected the appellant’s submission that once error is shown, new evidence can be admitted for the purpose of re-sentence, and found that an offender will generally be held to their forensic choices:

15. [190]

    The High Court held that whether the power to receive new evidence is conferred by ss 6(3) or 12(1) of the Criminal Appeal Act, “the interests of justice will not usually be served by the reception of new evidence of matters that are the subject of the sentencing court’s unchallenged factual findings” (at [16]).

16. [191]

    These principles were applied in Veljanoski v The Queen [2021] NSWCCA 255 in which the applicant sought to rely upon a psychological report as new evidence on re-sentence in circumstances where the appellant had previously been examined by two psychologists before the sentencing hearing. Davies J (with whom Harrison J (as his Honour then was) and Dhanji J agreed) held at [61]:

17. [192]

    Although these principles are well established, it was common ground that the principles applicable to the admission of new evidence on a Crown appeal have not been the subject of any judicial consideration.

18. [193]

    In R v Deng [2007] NSWCCA 216; 176 A Crim R 1, the respondent in a Crown appeal sought to rely on new evidence which had not been before the sentencing judge. The new evidence conflicted with the agreed facts upon which the respondent had been sentenced. This evidence was not admitted by the Court and James J (with whom Mason P and Hislop J agreed) observed at [48]:

19. [194]

    A further complicating factor is that the power of this Court to receive new evidence is to be found in s 12(1) of the Criminal Appeal Act, which sets out the supplemental powers of this Court. It is, relevantly, in these terms:

20. [195]

    The application of the (italicised) proviso at the conclusion of that sub-section to a Crown appeal does not appear to have been judicially considered before. If the residual discretion is not exercised, then it is inevitable that the sentence will be increased. The respondent relies on this new evidence to mitigate the sentence. But even if the new material does ultimately act to mitigate the higher sentence that would otherwise have been imposed, the question arises as to whether the higher sentence would be imposed “in consideration of” the new material. I shall return to this question further below.

21. [196]

    The respondent relied on Betts and submitted that the Court would receive this new evidence to avoid a “miscarriage of justice”. It was submitted that the principles applicable to appeals by offenders could effectively be transplanted into the context of Crown appeals and that a miscarriage of justice would be occasioned if this Court proceeded to re-sentence without consideration of the new material. It was noted that the respondent was sentenced with very little material about his personal background before he arrived in Australia, and there was no information about the respondent’s life in Iraq presented in either the psychological report of Mr Camacho or the SAR. It was submitted that the respondent’s background was critical to a proper understanding of his subjective case and consideration of it is necessary to administer individualised justice. While it was accepted that an offender should generally be held to forensic choices made at a sentence hearing, the respondent submitted that there is no discernible forensic advantage to be achieved by omitting this information.

22. [197]

    As for the operation of s 12(1) in a Crown appeal, it was submitted that should this Court consider that the new evidence would in fact increase the appropriate sentence to be imposed, the evidence would be inadmissible on that basis.

23. [198]

    The Crown submitted that this is not an “exceptional case” such that this Court would receive the new evidence. It was noted that some of the new material could in fact “cut both ways”. In response to the respondent’s submission that there was no forensic reason to keep this diagnosis from the sentencing judge, it was submitted that there may have been a forensic decision not to rely on a diagnosis of PTSD given that the respondent had the benefit of findings of good prospects of rehabilitation. In reliance on Betts (at [14]), the Crown submitted that the respondent should be held to his forensic choices and not be permitted to “run a new and different case on the question of re-sentence”. It was also submitted that justice would not miscarry simply by this Court’s refusal to receive new evidence when determining the appropriate sentence.

Consideration: “New” material

1. [199]

   It was not suggested by the respondent that the evidence of his pre-existing psychiatric condition was “fresh” evidence. The respondent was aware of his experiences in Iraq and apparently did not tell any of his lawyers, the author of the SAR or Mr Camacho about them even though he was expansive on other topics. It is difficult to accept that neither his psychologist nor the author of the SAR asked him any questions about his life in Iraq. Mr Camacho’s report tendered to the sentencing judge was very detailed and spent some time describing the respondent’s symptoms including his feelings of anxiety and what was causing them. Nor did the character reference tendered on sentence from the close friend who knew the respondent in Iraq make any reference to the respondent suffering from any adverse events at that time.

2. [200]

   A complicating factor is that Mr Camacho did not diagnose any symptoms of PTSD in his detailed report before the sentencing judge; only anxiety and depression. The new report from Ms Grujoska confirms Mr Camacho’s findings in relation to anxiety and depression caused by the custodial environment but goes further to state that the respondent also reported (for the first time) “a lifetime of trauma exposure” which has left him with “persistent nightmares, flashbacks, hyperarousal, avoidance of reminders, low mood, anxiety and poor concentration”. The respondent recounted his symptoms to Mr Camacho. Although he told Mr Camacho about the symptoms consistent with anxiety and depression, he made no mention to him of having “persistent nightmares, flashbacks, hyperarousal, [and] avoidance of reminders”.

3. [201]

   Even allowing for “great latitude” in considering whether this evidence was available “by reasonable diligence”, I am unable to accept that this is fresh evidence. Despite the evidence being new, as Betts makes clear, there is flexibility to receive this evidence where it is necessary to do so in order to avoid unfairness to an offender.

4. [202]

   Having considered the contents of the material closely, I am satisfied that the material is relevant to the question of the exercise of the residual discretion and would cause unfairness to the respondent if it was not admitted. I propose to admit it for that purpose at this stage.

5. [203]

   Error having been established, it is necessary for the Crown to negate any reason why the residual discretion of this Court not to interfere should be exercised: CMB v Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9 (“CMB”) at [34] (French CJ and Gageler J) and at [56] (Kiefel, Bell and Keane JJ).

6. [204]

   Matters relevant to the exercise of the residual discretion include: any delay by the Crown in lodging the appeal (Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (“Green and Quinn”) at [43]); whether the Crown has conducted the case on a different basis from that pursued at first instance (CMB at [65]); whether the respondent’s release on parole is imminent or has already expired (Green and Quinn at [43]); the effect of re-sentencing on the respondent’s progress towards rehabilitation (Green and Quinn at [43]); whether an increased sentence would constitute “tinkering” with the sentence (Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [62]); and/or whether re-sentencing would create a disparity with a sentence previously imposed upon a co-offender (Green and Quinn at [37]).

7. [205]

   The respondent relied upon the following matters in urging the Court to exercise the residual discretion not to intervene in the event that error was established.

8. [206]

   First, it was submitted that the fact that the Crown did not cause the errors complained of is a neutral factor.

9. [207]

   Secondly, it was submitted that the Court would not interfere absent a finding of manifest inadequacy and that success on grounds 3 and/or 4 would be insufficient to warrant this Court’s intervention.

10. [208]

    Thirdly, it was submitted that the Court would not intervene unless the inadequacy was assessed as being so marked as to warrant the Court’s intervention, particularly given the new evidence about his adverse mental state.

11. [209]

    Finally, it was submitted that the evidence as to the respondent’s experiences in custody set out in his recent affidavit is relevant to the residual discretion citing R v Hudson [2024] NSWCCA 238 at [70]. The respondent emphasised the likely detrimental impact that an increased sentence would have upon his rehabilitation. At the hearing of the appeal, the Crown accepted that the respondent’s experiences in custody were relevant to the residual discretion.

12. [210]

    The Crown submitted that the significant disparity between the sentence imposed, and the objective seriousness of the offences is such that the residual discretion should not be exercised. It was submitted that the intervention of this Court in re-sentencing was necessary to give effect to the purposes of sentencing in the context of domestic violence offending.

13. [211]

    It was also submitted that guidance could be provided in this case as to sentencing for serious domestic violence offending and the factors relevant to the assessment of objective seriousness in respect of offences contrary to s 37(1A) of the Crimes Act. The Crown noted that the error of the sentencing judge was not caused or contributed to by the Crown at first instance, nor was there any delay in instituting the appeal.

14. [212]

    I have considered these submissions, and I am satisfied that the Crown has established that the residual discretion should not be exercised in this matter.

15. [213]

    There was no delay on the part of the Director in bringing on this appeal. The respondent’s current release date is not until 2028. No conduct of the Crown led to the manifestly inadequate sentence. I am satisfied that all four grounds of appeal have been established.

16. [214]

    I accept that the respondent has had a difficult time in custody, and he continues to suffer from poor mental and physical health. Those are matters relevant to re-sentence but are not such as would lead the Court to decline to intervene to re-sentence the respondent. I am satisfied that the inadequacy of the sentence is so marked to amount to an affront to the administration of justice.

Re-sentence

1. [215]

   The first question is whether I would admit the recent material on the question of re-sentence. As stated above, I am not satisfied that there has been a satisfactory explanation why this material was not before the sentencing judge, so its admissibility turns on whether I am satisfied that it would cause a miscarriage not to have it before the Court. This requires a consideration of its potential relevance.

2. [216]

   Although there was a detailed report from Mr Camacho tendered at the proceedings on sentence, as the sentencing judge noted (at [105]), there was no evidence before her Honour that the respondent suffered from “any psychological or mental health issues other than that (sic) appear to be related to the experience of the trial and incarceration”. The new evidence suggests for the first time that Mr Camacho overlooked that the respondent also suffers from symptoms of PTSD caused by his experiences in Iraq before he emigrated to Canada.

3. [217]

   It was accepted on behalf of the respondent that Ms Grujoska’s capacity to examine any link between the offending conduct and the respondent’s background was “hamstrung” by the respondent’s maintenance of his innocence during the assessment as well as the fact that Ms Grujoska saw him for the first time after he entered custody by which time he had developed mental health issues due to his incarceration. Despite this, it was submitted that the principles derived from both Bugmy and De La Rosa were applicable. As for the former, it was submitted that the Court would find that the respondent’s moral culpability was reduced on Bugmy principles. As to the latter, it was submitted that a custodial sentence may weigh more heavily on the respondent on account of his mental illness.

4. [218]

   As for the relevance of the respondent’s experiences in Iraq, the respondent relied on the following oft cited statement of Simpson J (as her Honour then was) in R v Millwood [2012] NSWCCA 2 (“Millwood”) at [69]:

5. [219]

   Similarly, Simpson AJA later observed the following in R v MJ [2023] NSWCCA 306 at [5]:

6. [220]

   The difficulty with reducing the respondent’s moral culpability based on the new material is that other material already before the Court points to the fact that, prior to the commission of these offences, the respondent was a man of good character, always employed, respected in his local community, and a volunteer at his local temple. He was described by his friend Rabi Khaldoon, who knew him as a child in Iraq, as “empathetic”, demonstrating “compassion”, “peaceful”, “well respected”, a person who “avoids conflict” and having a “kind and respectful nature”. There is no evidence before the Court, to suggest that, prior to this offending, the respondent had no “moral compass”, that he could “not make behavioural decisions in accordance with prevailing social norms” or that he had “fewer emotional resources to guide his behavioural decisions”.

7. [221]

   Further, although it is to be accepted that a person with a deprived background may not exhibit symptoms until late in life, the respondent’s continued denial of the offences means that the relevance of his experiences in Iraq to his offending behaviour remains unknown.

8. [222]

   The significance of a finding of reduced moral culpability is that it may lead to a finding that the sentencing purpose of general deterrence carries less weight in this sentencing process. That reflects an understanding that a person who has reduced moral blameworthiness for an offence is not a good vehicle to be used as an example to deter others, for the reasons explained by Simpson J in Millwood. But even when the significance of general deterrence is reduced for a person who has had their moral culpability reduced, it may mean that other factors such as community protection and recognition of harm to the victim may have more significance.

9. [223]

   A further difficulty with the submission that I would reduce the significance of general deterrence is that this is a domestic violence case. As the sentencing judge observed, general deterrence has particular significance in sentencing for domestic violence offences. Adamson J, as her Honour then was (with whom Garling J and I agreed), considered this issue in Kennedy v R [2022] NSWCCA 215 (“Kennedy”) at [43] as follows:

10. [224]

    The reference by Adamson J to the decision of the High Court in Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 includes the passage at [54] as follows:

11. [225]

    I propose to admit the new material on re-sentence as it does provide background material that was not before the sentencing judge. As for the diagnosis of PTSD, I am not satisfied that it establishes that the respondent’s moral blameworthiness is reduced given its conceded limitations and the other evidence before the Court. Rather, I propose to take it into account in the way explained in Dungay v R [2020] NSWCCA 209 at [153]:

12. [226]

    During the hearing of this appeal, it was suggested that the respondent’s recent diagnosis of PTSD might to some extent explain his violent outbursts to the victim, and be a potential risk factor for further offending. I do not propose to make such a finding on re-sentence for two reasons. The first is that it would be speculative on the basis already explained and secondly, because there is the risk that it might contravene the proviso in s 12(1) of the Criminal Appeal Act.

13. [227]

    Otherwise, in re-sentencing the respondent, I would adopt the findings of the sentencing judge with the following exceptions.

14. [228]

    First, I would re-assess the objective seriousness of the choking offences as being more serious than the findings made by the sentencing judge consistent with ground 3 being upheld. I have identified the factors relevant to my consideration of the objective seriousness of each of the choking offences under ground 3 above and do not repeat them here.

15. [229]

    Although there is no requirement to assess the objective seriousness of an offence by reference to a notional range, (see for example the discussion in Dorsett v R [2024] NSWCCA 192 at [149]-[155]), I have adopted the sentencing judge’s assessment of objective seriousness for the other offences as they were not challenged by the Crown. They were all assessed by reference to a range, so I propose to adopt the same course in the interests of consistency. I would assess them as follows:

    1. (1)

       Counts 4 and 6: mid-range.

    2. (2)

       Counts 6 and 8: slightly above mid-range.

16. [230]

    Secondly, I would not find that the respondent has “good” prospects of rehabilitation reflecting my finding under ground 4. Nothing in the new material tendered on re-sentence changes the import of the material I have summarised above at [32]-[47] in a manner favourable to the respondent. The recent diagnosis of PTSD does not assist the respondent on this discrete finding, but I have not had regard to it. I do have regard to the fact that the applicant will be older when he is released. Based on his absence of prior convictions, his risk appears to be confined to offences of domestic violence. The new evidence suggests that his shingles, which had caused him to be unemployed at the time of the offending, remains unresolved but on the other hand, he describes being employed in custody. I consider the respondent’s prospects of rehabilitation to be somewhat guarded.

17. [231]

    Thirdly, I am prepared to accept that the respondent’s time in custody has been particularly onerous due to his mental state and his shingles diagnosis. The stress has been compounded by his immigration status and his disrupted connection to his family, particularly his elderly parents. I would mitigate the sentence on this basis.

18. [232]

    Fourthly, although the sentencing judge imposed CCOs for five of the 12 offences (counts 4, 6 and 7 as well as sequences 7 and 9 on the s 166 Certificate), I propose to fix short indicative sentences for those offences and allow for considerable notional accumulation (in relation to sequences 7 and 9 in particular) for the reasons explained above at [170]-[172].

19. [233]

    Finally, I consider it relevant to re-state some of the relevant principles when sentencing for serious domestic violence offences. The respondent’s motivation appears to have been a desire to control and dominate his wife. This Court has repeatedly noted the seriousness of such conduct, as discussed in Sharrouf at [180]-[186].

20. [234]

    In R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551, Wood CJ at CL said at 558 [41]:

21. [235]

    In R v Hamid [2006] NSWCCA 302, Johnson J said at [86]:

22. [236]

    In Cherry v R [2017] NSWCCA 150, Johnson J observed the following at [78]:

23. [237]

    Similarly, in Yaman v R [2020] NSWCCA 239, Wilson J emphasised the entitlement of women to lead a life of their own choosing. Her Honour said at [135]:

24. [238]

    Although I have adopted the sentencing judge’s assessment of objective seriousness for the sexual assault offences (they were not the subject of challenge in this court), I note that one of the bases upon which her Honour reduced the objective seriousness of those offences is that they were not planned. Sentencing judges should exercise caution in mitigating a domestic violence offence on that basis, particularly when the offending is ongoing, for the reasons explained by Adamson J in Kennedy at [51]:

25. [239]

    I find that special circumstances exist that justify a variation in the statutory ratio between the aggregate non-parole period and the balance of the term of the aggregate sentence for the same reasons as the sentencing judge, namely, his age and that this is his first time in custody. The need for treatment confirmed in the recent material before the Court is a further basis to do so.

26. [240]

    In assessing the indicative sentences, I have fixed an appropriate sentence for each offence and considered questions of concurrence and totality. I confirm that I have allowed for only negligible accumulation in relation to sequences 7 and 9.

27. [241]

    I would fix the following indicative sentences of imprisonment:

    1. (1)

       Count 1: 5 years; NPP 3 years 6 months

    2. (2)

       Count 2: 4 years 6 months; NPP 3 years

    3. (3)

       Count 3: 5 years 3 months; NPP 3 years 6 months

    4. (4)

       Count 4: 18 months

    5. (5)

       Count 5: 4 years; NPP 2 years 9 months

    6. (6)

       Count 6: 18 months

    7. (7)

       Count 7: 12 months

    8. (8)

       Count 8: 2 years

    9. (9)

       Count 9: 18 months

    10. (10)

        Count 10: 18 months

    11. (11)

        Sequence 7 (s 166): 1 month

    12. (12)

        Sequence 9 (s 166): 1 month

Orders

1. [242]

   Accordingly, I would propose the following orders:

   1. (1)

      The appeal is allowed.

   2. (2)

      The aggregate sentence of imprisonment imposed by David DCJ in the District Court of New South Wales on 28 April 2025 is quashed.

   3. (3)

      The five Community Corrections Orders are quashed.

   4. (4)

      In lieu of all of the above, the respondent is sentenced to an aggregate term of 9 years’ imprisonment consisting of a non-parole period of 6 years commencing on 29 November 2024 and expiring on 28 November 2030 with a balance of term of 3 years commencing on 29 November 2030 and expiring on 28 November 2033.

   5. (5)

      The earliest date that the respondent will be eligible to be released on parole is 28 November 2030.

2. [243]

   SWEENEY J: I agree with N Adams J.