Wood v R

HOEBEN CJ at CL:

The offence of murder has a maximum penalty of life imprisonment and a 20 year standard non-parole period. The offence of knowingly contravene an AVO attracts a maximum penalty of 2 years imprisonment and/or 50 penalty units.

Taking into account the Form 1, his Honour imposed a sentence with a non-parole period of 19 years 1 month, commencing 30 September 2017 and expiring 29 October 2036, with a balance of term of 6 years and 5 months expiring on 29 March 2043.

His Honour allowed a 25 per cent discount for the applicant’s early plea. The starting point before discount was 34 years imprisonment. The ratio of the non-parole period to the head sentence was slightly below three-quarters, i.e. 74.8 per cent.

The applicant sought leave to appeal on seven grounds:

The facts giving rise to the offence were set out in a “Proposed Facts Documents” which was not challenged. It was common ground that the sentencing judge accurately summarised the factual background in his Reasons for Sentence (Reasons).

On 5 October 2018 Russell Brian Wood (the applicant) pleaded guilty to a charge that on 30 September 2017, at Whalan in the State of NSW, he murdered the deceased. That is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The Crown did not submit that a life sentence was appropriate.

At the time of the offending, the applicant was 26 years of age and the deceased was 34 years of age. The deceased was the mother of five children, ranging in ages from 18 to 6. The three youngest children lived with her.

The applicant and the deceased had been in what was described as an “on again/off again relationship” since approximately October 2015. The relationship was characterised by domestic violence. On a number of occasions, family members and friends had observed the deceased to have injuries including black eyes and bruising to her arms. The deceased told family and friends that the applicant was responsible for these injuries and that he had put his hands around her throat on a number of occasions. On one particular occasion in July 2016, an ambulance and police were called to the deceased’s home. The deceased was transported to hospital with injuries to her head and face. The deceased’s 14 year old daughter was present on that occasion and had witnessed part of this assault. The deceased presented at hospital with swelling and bruising on her forehead, right cheek and right parietal area and a laceration to her lower lip.

Approximately a week before the deceased’s death, her relationship with the applicant had once again ended. The deceased travelled with her three youngest children to stay with friends for the week. Despite the cessation of their relationship, the deceased and the applicant kept in contact during that time.

On the afternoon of 29 September 2017, the applicant finished work and attended a hotel at Parramatta where he consumed alcohol. While he was there, he spoke to the deceased who was returning home from the Central Coast. The deceased had become lost, a matter about which she and the applicant commenced arguing. She nevertheless made arrangements to collect the applicant from Mount Druitt Railway Station. After doing so, the deceased and the applicant went to a bottle shop and purchased alcohol, before going to the deceased’s home where they commenced drinking.

At 8:42pm, the deceased called a taxi which arrived at her home at 8:50pm. She and the applicant then travelled to “Uncle Bucks Tavern” in Mount Druitt, arriving at about 8:55pm. CCTV footage, taken from inside the taxi on the way to the tavern, showed that the applicant and the deceased were apparently in good spirits. Observations made by staff at the tavern were to a generally similar effect. Both were in the poker machine area at times, and during the period in which he was at the tavern, the applicant withdrew a total of $500 from a nearby ATM. The applicant was obviously consuming alcohol.

The applicant left the tavern by himself at about 11:06pm. He arrived at the deceased’s home at some time before midnight. The deceased remained at the tavern until about 11:51pm when she departed in a taxi. There was telephone contact between the applicant and the deceased while the deceased was at the tavern on her own, as well as during her journey home.

There were nine calls in total, some of which were answered and some of which were not. They covered the period 11:44pm to 11:54pm. At 11:56pm, the applicant sent his father the following text message:

The deceased arrived home at approximately midnight. At 12:33am, the applicant called triple 0. The call lasted 93 seconds but was not connected to a despatcher.

At 1:36am the applicant called his father and a 54 second connection occurred. The applicant called his father again at 1:39am and a 17 second connection occurred. The applicant’s father said that during these calls, the applicant sounded upset. At one point, the following exchange took place between the applicant and his father:

The applicant’s father arrived at the deceased’s home at about 1:55am. When the applicant opened the door, his father looked into the house and saw the deceased lying on the kitchen floor. He walked inside and saw that deceased’s face and lips were pale and blue. He also saw a wound on the deceased’s ribs, which he described as being “about an inch and a half long”, around which was dried blood. The applicant retrieved a nearby tea towel and placed it on that wound before lying down next to the deceased crying and saying:

When asked by his father whether he had called anyone, the applicant replied:

The applicant’s father then called triple 0. When he returned to the house, he saw a large silver knife in the corner of the kitchen. He left the house and remained out the front until police arrived. During this time, he could hear the applicant crying loudly.

Police arrived at the deceased’s premises at about 2:08am. As they approached the front door, they could hear a person inside yelling. Upon entering the house, they saw the applicant lying on the floor curled up next to the deceased, resting his head on her shoulder and holding the tea towel against her stomach. They noticed that the deceased was very pale and had a wound on the left side of her stomach which was visible when the applicant removed the tea towel. Police also saw a large kitchen knife about a metre away from the deceased’s feet. A trail of smeared blood extended from near the knife to the lower half of the deceased’s body.

At this point, the applicant cried and said:

Police then moved the applicant away from the deceased, at which time he said:

Police removed the applicant from the house and onto the front lawn. Ambulance officers arrived at about 2:11am and commenced CPR. They continued to try to revive the deceased over a period of more than 25 minutes. The deceased was pronounced dead at 2:37am on 30 September 2017.

Once out on the front lawn, police had a conversation with the applicant. It would be fair to say that the transcript of the conversation reflects what could only be described as a high level of disordered thought on the part of the applicant, consistent with his having consumed a large quantity of alcohol.

A further conversation took place concerning the applicant’s drinking earlier that evening:

As police drove away from the deceased’s premises, the applicant began to scream and yell, repeatedly banging his head and fists against the inside of the caged police vehicle. When the vehicle arrived at the police station, the applicant was taken into the custody area where he continued to yell, scream, throw his hands around and bang his head on the walls. After being introduced to the custody manager, the applicant was placed in a cell and could be heard yelling at police. Approximately 45 minutes later, the applicant yelled out:

The applicant then gave police some money and a quantity of cannabis. He continued to violently thrash around in the dock at the police station, repeatedly hitting his head on the perspex wall. The applicant was extremely emotional, his behaviour ranging from displaying violence and aggression, to crying uncontrollably, to pacing within the dock and jogging on the spot. This behaviour continued for some time. At about 3:45am, the applicant said:

At about 5:17am, the applicant stood up and placed both hands on his head and said:

At 5:38am, the applicant said:

Commencing at around 5:45am, the applicant participated in an electronically recorded interview with police. His Honour noted that there were certain aspects of that interview which assumed some importance in the sentence proceedings.

The applicant was questioned about his consumption of alcohol:

When asked by police what he could tell them about the events earlier that morning, the applicant said::

The applicant was then asked how intoxicated he thought he was at the time, to which he responded:

According to the applicant’s account of events, he had walked into the bedroom of the premises where the deceased grabbed a knife from a kitchen drawer and threatened to stab him. He agreed that he was not permitted to be at the deceased’s premises and was then asked:

The applicant was asked about his reaction to alcohol:

The cause of the deceased’s death was a stab wound to the left anterior abdominal wall. The wound track proceeded medially, backwards and downwards, it perforated the skin and subcutaneous tissue of the left anterior abdominal wall, incised loops of the small bowel and transected the abdominal aorta and inferior vena cava immediately before its bifurcation. There were resultant retroperitoneal haemorrhages (accumulation of blood found in the retroperitoneal space), pneumoperitoneum (abnormal presence of air or other gas in the peritoneal cavity), haemoperitoneum (1000 ml) (presence of blood in the peritoneal cavity) and features of hypovolemic shock secondary to blood loss (pale organs and subendocardial haemorrhages in the head).

There was a further stab wound to the deceased’s left anterior chest wall. The wound track proceeded medially, backwards and downwards. It perforated the skin and subcutaneous tissue of the left anterior chest wall and fractured the third left rib.

There was also a focal haemorrhage over the pericardium and injuries to right hand, including:

There were signs of neck compression in the form of abrasions and bruising to both sides of the neck and to the rami of the mandible. In addition, there were facial, oral and conjunctival petechial haemorrhages. There was focal bruising to the platysma muscle and submandibular gland on the right. There were no cervical spine injuries. There were no fractures of the hyoid bone, cricoid cartilage or thyroid cartilage.

On the right side of the neck, there was a wound that consisted of a linear bruise that lay over the sternocleidomastoid muscle, and a horizontal abrasion that extended to the anterior midline and then dipped inferiorly. The total area involved was 80 x 70mm. The linear bruise was approximately 60 x 10mm. The horizontal abrasion in its entirety was 50 x 20mm. The inferior component was 10mm wide and extended 30mm inferiorly. There were petechial bruises over the thyroid cartilage in the midline.

On the left side of the neck, there was a broad band of abrasion and bruising that had a semi-circular configuration. The total surface area involved was 50 x 60mm. The superior bruise was 40 x 30mm and the inferior abrasion was 50 x 10mm.

There was bruising 5 - 10mm over the proximal end of the left clavicle and over the sternal notch, along with numerous other bruises and lacerations to the face, both arms, thighs, shins and feet. These included:

The sentencing judge noted that there were three matters of aggravation, which were not disputed by the parties:

His Honour considered three further matters of aggravation, two of which were in issue and one of which was not. The factor which was not disputed was that the applicant’s record of previous convictions was an aggravating factor of considerable significance. There were four sets of previous convictions, three of which involved episodes of violence and one of which involved threats of violence. The first set occurred in 2010 where the victim of the offending was the applicant’s mother. The offences were:

The applicant was convicted of each offence and was released in respect of each on a bond under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) with conditions. One of those conditions was that he accept supervision and counselling in relation to drug and alcohol rehabilitation.

The next set of offences occurred in 2011. Once again, the victim was the applicant’s mother. He was convicted of the following offences:

The assault involved him slapping his mother about the head on a number of occasions.

The following sentences were imposed as a result of that offending:

The next episode of offending occurred in 2017. On 16 February 2017 an interim apprehended violence order was made for the protection of the deceased. This prohibited the applicant from:

In the early hours of 26 March 2017, police were called to the deceased’s premises where they found the applicant and the deceased shouting at one another in the middle of the street. The applicant was heavily intoxicated at the time.

On 17 May 2017, the applicant appeared at the Mt Druitt Local Court and was fined $800 and placed on a bond pursuant to s 9 of the Sentencing Act for a period of 18 months. The bond was accompanied by a condition that he obey all reasonable directions of the NSW Probation Service in respect of counselling, educational development and drug and alcohol rehabilitation. The previous apprehended violence order was made final.

On 17 May 2017, the applicant appeared in the Mt Druitt Local Court in respect of a charge of using a telecommunications service to harass a person, contrary to s 474.17(1) of the Criminal Code 1995 (Cth). That offence arose out of a series of text messages in which the applicant had threatened to jump on the deceased’s head, break her jaw if she ever came near him, and punch her head in. On that occasion, the applicant was released on a recognisance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). This included a condition that he accept supervision for as long as was considered necessary by the Community Corrections Service, and obey all reasonable directions of that Service in respect of counselling, educational development and drug and alcohol rehabilitation.

His Honour set out his conclusions in relation to the past offending as follows:

One of the matters of aggravation which was in issue was whether the murder of the deceased was associated with gratuitous cruelty. His Honour’s treatment of that issue was as follows:

The other matter of aggravation which was in issue was how the Court should assess the applicant’s state of intoxication. The Crown submitted that the applicant was intoxicated at the time of the offending and that such intoxication amounted to a further aggravating factor. To make out that submission, the Crown relied upon the following:

Counsel for the applicant accepted that the applicant was intoxicated to a significant degree at the time of the offending and also accepted that, if it was established that there was recklessness connected to the ingestion of alcohol which caused the intoxication, then this could aggravate the offending. His Honour noted that counsel for the applicant did not take issue with the fact that the applicant had previously displayed what might be described as “alcoholic tendencies”, nor did he dispute that the applicant’s intoxicated state had contributed to his conduct on this occasion.

While counsel for the applicant did not submit that the applicant’s intoxication was a mitigating factor, he did submit that on the whole of the evidence the sentencing judge could not be satisfied that the conduct which resulted in the applicant becoming intoxicated before his offending was reckless. He submitted that in the circumstances of this case, the applicant’s intoxication was a neutral factor.

His Honour set out his finding in relation to this matter as follows:

His Honour also took into account the report of Ms Duffy where she said:

His Honour set out his conclusion on that issue as follows:

His Honour considered the competing submissions of the Crown and the applicant on the issue of the “seriousness of the offending”. It was the Crown position that the offending was in the mid to upper range of seriousness whereas it was put on behalf of the applicant that the offending was in the mid-range. His Honour set out his conclusions as follows:

His Honour then set out his conclusions in relation to the applicant’s subjective case.

In doing so, his Honour had occasion to consider the applicant’s background.

Before dealing with the particular issues raised by the grounds of appeal, there is an underlying proposition behind most of them. The proposition is that all of the aggravating features identified by his Honour between [52] and [92] of the Reasons go to the objective seriousness of the offending. The applicant submits that this is made clear by par [88] where his Honour said:

That provides the basis for the applicant’s submission that factors such as the applicant being on conditional liberty at the time of the offending and his past criminal record were wrongly taken into account as part of the objective seriousness of the offending rather than features personal to him.

In my opinion, that approach misunderstands the structure of the Reasons. In order to understand that structure, it is necessary to have regard to the way in which the submissions at first instance were made to his Honour. What was identified were matters which the Crown submitted were “matters of aggravation” and should be taken into account as adverse to the applicant. His Honour dealt with those matters individually and where there was a contest, he set out the competing arguments and his conclusion.

Looked at in that way, those particular matters of aggravation should not be considered under the rubric of “matters going to the objective seriousness of the offending” but simply as individual factors which had been put forward by the Crown as matters of aggravation adverse to the applicant. Neither the parties nor his Honour analysed the precise nature of the aggravation since the parties were agreed that if the factors were made out they were adverse to the applicant.

The applicant has placed considerable weight on par [88] of his Honour’s reasons. He submitted that the final sentence (see [64] hereof), when used in a context where the subject matter was the “objective seriousness” of an attack, referred to all of the aggravating factors which his Honour had identified, not just those which were relevant to the seriousness of the offending.

There is an obvious ambiguity in par [88] in that it can be interpreted in either way. If one accepts, however, that what his Honour was doing at that place in the Reasons was looking at individual matters of aggravation on their own and not dealing with them as if they all came under the classification of “the seriousness of the offending”, the alternative interpretation, which refers to only those factors which were relevant to the seriousness of the offending is available and should be preferred.

This is particularly so when regard is had to the written submissions of the Crown on sentence which specifically referred to Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] and were expressed in the following terms:

Once the underlying structure of his Honour’s Reasons is properly understood, then his particular findings of aggravation can be properly assessed without adopting an overly technical or rigid approach as appears to have been done by the applicant.

It is then convenient to deal with the first two grounds of appeal together, which raise similar considerations.

The issue raised by Ground 1 is that his Honour erred by taking into account the applicant’s criminal record as a matter which made the particular offending, i.e. the murder of the deceased, more serious. The applicant relied upon the analysis in R v McNaughton (2006) NSWLR 566; [2006] NSWCCA 242 to support that proposition. There Spigelman CJ (with whom McClellan CJ at CL, Grove, Bell and Barr JJ agreed) identified and discussed the ambiguity of the words “relative seriousness of the offence” and “aggravating factors” as used in s 21A of the Sentencing Act. That case was specifically concerned with whether or not prior offending was an objective circumstances and can therefore be used to assess the objective seriousness of an offence.

To assist in resolving that issue, Spigelman CJ relied upon the joint reasons in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at [14]:

Spigelman CJ further clarified the issue by reference to a quotation from Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 at [14] :

Spigelman CJ provided further clarification by reference to the joint judgment in Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [32]:

These statements of principle highlighted the difficulties created by the ambiguity in the terminology used in s 21A of the Sentencing Act. This was made clear by Spigelman CJ in R v McNaughton as follows:

It is against that background that the applicant submitted that it is clear that it is incumbent upon a sentencing court to explain the manner in which an offender’s criminal record has been taken into account, noting that a passing reference to s 21A(2)(d) is unsatisfactory. To substantiate that proposition, the applicant relied upon the decision of Johnson J (Giles JA and Hoeben J agreeing) in Regina v Walker [2005] NSWCCA 109 at [32]:

The applicant submitted that even if his Honour was using the applicant’s past criminal record, as required by Veen (No 2) v The Queen, he did not explain how that prior criminal record “aggravated the offending” and in failing to do so his Honour erred.

Section 21A(2)(d) provides:

Section 21A(2) reflects the common law principle that while in many cases an offender’s past criminal history will simply disentitle the offender to leniency, in other cases the offender’s past criminal history will be such as to require that greater weight should be given to concepts such as deterrence and the protection of society (Veen v The Queen (No 2)). Accordingly, there can be no issue that the fact that an offender has a lengthy criminal history, particularly for serious personal violence offences, will be relevant to the exercise of the sentencing discretion.

While an offender’s previous criminal history is relevant as a subjective consideration in the determination for the appropriate sentence, it is not to be taken into account in an assessment of the objective seriousness of the offence: Smith v R [2011] NSWCCA 163 at [36]. As this Court (Simpson AJA, Fullerton and McCallum JJ) stated in Elhassan v R [2018] NSWCCA 118 at [14]:

In other words, prior convictions are not relevant to the assessment of the objective seriousness of the signature offence but are relevant to the determination of where a sentence should lie within the boundary set by the objective seriousness of that offence, particularly if the offender has manifested in his commission of the offence, a continuing attitude of disobedience of the law.

In this case, the sentencing judge held:

In challenging this finding, the applicant does not appear to contend that it was not open to the sentencing judge to find that the applicant’s criminal record was a “aggravating factor” within the meaning of s 21A(2)(d) or that it was not open to the sentencing judge to find that the applicant’s criminal history was such as to attract the principles in Veen (No 2) v The Queen. Rather, the applicant’s contention is that the sentencing judge erred by taking into account his criminal history in determining the objective seriousness of the signature offence. Additionally, it was submitted that his Honour erred in not explaining how the applicant’s criminal record was being used.

Contrary to the applicant’s submissions, the sentencing judge did not take the applicant’s prior offending into account when determining the objective seriousness of the offence. Rather, his Reasons, properly construed, indicate that he took into account the applicant’s prior criminal history within the meaning of s 21A(2)(d) of the Sentencing Act and applied the principles in Veen v The Queen (No 2). This can be most clearly understood from his Honour’s focus on the domestic violence aspects of the prior offending.

There was no error in his Honour making a finding that the applicant’s prior criminal history was an “aggravating factor”. His Honour referred to s 21A(2)(d). He was doing no more than using the terminology in the section. His Honour’s finding that the applicant’s criminal record was an “aggravating factor” does not contravene the principles stated in R v McNaughton. It merely states the statutory test.

The sentencing judge’s reference to the absence of dispute that the applicant’s criminal record “aggravates the offending” should be understood in the light of the submissions of the parties at first instance. Significantly, neither the Crown nor the defence contended that the “objective seriousness” of the signature offence was aggravated.

As indicated, the Crown cited Muldrock v The Queen and submitted that the applicant’s record was an “aggravating factor” under s 21A(2)(d) “to be taken into account in determining the appropriate sentence for this offence” because “the offender comes before the Court with a background of intimidation and stalking conduct, domestic acts of violence and contraventions of Apprehended Violence Orders. This offending is all domestic related and his victims have been the deceased and his mother”. In his oral submissions on sentence, the applicant’s counsel agreed that he did not “take issue with any of the statutory aggravating factors relied on by the Crown” (T.17.20, 12.12.2018). Looked at in context, it is clear that both counsel understood the sentencing judge’s reference to the aggravation of the “offending” to be a reference to an increase in the sentence in accordance with s 21A as outlined in the Crown’s written submissions.

The structure of the Reasons indicates that his Honour did not impermissibly take into account the applicant’s criminal history when assessing the objective seriousness of the offence. The Reasons proceeded by way of an introduction, summary of the evidence and analysis of the facts of the offending. His Honour then referred to the statutory aggravating factors under s 21A(2). After summarising each of the statutory aggravating factors, his Honour considered the objective seriousness of the offence in an entirely separate section entitled “The seriousness of the offending” (Reasons [82]-[92]). In that section, his Honour concluded that the objective seriousness of the offending was “above mid-range”.

As already indicated, and contrary to the applicant’s submissions, his Honour’s reference at [88] to “the offending [being] aggravated by a multiplicity of factors to which I have referred” does not indicate that his Honour impermissibly used the applicant’s criminal history to increase the objective seriousness of the offence. This statement was made immediately after the observation that even if one accepted the applicant’s claim that the victim initially came at him with a knife in the kitchen, that “would not detract in any way from the seriousness of his attack on her which reflects a complete lack of respect for life of another human being”. That the “multiplicity of factors” referred to the domestic violence nature of the murder is also confirmed by the sentencing judge’s discussion of domestic violence principles in Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 (at [55]) and Cherry v R [2017] NSWCCA 150, which immediately followed this statement.

The ultimate finding does not indicate that his Honour impermissibly took into account the applicant's criminal history in assessing the objective seriousness of the offence. The sentencing judge assessed the objective seriousness of the offence as being “above the mid-range”. The applicant does not submit that this finding was not open. In all of the circumstances, namely that death was intended, the domestic violence nature of the offence, the fact that the offence was committed in the victim’s home and that a weapon was used, the only appropriate finding was that the objective seriousness of the offence was above mid-range.

This ground of appeal has not been made out.

Behind this ground is the proposition already discussed, i.e. that his Honour took this factor into account when assessing the objective seriousness of the offending. There was no issue that the applicant was on conditional liberty at the time of the offence. He was subject to a s 20(1)(b) Crimes Act 1914 (Cth) recognisance for 18 months, commencing 17 May 2017 and expiring 16 November 2018 and a s 9 Crimes (Sentencing Procedure) Act bond for 18 months, commencing 17 May 2017 and expiring 16 November 2018.

In Hilier v Director of Public Prosecutions (NSW) [2009] NSWCCA 312 at [30] Basten JA (Johnson J agreeing) held that the fact that an applicant was on conditional liberty was a factor to be taken into account when determining the appropriate punishment of an offender rather than the objective seriousness of the offence. To similar effect, this Court (Hoeben CJ at CL, Davies and Adamson JJ) held in TL v R [2017] NSWCCA 308 at [72]:

Relying upon those decisions, the applicant submitted that his Honour had erred in taking into account the fact that he was on conditional liberty as aggravating the objective seriousness of the offence.

Section 21A(2)(j) of the Sentencing Act provides:

As with the applicant’s prior criminal history, the fact that the he was on conditional liberty at the time of the offence is relevant to the determination of the appropriate sentence, but is not to be taken into account in assessing the objective seriousness of the offence. As Simpson AJA held in Turnbull v R [2019] NSWCCA 97 at [17]:

As indicated, the applicant was subject to two bonds at the time of the murder. In respect of these bonds, the sentencing judge observed:

As with the issue of prior convictions, the applicant does not contend that it was not open to the sentencing judge to take the breach of conditional liberty into account “as an aggravating factor”. Rather, the applicant’s contention is that the sentencing judge impermissibly took into account the breach of conditional liberty when determining the objective seriousness of the offence. Properly read, his Honour’s Reasons demonstrate that his Honour did not impermissibly inflate the boundary of a proportionate sentence by reference to the breach of conditional liberty. His Honour did not find that “objective seriousness” of the murder was aggravated by a breach of conditional liberty. Rather, his Honour referred to the breach of conditional liberty as something which “aggravated the offending” citing s 21A(2)(j) of the Sentencing Act.

As already indicated, his Honour’s findings should be understood in the context of the submissions at first instance. The defence written submissions accepted that the breach of conditional liberty was a “subjective aggravating feature”. Again, during the sentence hearing his Honour confirmed with the parties that there was no dispute that this “statutory aggravating factor” applied.

This ground of appeal has not been made out.

The applicant noted that under the heading “The offender’s subjective case” the sentencing judge said:

The applicant submitted that at this stage in his reasons, his Honour had already assessed the objective seriousness of the offence. There had also been a concession by the Crown that “there was no evidence which established that the offending was premeditated”.

There was no issue that the absence of planning was a mitigating factor (as reflected in s 21A(3)(b) of the Sentencing Act). The applicant submitted, however, that its mitigating effect should have been taken into account when his Honour considered the objective gravity of the offending, not when considering the applicant’s subjective case.

It is clear from the terms in which the finding was expressed and its location in the structure of the Reasons that his Honour took it into account as a mitigating factor which favoured the applicant. It is also clear that he took it into account when assessing the applicant’s subjective case. Nevertheless, the Crown submitted that in the circumstances of this case the fact that the offence was not planned did not mitigate the objective seriousness of the offending. The Crown made this submission because of his Honour’s findings as to the applicant’s level of intoxication and because his intoxication was an aggravating factor. The Crown submitted that in those circumstances, it was not surprising that the offence was “unplanned”. The Crown submitted that the absence of planning in this case was immaterial to the seriousness of the offence because what brought about the offence was the realisation of the very risk of violent behaviour of which the applicant was well aware when he consumed large quantities of alcohol.

The distinction sought to be made by the Crown in response to this ground is not supported by the Crown’s written submissions on sentence. In those submissions, the unplanned nature of the offending was included in that part of the submissions which dealt with the applicant’s subjective case.

Quite clearly, the absence of planning is a consideration which goes to the objective seriousness of the offending and was wrongly taken into account by the sentencing judge when considering the applicant’s subjective case. It matters not that its mitigatory effect might have been reduced because of his excessive alcohol consumption. This does not overcome or cancel out the error in approach which the applicant has identified.

This ground of appeal has been made out.

The applicant submitted that although the sentencing judge took into account his violent upbringing, he erred in not making it clear “how” his background was taken into account. The applicant submitted that no reference was made to the potential connection between his moral culpability and his significantly disadvantaged upbringing.

The applicant was implicitly critical of the fact that his Honour did not refer to the detail on this issue contained in Ms Duffy’s report. The applicant noted that the following matters had been identified by Ms Duffy in her report:

The applicant noted the following conclusions of Ms Duffy on this issue:

The applicant submitted that Ms Duffy’s report made it necessary for his Honour to consider his abuse of drugs and alcohol and his engagement in violent behaviour in the context of his experiences as a child, which included exposure to domestic violence and the abuse by both parents of alcohol and other drugs.

The applicant submitted that as was made clear in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 an upbringing of the kind experienced by him may leave a mark on a person throughout life and compromise the person’s capacity to mature and learn from experience. The applicant noted that the court in Bugmy spoke of giving “full weight to an offender’s deprived background in every sentencing decision”.

The applicant relied upon what was said by this Court in Ingrey v R [2016] NSWCCA 31 at [35] to the effect that it will be a matter of evaluation as to what impact Bugmy type considerations will have in the particular case given that (not unlike the situation with respect to mental illness) countervailing considerations “might reduce or eliminate its effect”. Or, as Simpson AJA put it in R v Irwin [2019] NSWCCA 133 at [3]:

The applicant submitted that in the present case his Honour failed to evaluate the impact of the applicant’s significant disadvantage upon his moral culpability and in failing to do so, erred.

In his written submissions on sentence, the applicant’s counsel did not contend that the applicant’s background was such as to attract the Bugmy principle. However, in oral submissions he did so and referred to the applicant’s background as containing “Bugmy type features” without further elaboration (T.27.5, 12.12.2018). In his Reasons, the sentencing judge noted that the applicant’s parents had each, at one stage, been addicted to heroin and had separated when he was young; that the applicant’s father had suffered from alcoholism and that the applicant’s domestic upbringing had been violent. The sentencing judge noted that the applicant had been sent to live with his father and then returned to his mother because of behavioural issues (see [63] hereof).

In respect of the applicant’s work history, the sentencing judge referred to evidence that the applicant had been terminated from employment because of his drinking on a number of occasions. However, on each occasion the applicant appeared to have obtained alternative employment quickly to the point where he appeared to have no real lengthy periods of unemployment. The sentencing judge stated that he had “taken all of the factors bearing upon the [applicant’s] background into account in determining an appropriate sentence.

The plurality in the High Court in Bugmy referred to “profound childhood depravation” and observed that an offender’s “childhood exposure to extreme violence and alcohol abuse” may substantially reduce the offender’s moral culpability for a recourse to violence when frustrated but may also increase the importance of protection of the community (Bugmy at [44] and [46]). Their Honours summarised the offender’s childhood in that case, which included alcohol abuse and violence that were “common place”, he was illiterate, he commenced drinking alcohol and taking drugs at the age of 13, he reported witnessing his father stab his mother 15 times, he and his siblings all had records for violence, his record commencing at age 12, he had spent time in juvenile detention centres and much of his adult life in prison and he gave a history of repeated suicide attempts (Bugmy at [12]).

While the applicant’s upbringing involved exposure to violence and drug and alcohol abuse, it falls short of the “profound childhood deprivation” discussed in Bugmy. Ms Duffy noted that the applicant’s father had stopped drinking and using drugs by the time the applicant was 12 years old. At primary school, the applicant was good at reading and maths and he completed the equivalent of year 10 with a different teaching approach that helped him achieve his certificate and this led to employment opportunities and an apprenticeship.

Nevertheless, although the applicant’s childhood circumstances were not as bad as those of the offender Bugmy, it was certainly a matter which could and should be taken into account by way of mitigation of the applicant’s offending. It provided, at least in part, some explanation for the applicant’s excessive alcohol consumption and his ready resort to violence. That having been said, his Honour referred to all of those matters at [95]-[98] of the Reasons. Most particularly, his Honour said:

It is not suggested that his Honour did not in fact take his background into account as he said. The criticism is that he should have provided much more detail as to how he was going to treat that evidence and specifically refer to the concept of moral culpability.

I am not persuaded that his Honour was required to do any more than he did. It would have been helpful if his Honour had specifically referred to moral culpability and the effect of the applicant’s background on that concept, but his Honour was not in error in failing to do so. It is clear from his Honour’s treatment of the applicant’s background that he was going to take it into account as a matter of mitigation when sentencing the applicant. His Honour in this case was not required to do more.

This ground of appeal has not been made out.

Before leaving this ground, I should say something about moral culpability. In the course of the appeal, it was implicitly suggested on behalf of the applicant that the concepts of objective seriousness and moral culpability were, to some extent, synonymous. I do not agree. My understanding of the concept of moral culpability is that it is a stand alone concept, which like totality and proportionality, can be affected by subjective matters and matters which go to objective seriousness. For example, evidence relating to a deprived and/or violent background clearly raises subjective matters which, as the High Court has pointed out, can influence a finding as to moral culpability. Equally, evidence of such matters as torture, which clearly go to the objective seriousness of the offending, can also influence a finding as to moral culpability.

The specific finding of the sentencing judge which is challenged by this ground is:

The applicant accepted that he had been abusing alcohol for long periods of time and that his criminal record showed that he had engaged in acts of violence when heavily intoxicated as a result of the consumption of alcohol. Nevertheless, the applicant submitted that although he may have been reckless in becoming intoxicated, it did not follow that the offence was thereby aggravated.

The applicant noted that the sentencing judge had referred to R v Coleman (1990) 47 A Crim R 306 where Hunt J (with whom Finlay and Allen JJ agreed) observed at p327 that the degree of deliberation shown by an offender is usually a matter to be taken into account in determining the seriousness of offending, and that intoxication may be relevant to the level of deliberation. Hunt J went on to state:

By reference to that case, the applicant submitted that although he may not have behaved in the manner which he did, had he not been intoxicated, there was no articulation in his Honour’s Reasons of how the fact that he was intoxicated made the actual offending worse. The applicant submitted that when considering his offending behaviour, the Court had appropriately had regard to factors such as the number of blows, the level of violence and aggression, the degree of force used and his loss of control. The applicant accepted that his high degree of intoxication may have explained such actions but submitted that it did not make them worse.

The applicant noted that his Honour’s finding as to intoxication as an aggravating factor was based on the conclusion that he was reckless in becoming intoxicated. He also noted that he was sentenced on the basis that he intentionally inflicted the various injuries and indeed that he intended to kill the deceased. The applicant accepted that because he may have foreseen that he would become violent but nonetheless chose to drink might suggest that the offence was avoidable. He submitted that, nevertheless, he was sentenced on the basis of his voluntary actions accompanied by the relevant intent. That was not aggravated by being avoidable. Put another way, the applicant submitted that his offence would not have been less serious had he acted in the manner which he did while not intoxicated.

The applicant submitted that while his Honour found that he was reckless in his decision to become intoxicated, there was no evidence and no finding that to the extent that any decision was made, it was a rational decision. On the contrary, the applicant submitted that when he abused alcohol on the night of the murder, it was not a rational decision made by him free from the constraints of the abuse suffered early in life. The applicant submitted that to treat his decision to drink as an aggravating factor would fail to have regard to the disadvantage in his background as required by the High Court’s decision in Bugmy.

Accordingly, the applicant submitted that his Honour was in error in finding that the offence was aggravated by his intoxication.

In R v Coleman Hunt J observed that the degree of deliberation by an offender in committing an offence was usually a matter to take into account on sentence. His Honour held that intoxication was relevant to the degree of deliberation, sometimes aggravating the offence due to the recklessness of the offender in becoming intoxicated and at other times, mitigating the crime because the intoxication was out of character.

A deliberate (or reckless) decision to become intoxicated for the specific purpose of becoming aggressive may be an aggravating factor: Mendes v R [2012] NSWCCA 103 at [75]. However, it is not necessary for an offender to have such a specific purpose in order for the intoxication to be treated as an aggravating factor.

In Stanford v Regina [2007] NSWCCA 73 Rothman J (with whom McClellan CJ at CL and RS Hulme J agreed) explained at [56]-[57] that while the offender in that case had become “uncharacteristically drunk” after others mixed alcoholic drinks for him and his intoxication ameliorated what was an irrational reaction towards the victims, including the use of a weapon, nonetheless:

In King v R [2015] NSWCCA 99 the offender consumed both crystal meth (ice) and alcohol during the day before he brutally murdered the female victim, although there was no evidence as to precisely how much of each substance he had consumed. The offender conceded in cross-examination during the sentence proceedings that he was aware that he could act very violently if he took drugs and alcohol. The sentencing judge held that the offender’s intoxication was “an aggravating factor” and carried “significant moral culpability for the predicable consequences of the choice he made to continue taking drugs in the knowledge of their likely effect upon him”.

The facts in King v R are close to those in the applicant’s case and the specific findings of the trial judge are important. The following extracts from the decision of this Court in King v R (Hoeben CJ at CL, Hidden and Beech-Jones JJ agreeing) are helpful in clarifying this issue:

In relation to those findings by the trial judge, this Court said:

That finding was made by this Court when dealing with a ground of appeal which challenged the finding that the offender’s intoxication was an aggravating factor, i.e. the same issue to which this ground of appeal was directed.

Similarly, in R v Gagalowicz [2005] NSWCCA 452 at [35]-[36] the Court (Studdert, Whealy and Howie JJ) found that an offender’s realisation that the consumption of a drug may lead to violence was a matter of “serious aggravation”. R v Gagalowicz concerned an offender who committed an act of manslaughter while suffering from a psychosis caused by his amphetamine use. The offender had received treatment from a drug rehabilitation centre but had recommenced using ice upon release from the centre. In upholding a Crown appeal against the leniency of the sentence imposed, the Court held at [36]:

Similar to the circumstances in King v R, there was ample evidence before his Honour in this case to allow him to make a finding that the applicant’s heavily intoxicated state should be treated as an aggravating factor. This was because:

The psychological report of Ms Duffy recorded that the applicant reported being violent as a child and a history of punching things and knocking himself out when affected by drugs and/or alcohol. He had drunk alcohol again at times during 2017 and there was another self-harming incident in August 2017.

In summary, for the reasons outlined above, the applicant had a history of behaving violently when intoxicated and was well aware of this connection. He knowingly engaged in a course of alcohol abuse on the night of the murder in full knowledge of this connection. It was open to the sentencing judge to find that the applicant was reckless in becoming intoxicated. As outlined above, the authorities recognise that becoming intoxicated with such knowledge of the likely consequences can be a matter of significant aggravation.

The applicant’s recklessness in allowing himself to become heavily intoxicated is not answered by the submission that this is merely another illustration of the Bugmy principle in that regard has to be had to the applicant’s background. In this case, the applicant’s father had given up alcohol consumption by the time the applicant turned twelve. Moreover, the applicant had been sober for considerable periods of time in the past. His intoxication on this occasion involved a conscious decision on his part to consume alcohol being reckless as to the known consequences of that decision.

This ground of appeal has not been made out.

The sentencing judge found that the applicant’s offending was aggravated by the fact that it involved gratuitous cruelty. Gratuitous cruelty was defined by his Honour as “intentional violence which is committed simply to make a victim suffer”. This definition was taken from McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439. There was no disagreement between the parties as to the appropriateness of that definition.

The sentencing judge was of the opinion that the nature and extent of the injuries found during the post mortem examination were inconsistent with the deceased having sustained them as a result of nothing more than the exigencies of life. In addition, his Honour found that the application of pressure to the deceased’s neck in a choking type action also established the existence of gratuitous cruelty.

The Agreed Facts referred to the following injuries beyond the stab wounds which resulted in the deceased’s death:

The applicant did not accept that gratuitous cruelty had been made out. Submissions by the applicant referred to the fact that although there was bruising, it was difficult or impossible to say more than very general things about the age of the bruises and in this case there was no attempt to do so. The applicant agreed in his written and oral submissions that some of the bruising sustained by the deceased may have been caused by his actions specifically during the confrontation he and the deceased had in the bedroom and hallway. The applicant further submitted that “there’s a very reasonable likelihood that a woman of her age with a number of children might regularly be involved in normal activities, some of which would often involve some degree of minor bruising”. The applicant submitted that the Crown was not able to say that all the injuries occurred on the night of the murder.

During the sentence proceedings, the sentencing judge put to the applicant that the presence of neck compression, abrasions and bruising to the neck was evidence of gratuitous cruelty on its own as it amounted to an attempt to choke someone. The applicant in response submitted that the act of choking was not an act of gratuitous cruelty as it occurred in order to render the deceased unconscious and was part of the series of assaults that constituted the murder. On the applicant’s case, it occurred in the context of him resisting the deceased arming herself with a knife. The applicant in an interview with police said:

The sentencing judge did not accept that account, nor was his Honour able to reject the account. This had the consequence that it could not be ruled out when considering potential aggravating factors such as that under consideration here.

The applicant made the following submissions in relation to whether the Crown was able to prove beyond reasonable doubt that the offence of murder in this case involved gratuitous cruelty:

Further complicating whether the Crown could prove beyond reasonable doubt the existence of gratuitous cruelty, the applicant and the deceased had been in an on again/off again relationship since October 2015 which had been “characterised by domestic violence”. The facts tendered on sentence referred to the deceased and the applicant having a fight one week before her death that caused them to break up.

In McCullough v R Howie J (McClellan CJ at CL and Simpson J agreeing) referred to gratuitous cruelty as:

The applicant submitted that neither the various bruises nor the application of a choke hold upon the deceased by him were sufficient to make out a finding of gratuitous cruelty as that expression was explained in McCullough.

Contrary to the applicant’s submissions, the Crown submitted that it was open to the sentencing judge to find that the offence involved gratuitous cruelty. The Crown relied upon the following:

The Crown submitted that it was open to the sentencing judge to conclude that these injuries were entirely inconsistent with the deceased having sustained them (as was submitted on the applicant’s behalf) as a result of the exigencies of life. Moreover, on the applicant’s own admission to the police, he applied pressure to the deceased’s neck in what was obviously a choking type action. The Crown submitted that these matters established gratuitous cruelty which further aggravated the offending.

Despite the number of bruises and injuries found upon the deceased’s body, I do not see how, on the evidence before his Honour, it could be found beyond reasonable doubt that these injuries were inflicted by the applicant at the time of the killing and that they were committed to make her suffer. Because there was no expert evidence as to the age of the bruising and other injuries, the possibility that these bruises and injuries occurred on occasions other than the killing could not be excluded. When one adds to those considerations, the applicant’s somewhat rough attempts to assist the deceased after the stabbing, I cannot be satisfied beyond reasonable doubt that any of these injuries were inflicted simply to make the deceased suffer.

It follows that this ground of appeal has been made out.

The applicant submitted that the submissions made under this heading were designed to persuade the Court that if it became necessary to re-sentence the applicant, these submissions would be relevant to the re-exercise of the sentencing discretion by the Court.

In view of the applicant’s success in making out Grounds of Appeal 3 and 6, it is necessary to re-sentence the applicant in accordance with the guidance provided by the High Court in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

The applicant relied upon four cases which had been cited by the Crown to the sentencing judge: R v Darbanou [2018] NSWSC 1672; R v Murray [2015] NSWSC 1034; R v Sjahadi [2013] NSWSC 540 and R v Homann [2018] NSWSC 757. The applicant also relied upon a further six cases: R v Ruttley (No 7) [2017] NSWSC 1582; R v Crickitt (No 2) [2017] NSWSC 542; R v Hosseiniamraei [2016] NSWSC 1181; R v Mahon [2015] NSWSC 25; R v Archer [2015] NSWSC 1487 and Archer v R [2017] NSWCCA 151 and R v Boyd (No 2) [2018] NSWSC 380.

The applicant acknowledged the limitations inherent in a comparison with a limited number of cases which invariably would involve different facts. The applicant submitted, however, that to the extent that questions might arise as to the representativeness of the sample, it was significant that four of the cases were relied on by the Crown in the sentence proceedings.

In most of the cases relied on by the applicant, the sentences imposed were less than that which his Honour imposed on the applicant. The applicant submitted that by comparison with the particular cases to which he referred, the sentence in his case was shown to be a very stern one and was not justified by the factors to which his Honour had regard and that this Court in independently exercising the sentencing discretion would impose a lesser sentence.

A summary of the facts in the four cases relied upon by the Crown is set out in the applicant’s written submissions on appeal at [67]-[71]. A summary of the significant features of the decisions relied upon by the applicant is attached to this judgment.

It is not intended to refer to those cases in any detail.

In any event, the “comparative” cases relied upon by the applicant do not establish a sentencing range for this matter. It depends, as does all sentencing, on its particular facts. The High Court and this Court have said on a number of occasions that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for each offence by balancing many different and conflicting features (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [27]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34]).

The comparative cases relied upon by the applicant do not establish that the sentence imposed by his Honour was manifestly excessive. The limitations of comparative cases are well established: See, for example, Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [83]-[84]; Pham v R [2014] NSWCCA 115 at [57]. In particular, it is to be borne in mind that comparative cases do not fix the boundaries within which sentencing judges are obliged to act: Hili v The Queen: Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]. Further, as the plurality said in Hili at [18]:

As was observed by Adamson J (McClellan CJ at CL and Rothman J agreeing) in Vandeventer v R [2013] NSWCCA 33 at [45]:

In any event, there are some clear distinguishing features in the cases referred to by the applicant. As outlined in the Table attached to this judgment, the cases relied upon by the applicant, particularly those with significantly lower sentences, are distinguishable from the present case: (1) in Ruttley, there was no intent to kill, the only intent was to cause grievous bodily harm. Further a Bugmy finding was made and the applicant had an IQ in the borderline range; and (2) in Crickitt and Hosseiniamraei, the offender had no criminal record and did not commit the offence in breach of an AVO or conditional liberty.

The absence of a criminal record on the part of Hosseiniamraei is of particular significance. This matter is relevant to many of the purposes of sentencing as set out in s 3A of the Sentencing Act. In particular, it impacts upon the need for specific deterrence and for the protection of the community. Similarly, the fact that the present offence was committed in breach of an AVO is a matter of significance in the assessment of each of these purposes and also heightened the need for denunciation and the need to make the applicant accountable for his actions.

Apart from the question of whether or not the applicant’s intoxication was a matter to be properly taken into account as an aggravating factor and the question of whether the offending involved gratuitous cruelty, the applicant has not contested that the other matters taken into account by the sentencing judge were properly matters of aggravation or mitigation. The principal challenge by the applicant was whether these matters had been properly taken into account depending on whether they went to the objective seriousness of the offending or were subjective matters personal to the applicant.

The question of whether the applicant’s intoxication was a matter properly to be taken into account as a matter of aggravation has been decided against the applicant and I have taken it into account in the re-sentencing exercise. On the other hand, the issue of gratuitous cruelty has been decided contrary to his Honour’s finding and I have not taken that matter into account as a matter of aggravation.

In the independent exercise of the sentencing discretion, I have taken into account the following matters:

By reference to those matters, it is clear that both general and specific deterrence are of importance in this re-sentencing exercise. In particular, the prevalence and seriousness of domestic violence requires that weight be given to general deterrence and denunciation. Such an approach is in line with the decisions of Munda v Western Australia at [54]-[55]; R v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [21]; DPP v Darcy-Shillingsworth [2017] NSWCCA 224 at [84]-[85], [107]-[108]; Majzoub v Regina [2019] NSWCCA 94 at [26]; Patsan v R [2018] NSWCCA 129 at [41]-[43], and Cherry v The Queen at [78]-[79].

As the High Court has observed, there is a “longstanding obligation of the State to vindicate the dignity of each victim of violence to express the community’s disapproval of that offending and afford such protection as can be afforded by the State to the vulnerable against repetition of violence” (Munda v Western Australia at [54]). Importantly, the applicant’s criminal history and his attitude to the AVO and court orders each indicate that significant weight should be given to specific deterrence and the protection of the community.

By way of mitigation, regard needs to be had to the lack of planning and spontaneous nature of the offending. Full weight has to be given to the applicant’s disadvantaged background, although the facts of this case are far different to those in Bugmy v The Queen. Regard needs to be had to the finding of genuine contrition and remorse on the part of the applicant which was not challenged. Like the sentencing judge, I am not persuaded that this is an appropriate matter for a finding of special circumstances. The parole period, which will be fixed, will be adequate to allow the applicant to re-adjust to living in normal society.

Taking all those matters into account, the sentence which I propose is imprisonment with a non-parole period of 18 years and a balance of term of 6 years.

Accordingly, the orders which I propose are:

PRICE J: I have had the advantage of reading the judgment of Hoeben CJ at CL in draft. For the reasons enunciated by Justice Hoeben, I agree that Grounds 3 and 6 of the appeal have been established. Nevertheless, I find myself in respectful disagreement as to Ground 4.

In her report, Ms Duffy deals with the applicant’s disadvantaged background which the sentencing judge summarised at [95]-[97] of his Reasons. However, his Honour’s consideration of this material was confined to the somewhat cursory statement at [98] that “all of the factors bearing upon the offender’s background” had been “taken into account in determining an appropriate sentence”.

In my respectful opinion where there was evidence that the applicant’s adverse childhood experiences exposed him to the likelihood of depression and substance dependence and his engagement in assaults and substance use could be linked to that disadvantaged background, it was necessary for some assessment to be made as to the extent (if any) that the applicant’s moral culpability for the murder might be reduced.

I agree with Justice Hoeben’s opinion that the concepts of objective seriousness and moral culpability are not synonymous. As the plurality (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) observed in Munda v The State of Western Australia (2013) 249 CLR 600; [2013] HCA 88 at 621 [57]:

In any event, it is my view that the applicant has made out his complaint in Ground 4.

In the exercise of my independent sentencing discretion, I agree with the orders that Justice Hoeben proposes. I would add to his Honour’s reasons that the applicant’s disadvantaged background reduces his moral culpability to a modest extent. However, as Justice Hoeben points out, significant weight is to be given to specific deterrence and the protection of society.

CAMPBELL J: I have had the considerable advantage of considering the judgment of Hoeben CJ at CL and the additional reasons of Price J. Their Honours differ as to whether Ground 4 has been made good. As the references to relevant authorities by each of the other members of the Court make clear Bugmy considerations, like other relevant factors, can cut both ways for sentencing purposes. As Hoeben CJ at CL points out at [63] above the sentencing judge summarised the material pertinent to this factor and said he had taken them into account. It was also evident that the sentencing judge considered that the applicant’s propensity for violence when intoxicated and his anger management issues, both of which may have been products of his deprived upbringing, pointed in the direction of the need for a longer sentence notwithstanding any diminution in moral culpability. On this same point it is relevant to bear in mind that in Munda (at [57]) the plurality of the High Court said:

In my judgment the balancing approach to these conflicting factors involving Bugmy considerations comes through in a consideration of the whole of the reasons at first Instance. I agree with the orders proposed by Hoeben CJ at CL for the reasons his Honour gives. I also agree with Price J’s observation at [183].