Aiga v R

1. [1]

   N ADAMS J: The applicant seeks leave to appeal against the sentence imposed upon him by Judge Neilson on 27 October 2023 in the District Court at Sydney. The applicant had “glassed” a female bar attendant at a hotel in the early hours of the morning causing a significant wound to her face requiring surgery and which resulted in facial scarring. The entire incident was captured on CCTV.

2. [2]

   The applicant pleaded guilty in the Local Court to one count of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW) and a related common assault contrary to s 61 of the Crimes Act (on a security officer). A 25% discount was applied pursuant to s 25D(2) of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Act”). The applicant was sentenced to an aggregate sentence of imprisonment of 4 years and 6 months with a non-parole period of 2 years and 6 months.

3. [3]

   The applicant appeals against the severity of the sentence imposed pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) on the following grounds:

Facts

1. [4]

   The reasons for sentence are published on Caselaw: R v Aiga [2023] NSWDC 622. I have taken the following facts from [2]-[9] of that decision and extracted them almost verbatim.

2. [5]

   At the time of the offence, the offender was 28 years old. By the middle of 2022, he was in an intimate relationship with a woman known as Samantha Buckland. Ms Buckland was employed at the Kogarah Tavern at Kogarah as a manager. The victims, Kyree Bathurst and Aghil Sobi, also worked from time to time at the tavern.

3. [6]

   On 3 June 2022, Ms Buckland worked at the tavern from 8:00am until 5:00pm. After she completed her shift, she stayed at the tavern with the offender who had attended there, and they consumed a number of alcoholic beverages together. Ms Bathurst commenced working at the tavern as a barmaid at 7:00pm. Her shift was to end at 3:00am in the morning of 4 June 2022.

4. [7]

   About 7.30pm or 8:00pm, Ms Buckland and the offender left the tavern with another friend and travelled to the Kogarah Hotel which is also in Kogarah. There they met a number of other friends, and they continued to consume alcoholic beverages. After the others started going home, the offender and Ms Buckland began arguing. Ms Buckland decided to leave the hotel and the offender said that he would go with her. They then returned to the Kogarah Tavern, arriving there about 1:00am.

5. [8]

   Aghil Sobi was a security guard at the tavern. He was on duty that night, at least between 1:00am when Ms Buckland and the offender returned to the hotel, up until the time of the offence. Mr Sobi had never seen the offender cause trouble before, nor behave in a manner which indicated to him that the offender was intoxicated. The first time Mr Sobi saw the offender in the early hours of 4 June 2022 was when the offender was standing at the bar waiting to order a drink. Ms Buckland walked past Mr Sobi and Mr Sobi greeted her. The offender then walked past him with a drink in his hand. At that stage, he thought that the offender may have been drinking earlier, but he still did not believe that the offender was intoxicated. He allowed the offender to stay at the tavern.

6. [9]

   At some stage, Ms Bathurst poured Ms Buckland and the offender a beer each, but when the offender tapped his card to pay for the purchase payment was declined. The offender kept speaking to Ms Buckland and walked away, rather than responding to Ms Bathurst, pointing out, apparently, that the drinks had not been paid for. In the meantime, the offender and Ms Buckland continued to argue. At one stage, the offender vomited at the bar and Ms Buckland cleaned up the mess. She asked the offender to go home and not embarrass her at her normal workplace. However, the offender continued to stay and made comments to her and about her, including calling Ms Buckland “a dog”.

7. [10]

   At one stage, he poured the remainder of his beer into Ms Buckland’s glass. He was then yelling at Ms Buckland. He pushed a table which fell over and in turn knocked over two bar stools, which were two stools which had been arranged around the table. This was very close to where Ms Buckland was sitting, which was relatively close to the bar. The offender had with him what appeared to be a work bag as well as a construction safety helmet, generally known as a hard hat. The offender threw those away in what appeared to be a fit of pique. Ms Bathurst later told the police that she felt a little panicked by that action of the offender. At the time, Ms Bathurst was standing behind the bar in the staff area. The offender was standing on the other side of the bar in the patron area next to Ms Buckland. Ms Bathurst said to the offender, “[y]ou’re embarrassing yourself, just go, you gronk”. That was ignored by the offender.

8. [11]

   The offender then yelled at Ms Buckland, words the effect of, “Sammy, is that what you want.” Mr Sobi and Mr Kedar Sharma, who was working at that time as the manager, then approached to where the offender and Ms Buckland were. Mr Sobi seemed to be intent upon returning the table which had been overturned to the upright position and picking up the stools which had been knocked over. At the time that Mr Sobi and Mr Sharma were walking to near the place where the offender and Ms Buckland were, Ms Bathurst walked down to near where they also were and said these words to the offender, “[b]ig strong boy, you felt like a big man yelling at a girl, weak dog”.

9. [12]

   The offender was obviously incensed by what he perceived to be an insult, and yelled back at her, “[f]ucking dog.” The offender then approached the bar where she was standing. He reached across the bar with his right hand and grabbed Ms Buckland’s glass of beer which was standing on the bar between him and Ms Bathurst. He threw its contents in the direction of the cash register and Ms Bathurst, then reached across the bar, placing his left hand on the right side of Ms Bathurst’s head. With the empty glass in his right hand, he smashed the glass into the left side of Ms Bathurst’s face above her left eyebrow. The glass shattered, causing Ms Bathurst’s injuries. She began bleeding profusely from her head.

10. [13]

    Mr Sobi attempted to defuse the situation. The offender continued yelling at Ms Buckland, and he pushed Mr Sobi twice on the chest. That is the allegation of common assault. Mr Sharma, knowing that the offender had smashed a glass, but not realising that it had injured Ms Bathurst, encouraged the offender to leave the tavern and he did so. When it was realised that Ms Bathurst had been injured, Emergency Services were called and Ms Bathurst was taken by ambulance to the St George Hospital. Ms Bathurst sustained a six-centimetre laceration of her left temple. Before his Honour were photographs taken in the Emergency Department which clearly show a major laceration to the left-hand side of Ms Bathurst’s face, although the laceration did not appear to his Honour to be so pronounced when one looks at the closed-circuit television (Exhibit B).

Proceedings on sentence

1. [14]

   The Crown tendered a bundle of documents including the charge certificate, Court Attendance Notice, a s 166 Certificate, a Statement of Agreed Facts, CCTV footage of the incident, the applicant’s criminal and custodial histories, and sentence facts for another offence committed by the applicant whilst in custody.

2. [15]

   The applicant tendered a psychologist’s report from Anita Duffy, a handwritten custodial outline and a psychiatric report from Dr Richard Furst.

3. [16]

   With respect to his experience of custody, the applicant also relied on his handwritten account of “lock in days” due to “Covid, low staff, training day for staff” (Exhibit 2).

4. [17]

   The following account is taken from what the applicant self-reported to Ms Duffy and Dr Furst.

5. [18]

   The applicant grew up in Airds with parents who were teetotallers and strict Catholics. The applicant’s father subjected him to corporal punishment and “verbal dressing downs” as a form of discipline. His father also used to assault his mother who, the applicant reports, was hospitalised on one occasion.

6. [19]

   The applicant achieved a scholarship to St Gregory’s College at Campbelltown due to his athletic skills. He attended that school from Year 7 to the beginning of Year 10. He started getting into trouble at school and was caught stealing. In order to remove him from bad influences, his parents sent him to live with relatives in Samoa in Year 10. He stayed there until Year 12 (from the ages of 15 to 17 years). He completed his Higher School Certificate in Sydney in 2011.

7. [20]

   The applicant reports that when he was in Samoa he was introduced to alcohol by relatives and became dependent on it. Although he also reported smoking cannabis from the age of 12 or 13 years and experimenting with other drugs, he recognised that his problem was with alcohol use.

8. [21]

   After leaving school, the applicant has had a variety of jobs.

9. [22]

   At the time of the offending, the applicant was living with his partner and had two small children.

10. [23]

    Relevant to Ground 3, the applicant relied on the following evidence in support of a submission that his moral culpability for the offending should be “substantially” reduced.

11. [24]

    According to Ms Duffy, the applicant: “could likely fit the criteria of Alcohol Intoxication on the night of the index offence”. She stated at [46]:

12. [25]

    Ms Duffy administered the following self-report scale assessments: a Patient Health Questionnaire, the GAD-7 (a similarly structured assessment tool for anxiety), the Alcohol Use Disorder Identification Test and the Adult attention deficiency hyperactivity disorder (“ADHD”) Self Report Scale. Following answers given by him, Ms Duffy opined that the applicant satisfied the diagnostic criteria for alcohol use disorder and ADHD, the latter of which would need to be confirmed by a suitably qualified psychiatrist or psychologist.

13. [26]

    Ms Duffy identified alcohol and aggression as the two major risk factors for reoffending.

14. [27]

    Dr Furst opined that the applicant met the criteria for alcohol use disorder and that the primary reason for his offending related to alcoholism. He also found that the applicant met the criteria for post-traumatic stress disorder (“PTSD”) (complex type) due to “childhood trauma” and that the applicant’s “struggles to cope throughout his teenage years and in his 20’s are partly intrinsic because of genetic vulnerability towards alcoholism but are also the longer-term consequences of childhood trauma and abuse.”

15. [28]

    Dr Furst considered that the applicant’s PTSD, childhood trauma and social circumstances “provide the context in which the offending in question took place in June 2022”.

16. [29]

    Dr Furst did not confirm the suggested diagnosis of ADHD and cautioned against relying on retrospective reporting of such symptoms, which “may well have been the function of disinterest in school and lack of application to studies rather than ADHD per se. He also opined that, “traumatic experiences in childhood and associated anxiety can also mimic ADHD”.

17. [30]

    Dr Furst considered “aggressive treatment” of the applicant’s drinking and mental health issues as being of paramount importance in addressing the applicant’s reoffending risk. He recommended that the applicant be admitted to a drug and alcohol rehabilitation facility upon his release to parole to improve his coping skills. He also considered that the applicant’s mental health would render his experience of custody more onerous compared to other inmates.

18. [31]

    The applicant’s criminal history spans the ten-year period from 2013 to 2023.

19. [32]

    The applicant’s first offences were for an affray and destroying or damaging property in 2013. The first time he was sentenced to full-time imprisonment was in 2015 for robbery in company. He received a sentence of 2 years and 6 months imprisonment with a non-parole period of 12 months. He was fined for driving offences in 2014. He was placed on a Community Correction Order (CCO) for destroying or damaging property in 2017 which included an alcohol place restriction and an alcohol abstention condition. The following year, he was called up for breaching that order and placed on a further CCO with the same abstention condition.

20. [33]

    In 2019, the applicant was placed on a further CCO for driving with mid-range PCA. He breached that order and was called up and placed on a further CCO. He was required to have drug and alcohol treatment as part of that CCO and an alcohol abstention condition was again imposed. He was placed on CCOs for driving whilst disqualified twice in 2020.

21. [34]

    The applicant was placed on an Intensive Correction Order for driving whilst disqualified between September 2021 and March 2022.

22. [35]

    At the time of the offending the subject of this appeal, the applicant was subject to a CCO for driving while disqualified.

23. [36]

    Upon his arrest on 4 June 2022, the applicant was refused bail. Whilst in custody he was charged with possessing an offensive weapon. He was sentenced on 27 June 2023 to 4 months imprisonment from 20 March 2023 until 19 July 2023. The weapon was a makeshift 22-centimetre blade made of metal with lining wrapped around the handle.

24. [37]

    The applicant’s custodial record shows that he was in custody from 23 April until 6 August 2014, from 3 September 2015 until 19 May 2016 and from 4 June 2022 until the present.

25. [38]

    In written submissions, the applicant’s solicitor submitted that the sentencing judge would find that the applicant’s moral culpability was reduced on the bases that he was exposed to domestic violence, familial and peer alcohol and drug use, and direct and serious abuse and neglect, including serious violence. Reference was made to the Bugmy Bar Book and the decisions in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“CDPP v De La Rosa”).

26. [39]

    The applicant’s solicitor made extensive oral submissions over two days (interrupted by the sentencing judge’s other court commitments including a deliberating jury). Relevant to ground 1, it is to be noted that the sentencing judge took issue with some of the submissions made by the applicant’s solicitor and spoke over her on a number of occasions. To give an example of the tone of the proceedings this exchange occurred near the commencement of the proceedings:

27. [40]

    The following exchange later occurred between his Honour and defence counsel in the context of submissions about the assessment of the objective seriousness of the offending:

Remarks on sentence

1. [41]

   The applicant was sentenced on 27 October 2023. I have already extracted the facts found by his Honour above.

2. [42]

   The following passages in his Honour’s reasons are relevant to the grounds of appeal. At [10], his Honour said this about the injuries (relevant to Ground 1):

3. [43]

   His Honour went on to observe the following in relation to the injuries at [11] and [12] (relevant to Ground 1):

4. [44]

   His Honour observed the following (at [28]) in response to the submission that the applicant’s moral culpability was reduced because his alcoholism was caused by childhood trauma (relevant to Ground 3):

5. [45]

   His Honour went on to observe the following at [30]-[31] (relevant to Ground 3):

6. [46]

   His Honour then returned to the issue of the objective seriousness and observed the following at [33]:

7. [47]

   His Honour then made the following findings at [35]-[36]:

Ground 1: Findings of fact not available on the evidence

1. [48]

   The applicant identified three purported errors in fact-finding under this ground.

2. [49]

   First, it was submitted that his Honour erred in finding that the victim’s temporal artery was “severed”. The applicant noted that the Agreed Facts at [16] and [17] described the injury to the victim as a “laceration” rather than a severance. It was submitted that there was no evidence before his Honour at the proceedings on sentence, or anything in the Agreed Facts that would have supported a conclusion that the injury was anything other than a laceration.

3. [50]

   Secondly, it was submitted that his Honour’s findings at [10] and [33] that the injury could have been fatal but for surgical intervention were not sufficiently supported by evidence. The applicant submitted that this latter conclusion likely flowed from the first, flawed conclusion that the victim’s temporal artery was severed. The applicant submitted that even if the artery had been severed it would nonetheless not have been open to the sentencing judge to conclude that the injury was or could have been fatal in the absence of expert evidence or an agreed fact to that effect.

4. [51]

   It was accepted that at the proceedings on sentence, the applicant’s solicitor appeared to accept that the injury could have been life threatening but it was submitted that this was not a concession available on the evidence and that this exchange occurred as “part of a larger exchange.”

5. [52]

   Thirdly, the applicant submitted that it was not open to his Honour to conclude that the lasting impact of the scarring to the victim’s face would be more serious because of the victim’s gender.

6. [53]

   In relation to the first factual dispute the Crown submitted that the sentencing judge’s use of the word “severed” was appropriate in the circumstances where the victim’s arterial wall had been dissected and required repair. It was further submitted that to require evidence of a complete separation of the artery into two parts to justify the use of the word “severed” would be to take an unduly technical approach to an ex tempore judgment.

7. [54]

   The Crown submitted that in the proceedings on sentence a lengthy discussion had occurred about the decision of this Court in Wick v R [2017] NSWCCA 244, which also involved a “glassing” injury and lacerations including to the facial nerve. In that judgment, the term “nerve severance” was used to describe the victim’s injury and distinguish it from an injury inflicted in another case. The Crown submitted that this description was appropriate and may provide an explanation for why the sentencing judge used a similar term in his remarks.

8. [55]

   In relation to the second factual dispute the Crown submitted that the statement that the offences could have been life-threatening was not erroneous given that it arose out of a concession by the applicant’s solicitor, amounted to no more than a drawing of an inference from all the facts of the victim’s injuries, and was made in the context of considering the extent of harm suffered by the victim. The sentencing judge followed this statement at [33] of his reasons with a finding that “most of the physical problems caused by the offending will go away”.

9. [56]

   Finally, in relation to the third factual dispute the Crown submitted that the court would not interpret the remarks of the sentencing judge as a positive finding that the scarring was more serious by virtue of the victim’s gender. The Crown noted the qualifying phrase “it appears to me” to support a submission that the remark was no more than an observation of the sentencing judge based on his own personal experiences.

Consideration Ground 1

1. [57]

   The test to be applied to a challenge to factual findings made by a sentencing judge is whether the findings were open on the evidence before the sentencing judge: R v O’Donoghue (1988) 34 A Crim R 397. In AB v R [2014] NSWCCA 339, Simpson J (as her Honour then was) with whom Meagher JA and Wilson J agreed, traced the early jurisprudence on this question and then concluded at [57] that, “[w]hat is essential is that error, properly so called, be demonstrated before this Court will interfere in a finding of fact.”

2. [58]

   There has been some doubt raised about the approach in R v O’Donoghue in Clarke v R (2015) 254 A Crim R 150; [2015] NSWCCA 232 and Hordern v R [2019] NSWCCA 138. As I observed in Gibson v Regina [2019] NSWCCA 221 at [61]:

3. [59]

   I do not propose to consider whether the test in R v O’Donoghue is correct as the parties did not take issue with it. I am satisfied that whether the appropriate test is mistaking the facts or whether it is that the factual finding was “not open” to the sentencing judge the result is the same on the facts in this matter.

4. [60]

   The first purported factual error turns on whether the words “lacerated” and “severed” are sufficiently similar such that they could be used interchangeably. It was common ground that the Agreed Facts described the temporal artery as being “lacerated”, that the sentencing judge used that term initially, and thereafter described the temporal artery as being “severed”. Although it is not necessary to make a finding on this issue, I accept the submission that the use of the term “severed” most likely came from the discussion of the decision in Wick v R [2017] NSWCCA 244 which had similar facts and used the term “severed”.

5. [61]

   To some extent, the finding in relation to the first purported error is related to the finding in relation to the second purported error. If I am not satisfied that it was open on the facts to find that the injury was potentially life threatening, then nothing really flows from whether the injury was described as a lacerated artery or a severed one.

6. [62]

   There was no evidence put before the court (in the Agreed Facts or otherwise) nor any submissions made by the Crown (either written or oral) to the effect that “the injury could have been fatal” or “life-threatening”. It seems to me that if the Crown had any medical evidence that the injury was life threatening, it might have been expected to have been included in the Agreed Facts. Further, it seems unlikely that the Crown would have accepted a plea of guilty to the less serious offence contrary to s 35(2) of the Crimes Act had the injury been life threatening.

7. [63]

   It is to be accepted that the applicant’s solicitor appears to have agreed with the sentencing judge’s suggestion that the injury was “potentially fatal”, but that answer has to be considered in the context of the entire proceedings on sentence. The transcript suggests that from the outset the sentencing judge was impatient with the solicitor, spoke over her and even at one stage said to her, “you’re starting to irritate me”. Even if it was open for a solicitor to make a concession about medical evidence that was not before the court (and I am not satisfied that is the case), I am not satisfied that the solicitor’s response when interrupted by the judge amounts to a concession in the circumstances.

8. [64]

   Given that I am satisfied that it was not open to find that the injury could have been life threatening, it does not really matter whether the sentencing judge used the word “severed” or lacerated”, save for the fact that the use of the word “severed” is more likely to lead to the conclusion that the injuries could have been life threatening.

9. [65]

   As for the observation by the sentencing judge that it appeared to him that facial scarring would cause greater concern for “women and girls rather than for men”, as a general proposition his Honour may well have been correct. Men and women are judged by different standards when it comes to physical appearance. But that general observation says nothing about the facts in this particular case and in the absence of a victim impact statement it was not open to his Honour to find that it would have caused greater concern for this victim.

10. [66]

    Although I have some doubt as to whether this gendered observation was in fact taken into account as an aggravating factor by his Honour, the fact remains that the observation was made in the paragraphs in which his Honour was assessing the objective seriousness of the offending. On that basis, I am satisfied, on balance, that it had the capacity to influence the aggregate sentence: Benn v R [2023] NSWCCA 24 at [6].

11. [67]

    In upholding Ground 1, I have had regard to the fact that his Honour delivered his reasons ex tempore. This Court has acknowledged on a number of occasions the pressures that judges of the District Court are under in managing busy short matters lists whilst also controlling deliberating juries. Accordingly, it is to be accepted that ex tempore judgments should be considered with a degree of latitude: Buxton v R [2017] NSWCCA 169 at [53]. Despite this general proposition, I am satisfied that the errors had the capacity to influence the finding of objective seriousness.

12. [68]

    I would uphold Ground 1.

Ground 2: Objective seriousness

1. [69]

   Under the second ground of appeal the applicant contended that it was not open to the sentencing judge to find that the objective seriousness of the offence fell “slightly above the midrange”. In support of this ground, reliance was placed on the purported errors identified under Ground 1.

2. [70]

   It was submitted that the injuries sustained by the victim fell on the lower end of the range of grievous bodily harm and that evidence of lasting injury was minimal. The injury was sustained from a single and spontaneous strike and could not be said to be a “savage attack” as it was described by the Crown at first instance. In particular, reliance was placed on the temporary nature of the victim’s injuries in support of a conclusion that it was not open to the sentencing judge to find that the offending was above the mid-range of objective seriousness for these kinds of offences.

3. [71]

   The applicant submitted that the assault was not planned, premeditated, or sustained and the applicant desisted once the single strike was delivered. Further, the CCTV footage was relied upon as undermining the Crown contention that the offence was “savage” because it demonstrated that the applicant did not recoil from the force of the strike or from pain and instead maintained a “calm” demeanour as she walked away from the applicant.

4. [72]

   Finally, the applicant submitted that the offence was not an instance of a random attack upon an innocent citizen otherwise uninvolved with the offender. The applicant submitted that while the strike was legally and morally unjustified and there was no submission that he was provoked (per s 21A(3)(c) of the Sentencing Act), the sentencing judge did find that the applicant was evidently (though unjustifiably) provoked by the victim’s comments. The applicant submitted that this finding brought the present case out of the realm of cases concerned with random attacks on members of the public that are of a higher level of objective seriousness.

5. [73]

   The Crown submitted that the court would not accept the contention that the injuries inflicted upon the victim by the applicant are properly assessed as falling towards the lower end of the range of seriousness, or the contention that there was minimal evidence of lasting injury to the victim.

6. [74]

   The Crown submitted that the six-centimetre laceration to the victim’s skin caused both a permanent disfigurement of a prominent part of the body and a functional impairment in relation to daily activities, at least temporarily. The victim required a five-hour surgical intervention. Her recovery in terms of the damage and bleeding to her artery and muscle recovery was a consequence of this extensive surgical intervention. The Crown submitted that the duration of the surgery indicates the significant degree of injury suffered by the victim.

7. [75]

   The Crown submitted that the victim’s demeanour in the immediate aftermath of the “extreme and sudden act of violence” did not mitigate the seriousness of the harm inflicted. It was further submitted that I would not accept the applicant’s submission that her demeanour was calm, on the basis that the CCTV footage depicts the victim repetitively flicking her hand and looking at her hand which was shaking with an expression of anguish on her face.

8. [76]

   Further, the Crown submitted that any physical attack with a weapon deliberately directed at the head of a victim is objectively extremely serious. The applicant picked up a glass for the purpose of committing an assault and used it with considerable force, magnified by the use of his left hand to stabilise the victim’s face while simultaneously swinging the glass in his right hand.

9. [77]

   The Crown also submitted that I would not accept any reliance on provocation as a mitigating factor given that the victim calling the applicant a “weak dog” arose in circumstances where she was in her place of employment observing the applicant yell at her colleague, push over furniture, and refuse requests to leave the premises.

Consideration Ground 2

1. [78]

   The question of whether a sentencing judge has erred in a finding regarding objective seriousness is whether the finding was open to them: Mulato v R [2006] NSWCCA 282 at [37], [46]-[47]. As Gleeson JA (with whom Button and R A Hulme JJ agreed) observed in Magro v R [2020] NSWCCA 25 at [29]:

2. [79]

   I have already held under Ground 1 that it was not open to his Honour to find that the assault was potentially life threatening. That means that it will be necessary for this Court to re-sentence the applicant in any event.

3. [80]

   During the hearing of this appeal, it was accepted that the vulnerability of the victim as a worker engaged in employment duties at 2:00am had not been taken into account by the sentencing judge in his assessment of objective seriousness. The following exchange took place:

4. [81]

   As for the finding of objective seriousness this Court would make for the purpose of re-sentence, the following exchange took place:

5. [82]

   When an intermediate appellate court is re-sentencing an applicant, the usual practice is that the unchallenged findings of the sentencing judge are accepted: DL v R (2018) 265 CLR 215; [2018] HCA 32 at [9]). Given that the applicant has challenged the finding of objective seriousness under Grounds 1 and 2, it will be necessary for this Court to make a new finding of objective seriousness for the purposes of re-sentencing whether or not Ground 2 is upheld.

6. [83]

   Having considered all of the factors relevant to the assessment of objective seriousness and ignoring the suggestion that the injuries were potentially fatal, I am well satisfied that it was open to the sentencing judge to find that the objective seriousness fell “slightly above the midrange”.

7. [84]

   The CCTV footage was part of the appeal book and I have viewed it. It is quite shocking. It shows that without any warning and very quickly, the applicant grabbed the female bartender’s head with one hand and intentionally smashed a glass into her face with the other. The only “provocation” for this violent attack on an unarmed employee of the hotel was that she had sought to stop him from aggressively fighting with his girlfriend (who was the victim’s work colleague) in public.

8. [85]

   Even if there was no evidence before the court that the injuries were life threatening, they were serious, required surgery, and have left permanent facial scarring. A photograph of the injury was in evidence and shows the extent of it and the proximity to the victim’s eye. The victim was simply doing her job at 2:00am and was forced to deal with an aggressive intoxicated patron. She was entitled to feel safe in her place of employment. This was serious criminality.

9. [86]

   I would not uphold Ground 2.

Ground 3: Moral culpability

1. [87]

   The applicant’s third ground of appeal is that the sentencing judge erred in declining to find a diminution of the applicant’s moral culpability.

2. [88]

   The applicant submitted that following his diagnosis of “complex post traumatic disorder” he turned to excessive alcohol consumption and subsequently was diagnosed with severe alcohol use disorder. The applicant submitted that the sentencing judge found that the applicant’s alcohol use disorder was a causal factor at [35] but erred in finding that there was no lessening of his moral culpability in the context of a finding that the alcohol use disorder was only one of multiple causal factors of the offending.

3. [89]

   The error was said to be in finding that the applicant’s moral culpability was not reduced on the basis that his PTSD was not the sole cause of the offending.

4. [90]

   The Crown clarified that the sentencing judge did not decline to make a finding that the applicant’s moral culpability was lower because his alcohol use disorder was not the sole cause of his offending, but rather found that the offending arose out of the applicant’s intoxication and subsequently declined to find that his moral culpability was “lessened substantially” because of his PTSD.

5. [91]

   It was submitted that the sentencing judge was entitled to reject the contention that the applicant’s intoxication was a result of his upbringing or his PTSD. His Honour had regard to Dr Furst’s diagnosis of alcohol use disorder and extracted the doctor’s response to the question of whether the applicant’s alcohol abuse was linked to any psychiatric illness. The applicant’s parents did not drink or use drugs. The available evidence did not necessarily support the assumption that the applicant had a strong family history of alcoholism or addiction.

6. [92]

   The sentencing judge had regard to the fact that the applicant had consumed alcohol over a long period of time even though he knew that it caused him problems, and that he had been angry and arguing with his partner, Ms Buckland, for hours. His alcohol use had repeatedly resulted in him engaging in criminal behaviour in the past and alcohol abstention was a condition of the CCO that he breached in committing the offences, though that specific condition had lapsed prior to the offending. The Crown submitted that the sentencing judge was entitled to reject the contention that the fact that the applicant had permitted himself to get substantially intoxicated over a nine-hour period prior to committing the offending was a result of his PTSD.

Consideration Ground 3

1. [93]

   It is well accepted that an assessment of an offender’s moral culpability extends to a consideration of some of their personal circumstances, including circumstances which may affect their capacity to reason, appreciate the wrongfulness of their actions or control their conduct: Paterson v R [2021] NSWCCA 273 at [31].

2. [94]

   Initially, two factors were relied upon in the applicant’s written submissions before the sentencing judge to reduce the applicant’s moral culpability: the applicant’s deprived childhood (Bugmy principles) and his recent diagnosis of PTSD (De La Rosa principles). Despite this, the focus of the oral submissions before the sentencing judge (and in this Court) was on the applicant’s PTSD which was said to be causative of his alcoholism. This is no doubt because, putting to one side the diagnosis of PTSD, the evidence did not go so far as supporting a submission that the circumstances of the applicant’s strict upbringing meant that he did not have the capacity to appreciate the wrongfulness of his actions.

3. [95]

   The rationale for allowing for some reduction in moral culpability for a dysfunctional childhood was recently described in this way by Simpson AJA in R v MJ [2023] NSWCCA 306 at [5]:

4. [96]

   As for the relevance of a mental illness (such as PTSD) to the sentencing process, the relevant principles were summarised in CDPP v De La Rosa by McClellan CJ at CL at [177] as follows (footnotes omitted):

5. [97]

   It is not uncommon for offenders to come before the court with a combination of a deprived childhood, mental illness and a drug or alcohol addiction. This can make it difficult to unravel which of those three factors, if any, are potentially causative of the offending behaviour. It can be important to identify what factors are causative because while a deprived childhood and/or mental illness may reduce an offender’s moral culpability, drug or alcohol addiction usually does not. Section s 21A(5AA) of the Sentencing Act provides that, “[i]n determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor”.

6. [98]

   It was not suggested that when the applicant started drinking alcohol, he did not have a free choice. Section 21A(5AA) does not apply if the alcohol is not “self-induced”. In Bourke v R (2010) 199 A Crim R 38; [2010] NSWCCA 22 (which pre-dated the enactment of s 21A(5AA)), McClellan CJ at CL (with whom Price and R A Hulme JJ agreed) stated at [26] that “…intoxication…will ordinarily not mitigate the penalty save as where the intoxication is the result of an addiction, and the original addiction did not involve a free choice”. In Kelly v R [2016] NSWCCA 246 (which post-dated the enactment of s 21A(5AA)), Rothman J (with whom Hoeben CJ at CL and R A Hulme J agreed) approved the above passage in Bourke v R at [50].

7. [99]

   The question before his Honour was whether the applicant’s PTSD contributed to the commission of the offence in a material way such that his moral culpability “may” have been reduced. It was common ground that the offending was caused by the applicant’s intoxication; the question was the extent to which the fact that he was highly intoxicated on the night of the offence was due to his PTSD.

8. [100]

   The sentencing task was not made easier by the fact that the expert reports before the sentencing judge did not clearly delineate between the causative factor of the PTSD (which could reduce moral culpability) and the causative factor that the applicant had been drinking for nine hours prior to the assault (which was not mitigating).

9. [101]

   It was in that context his Honour stated that he had some difficulty in accepting as a blanket proposition that the applicant’s alcoholism was the “direct result of his chronic post-traumatic stress disorder”. His Honour had regard to the difficulty in separating the applicant’s decision to drink heavily on the night of the offending by observing that a person does not need to be suffering from chronic PTSD to suffer from alcoholism (at [28]).

10. [102]

    His Honour went on to observe (at [35]) that the applicant knew that his alcohol use caused problems and should have reduced his intake. He then addressed the applicant’s submission that the applicant’s moral culpability should have been “lessened substantially” because his alcoholism was caused by his PTSD. Although his Honour was unable to conclude that was the case, he concluded that “it may have been a causal factor, but I cannot conclude that it was the causal factor”.

11. [103]

    A finding that moral culpability is reduced does not inevitably lead to the same result in every case, especially in the case of alcohol fuelled violence against women. In Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 (“Munda”), the High Court considered the relevant considerations when an offender from a deprived background commits an offence of alcohol fuelled violence at [55]-[57].

12. [104]

    At [55] their Honours (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) observed the following, albeit in relation to a domestic violence offence which resulted in the death of the offender’s partner:

13. [105]

    Their Honours went on at [56] to note that:

14. [106]

    Their Honours then went on at [58] to refer to the oft-cited passage by Gleeson CJ in R v Engert (1995) 84 A Crim R 67, a decision of this Court where his Honour observed the following on page 68:

15. [107]

    The reason that the sentencing purpose of general deterrence may play a lesser role in sentencing a mentally ill person is that the community does not expect such a person to be used as an example to deter others. The difficulty in the applicant’s case is that although he has been diagnosed with an alcohol disorder (which was said to have arisen from his PTSD), there was no evidence put before the court that he had no control at all over his drinking. In fact, the evidence before the court was that he had been able to abstain in the past when it was part of a court order to do so.

16. [108]

    It could not be said that his Honour failed to have regard to the evidence that the applicant suffered from PTSD. His Honour was satisfied that the applicant’s experience of custody would be more onerous because of his PTSD (at [30]). He was also satisfied (at [31]) that the applicant required an extended period of supervision by community corrections after release from gaol to overcome his alcohol addiction. His Honour departed from the statutory ratio in s 44(2A) of the Sentencing Act by a significant extent, reducing the non-parole period such that it comprised only 55% of the head sentence. His Honour simply was not satisfied that the applicant’s moral culpability should have been “lessened substantially” on the basis that his drinking that night was caused by his PTSD; although he was satisfied it was “a” causal factor he was unable to be satisfied that it was “the” causal factor.

17. [109]

    During the hearing of the appeal, it was accepted that to some extent the complaint under Ground 3 was a failure to give reasons. It was submitted that although his Honour rejected the submission that the applicant’s moral culpability was “substantially lessened”, the finding he did make in that regard was not entirely clear.

18. [110]

    Although it is to be accepted that his Honour’s ex tempore reasons on this issue did not go on to state the extent to which he had reduced the applicant’s moral culpability, it is tolerably clear that he did. When his reasons are read as a whole, I am satisfied that it was open to his Honour to deal with the applicant’s PTSD in the manner that he did.

19. [111]

    I would not uphold Ground 3.

Re-sentence

1. [112]

   Although there was a fourth ground of manifest excess, it is accepted that there is no need to consider that ground given that the court is required to exercise the discretion afresh: Kentwell v the Queen (2014) 252 CLR 601; [2014] HCA 37.

2. [113]

   The applicant relied on his affidavit affirmed on 15 July 2024 in which he provided an update on the conditions of his custody. He has been housed at the Mid North Coast Correctional Centre since his sentence on 27 October 2023. He works five days a week building furniture and in his free time he helps sweepers clean the pod. He is next in line to obtain a sweeping job. He is participating in the EQUIPS addiction course and as at the date of his affidavit had six weeks left of that course. He has difficulty sleeping and sometimes has panic attacks.

3. [114]

   The applicant deposed that because of COVID-19 and staff shortages this year he has been locked in his cells for 85 days (in his estimate). He further deposed that upon his release he intends on returning to his previous employment, namely working in glazing on construction sites.

4. [115]

   The Crown relied upon two affidavits in reply. The first affidavit was that of Emma Pearl Phillips affirmed on 17 July 2024. She is a solicitor employed in the Office of the Director of Public Prosecutions (ODPP). She provided updated material in relation to the applicant’s custodial infringements since his sentencing. Since that date the applicant has received a number of custodial infringements. Between 27 November 2023 and 3 June 2024, he was found in possession of an offensive weapon/instrument (four offences); possession of a drug implement; possession of a drug; fight or other physical combat; tattoo (two offences); resist impede search, possess mobile, SIM card, and charger, and possess “tobacco e-cig”.

5. [116]

   The second affidavit was of Yeabee Kim sworn on 2 August 2024. She is also a solicitor employed in the ODPP. She has had access to the records of Corrective Services NSW and deposed that for the period between 1 January 2024 and 15 July 2024 the applicant’s “lock ins” that were not related to his segregation for misbehaviour amounted to a total of 25 days. His “lock ins” that related to his segregation for misbehaviour amounted to a total of 16 days. The “lock ins” ranged from 2 hours to 7.25 hours and the “lock ins” that were not for misbehaviour were caused by staffing deficiencies, mandatory staff training and technical difficulties.

6. [117]

   I have taken this material into account on re-sentence.

7. [118]

   I have adopted all of the findings of the sentencing judge. The applicant is to be afforded a 25% discount on the sentence. The statutory guideposts are the maximum penalty of 10 years imprisonment and a standard non-parole period of 4 years of imprisonment. He is to be sentenced on the basis of an assessment of objective seriousness of slightly above mid-range. Although I would accept that special circumstances warrant a variation of the statutory ratio, if I was to arrive at a shorter sentence, I would not allow for such a significant reduction in the non-parole period.

8. [119]

   The applicant was 28 years old at the time of sentence with a criminal history that disentitles him to leniency. He was on conditional liberty at the time of the offending which was an aggravating factor. I have had regard to the reports of Ms Duffy and Dr Furst, and the findings of remorse and prospects of rehabilitation found by his Honour. I accept that the applicant has demonstrated regret and insight into his offending.

9. [120]

   As for the applicant’s PTSD, I am satisfied that that his moral culpability is slightly reduced because of that fact but that other purposes of sentencing are important. Those other sentencing purposes include specific deterrence in relation to his drinking. His criminal history discloses a pattern of alcohol-related offending, and he has been able to abstain when ordered to do so. Consistent with the principles derived from Munda, another sentencing purpose is denunciation given the nature of the offence being an offence of violence with a weapon towards a defenceless woman.

10. [121]

    I have considered some of the other decisions relied upon by the applicant.

11. [122]

    In Lewin v R [2017] NSWCCA 65, the 18-year-old offender smashed a glass bottle into the victim’s face at a party causing extensive bone fractures near his right eye, bruising, two broken teeth and significant impairment to vision. The offender had favourable prospects of rehabilitation and showed remorse. He was sentenced following a trial. He was diagnosed with PTSD “which may have played a role in his offending”. He had no criminal history and had never been involved in a fight before. The offence was assessed as being above low-range but below mid-range objective seriousness. A head sentence of 3 years and 9 months and a non-parole period of 2 years and 3 months imprisonment was imposed.

12. [123]

    In Daniels v R [2016] NSWCCA 35, the offender hit the victim with a single punch to the jaw without warning and used significant force. He did not use a weapon. He had mistakenly thought that the offender had assaulted his friend. The victim received a fractured jaw, misalignment of upper and lower teeth, had surgery to fix fractures and bone plates and screws inserted. The offender received a 25% discount for his guilty plea, had ADHD and other mental health issues, was remorseful, had previous convictions for serious personal violence and was on conditional liberty. The offending was assessed as being in the mid-range of objective seriousness. A head sentence of 4 years and 6 months imprisonment with a non-parole period of 3 years was imposed.

13. [124]

    In Ross v R [2012] NSWCCA 161, the offender had hit the victim from behind on the left side of his back and to the elbow with a long piece of wood. The victim suffered internal injuries, scarring from surgery and had his spleen removed. The offender received a 10% discount for his late plea of guilty. He had a prior criminal history, was a drug user and was not motivated to address a substance abuse problem. The offence was assessed as being of mid-range objective seriousness. On appeal to this Court, his sentence was reduced to a head sentence of 3 years and 8 months imprisonment with a non-parole period of 2 years and 9 months.

14. [125]

    As is often the case, no cases are ever truly comparable, but I have found these decisions to be of some assistance.

15. [126]

    Having considered all of the relevant subjective and objective factors, I have arrived at an aggregate sentence that is slightly longer than that imposed on the applicant by the sentencing judge.

16. [127]

    Although the language of s 6 of the Criminal Appeal Act permits this Court to impose a sentence that is “more or less severe” than that imposed at first instance, it is not the practice of this Court to impose a more severe sentence. As I observed in RO v R [2019] NSWCCA 183 at [119], the usual practice of this Court is that after hearing oral submissions the decision is reserved and judgment delivered at a later date. This practice renders it impractical to reconvene the court to give a “Parker” warning if a conclusion is made that a higher sentence is warranted in law: Parker v Director of Public Prosecutions (1992) 28 NSWLR 282.

17. [128]

    I do not consider it appropriate to state what that higher aggregate sentence was for the reasons explained in RO v R at [123].

18. [129]

    In these circumstances I would dismiss the appeal.

Orders

1. [130]

   Accordingly, I would propose the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is dismissed.

2. [131]

   IERACE J: I agree with N Adams J.

3. [132]

   SWEENEY J: I agree with N Adams J.