Doig v R

1. [1]

   BEECH-JONES CJ at CL: The background to this application for leave to appeal against sentence is set out in the judgment of Yehia J. The focus of the appeal concerned the length of the indicative sentence for the offence under s 272.11 of the Criminal Code Act 1995 (Cth) (“Criminal Code”). This is not surprising given that sentence was clearly the major contributor to the aggregate sentence. That said, to succeed on the single ground of appeal the applicant had to demonstrate the aggregate sentence was manifestly excessive and specifically address whether the aggregate sentence reflected the totality of the criminality involved (JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CJ and Adamson J (as her Honour then was) agreed at [1] and [107]). For the reasons given by Yehia J, but subject to the three points that follow, I am satisfied that is so.

2. [2]

   First, one difficulty for the applicant in attacking the indicative sentence for the offence under s 272.11 is the lack of published sentences for offences under that provision. The absence of such decisions makes it difficult to establish and then rely on some appropriate range for such sentences. Understandably, the parties referred to the decision of this Court in Baden v R [2020] NSWCCA 23 (“Baden”) and its discussion of the various factors affecting an assessment of the objective seriousness of an offence under s 272.11 (at [27]).

3. [3]

   Some support for the applicant’s argument can be derived from the terms of s 272.11(1) of the Criminal Code, which provides:

4. [4]

   One factor bearing upon an assessment of the objective seriousness of an offence under s 272.11 is the type (and seriousness) of the underlying offence which engages the provision. This is reflected in the different maximum sentences for the underlying offences, which currently is imprisonment for 25 years for offences under ss 272.8(1) and 272.8(2) and imprisonment for 20 years for offences under ss 272.9(1) and 272.9(2). Further, depending on the circumstances, whether the sexual intercourse was engaged in in the presence of the defendant or not may reflect on the objective seriousness of the offence.

5. [5]

   The appalling conduct of the applicant in this case involved an underlying offence under s 272.9(1), that is, it involved engaging in sexual activity other than sexual intercourse with a child outside Australia and was not engaged in the presence of the defendant outside Australia. The underlying offences in Baden also appear to have been offences under s 272.9(1) (see Baden at [5]). Both Baden and this case involved the offender causing the child to engage in the relevant sexual conduct over an internet-based platform.

6. [6]

   In considering a contention that a sentence for a federal offence is manifestly inadequate or excessive, this Court should have regard to sentences imposed by courts of other states or territories, especially an intermediate Court of Appeal (Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [53] and [57]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40]−[41])). In R v Harrison; Ex parte Director of Public Prosecutions (Cth) (2021) 294 A Crim R 1; [2021] QCA 279 (“Harrison”), the conduct of the offender that amounted to an offence under s 272.11 involved him travelling to the Philippines on a number of occasions and paying to have various forms of sex with a girl aged between 14 and 15 as well as engaging in “highly sexualised and graphic communications” with her from Australia (at [8]−[18] and [66]). This conduct appears to fall within s 272.11(1)(b); that is, the underlying offence was under s 272.8(2) (causing a child to engage in sexual intercourse in the presence of the defendant outside Australia). In Harrison, the offender was sentenced at first instance to 6 years and 6 months imprisonment for the offence under s 272.11(1) and resentenced on appeal to 7 years imprisonment. In Harrison, the Queensland Court of Appeal observed that the offending in Baden was worse than the offending before it (at [69]). With respect, I am doubtful of that conclusion given that the offender in Harrison travelled to the Philippines and had sex with his victim, although the victims who engaged in sexual acts over the internet in Baden were much younger. Leaving that aside, the sentence imposed in Harrison (and Baden) supports the applicant’s argument in this case.

7. [7]

   Second, Yehia J is critical of a submission by the Crown that compares the maximum sentence imposed to an assessment of the objective seriousness of an offence measured by its position in some hypothetical range of offences. Her Honour expresses a concern that such a submission tends to elevate the objective seriousness of an offence to become the only, or primary, measure by which to test the appropriateness of a sentence and masks the relevance and importance of other factors relevant to an instinctive synthesis.

8. [8]

   Although there is no requirement for an assessment of objective seriousness to be undertaken by reference to some hypothetical range of offending, the assessment is nevertheless a critical aspect of the sentencing process (see DS v R; DM v R [2022] NSWCCA 156). At least one aspect of the significance of determining the objective seriousness of an offence is that it engages the proportionality principle; that principle precludes the imposition of a sentence that exceeds that which can be justified as appropriate or proportionate to the gravity of the crime considered in the light of its objective circumstances (Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33 at 354). However, at least in the case of serious crimes of the kind usually considered by this Court, such as this one, it has a significance beyond that. Thus, in R v Dodd (1991) 57 A Crim R 349 at 354, Gleeson CJ, Lee CJ at CL and Hunt J observed:

9. [9]

   It follows that a submission that compares the objective seriousness of an offence to the maximum penalty has utility, although it needs to be understood in a context whereby it is not determinative of a claim of manifest excess or inadequacy.

10. [10]

    Third, in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [156], Spigelman CJ (with whom Mason P, Barr J, Bell J and McClellan J agreed) observed that the “reasoning in Hoare appears to me to necessarily involve separate consideration of the sentence appropriate to the objective circumstances of the offence” and added that “[a]lthough expressed as an upper limit – a sentence cannot be greater than the objective circumstance suggest – it has been applied to create a lower limit – a sentence should not be less than the objective circumstances require” (at [156]; “Whyte”). It is not clear whether this statement purported to state a principle or simply recorded the effect of other cases. If it was the former, then a question arises as to whether reliance on the proportionality principle to create in effect a minimum sentence for an offence of a particular level of objective seriousness is consistent with Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25. I do not consider it is necessary to resolve that question. The above points are not meant to be an endorsement of this aspect of Whyte nor a disapproval of it.

11. [11]

    I agree with the orders proposed by Yehia J.

12. [12]

    GARLING J: I agree with the orders proposed by Yehia J and with her Honour’s reasons.

13. [13]

    YEHIA J: Jonathan Peter Doig (the applicant) seeks leave to appeal against the aggregate sentence of imprisonment imposed upon him by her Honour Judge O’Rourke SC (the sentencing Judge) in the District Court at Sydney on 17 December 2021 for four offences against the Criminal Code Act 1995 (Cth) (Criminal Code).

14. [14]

    The applicant pleaded guilty to the offences when the matter was before the Local Court on 27 July 2021 and was committed to Sydney District Court for sentence. Having regard to the early plea, her Honour applied a 25% discount to the indicative sentences.

15. [15]

    Her Honour imposed an aggregate term of imprisonment of 9 years, commencing on 3 December 2021 and expiring on 2 December 2030, with a non-parole period of 5 years and 6 months imprisonment, commencing on 2 December 2021 and expiring on 2 June 2027.

16. [16]

    The offences, the applicable maximum penalty, and the indicative sentences that her Honour otherwise would have imposed are summarised as follows:

17. [17]

    The applicant relied on a single ground of appeal, namely, that the sentence imposed was manifestly excessive. For the reasons explained below, leave to appeal should be granted, the appeal allowed, and the applicant should be re-sentenced to a lesser term of imprisonment.

18. [18]

    It is appropriate to note that the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 amended the Criminal Code to include a list of child sexual offences now subject to the imposition of a mandatory minimum sentence. The Bill was passed on 16 June 2020 and assented on 22 June 2020. One of the offences for which the applicant was sentenced (sequence 4 – s 272.11(c) of the Criminal Code), is now subject to a mandatory minimum term of 7 years imprisonment.

19. [19]

    However, the new mandatory minimum regime does not apply to this case. It follows that the determination of this appeal is based on the penalties that applied at the time.

The Offending

1. [20]

   Over a period between 23 August 2019 and 9 June 2020, the applicant engaged in conduct that included arranging for the transfer of various sums of money to MT (the victim), who was a 13-year-old Filipina child, and two other people associated with MT. From 23 December 2019, the applicant communicated with the victim using the Facebook Messenger application on his mobile telephone, with the intention of procuring her to engage in sexual activity (sequence 1).

2. [21]

   In relation to sequence 1, there was a dispute regarding the commencement date of the offence. The Crown submitted that the offending commenced on 23 August 2019, when the payments to MT commenced. The applicant argued that while his first payment to MT was on 23 August 2019, he did not communicate with her until approximately four months later. The applicant submitted that in the circumstances, there was nothing to suggest that the 21 payments made during that four-month period were related to unlawful activity.

3. [22]

   Her Honour rejected the suggestion that the 21 payments were for “charitable purposes”. There is no challenge to her Honour’s findings that the offending, the subject of sequence 1, commenced on 23 August 2019.

4. [23]

   During the period between 23 August 2019 to 9 June 2020, the applicant received messages from MT asking for money for a variety of purposes, including school-related expenses, the internet, medical expenses, and the cost-of-living necessities. The applicant also sent MT money to purchase a bikini, which was said to be a gift. A total of 34 payments were made via WorldRemit marked for “Maribel CP”. The last of the transactions was on 6 June 2020.

5. [24]

   In addition, the applicant made 21 transactions using WorldRemit to “Vilma” at the request of MT. Those payments took place between 25 January 2020 and 28 May 2020. Between 11 April 2020 and 7 June 2020, the applicant made 12 further transactions using WorldRemit to “Nestor Fradi” at the request of MT.

6. [25]

   Although for a period, the applicant initially responded minimally to the suggestive messages from the victim, he engaged more regularly with her from 18 January 2020. The conduct, constituting sequence 1, was comprised of the transactions set out above and communications between the applicant and MT. Her Honour found that the payments to the victim were expressly sought for providing the applicant with sexual videos or images of herself.

7. [26]

   Sequence 5 had a degree of overlap with sequence 1. Some of the communications and payments in the period between approximately 28 January 2020 and 9 June 2020, resulted in the victim sending the applicant several video and image files. The images focused on her genital region or depicted her involved in a sexual act (for example, simulating masturbation or oral sex). The communications included a “secret conversation” between 21 May 2020 and 7 June 2020. This resulted in the victim sending videos of herself dancing in a sexualised manner, constituting child abuse material (category 2). A further 18 files of child abuse material (category 2) were found on the applicant’s Samsung mobile phone.

8. [27]

   Sequence 4 related to three separate occasions between 2 April 2020 and 3 April 2020, when the applicant used his Samsung mobile phone to conduct video calls with the victim via Facebook Messenger, during each of which, the victim engaged in sexual activity while the applicant watched in real-time (sequence 4). Her Honour noted that:

9. [28]

   Her Honour summarised the contents of the video calls. One went for seven minutes and four seconds, which was a video of MT fully naked, dancing provocatively for the applicant in a bathroom. During that video, the applicant appears to be talking and his lips are moving. The applicant is making a “come closer” gesture with his hands and directing the victim to lift her leg. The applicant performed a licking motion multiple times.

10. [29]

    The second video had a duration of four minutes and 42 seconds. It depicts MT topless and focuses on her breasts. The third video had a duration of three minutes and 35 seconds, depicting MT with her breasts exposed, and appeared to be a continuation of the second video. MT was dancing provocatively and removes her shorts to reveal her underwear. The fourth video had a duration of three minutes and 15 seconds. MT is completely naked, dancing and moving provocatively while the applicant appears to be talking to her. The video also depicted MT masturbating, sucking her finger, and moving back and forth.

11. [30]

    On 9 June 2020, the Australian Federal Police (AFP) executed a search warrant at the applicant’s home. The applicant directed the police to his phone and provided his PIN code for the device. An examination of the phone identified that it contained 26 video files depicting the victim, four of which were the recordings of the video calls, the subject of sequence 4. A further four of the video files were the videos that the applicant received because of the “secret conversation”, which is part of the offending that is the subject of sequence 5. The remaining 18 video files, which were also received as part of the offending that is the subject of sequence 5, ranged in duration from one minute to two minutes and 11 seconds. They depicted the victim engaging in sexual acts, classified as category 2. There was also an image of the victim playing with her breasts, and a further 28 images of other unidentified children, assessed as categories 1 and 2. This is the offending that constituted sequence 3.

Remarks on Sentence

1. [31]

   The exploitative nature of the offences was noted, her Honour referring to the victim being:

2. [32]

   In relation to the nature and circumstances of the offending, relevant to assessing the objective seriousness of sequences 1 and 4, her Honour referred to the factors identified in Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 (Beattie) at [127]. Overall, her Honour concluded as follows:

3. [33]

   Her Honour found that the applicant’s conduct was opportunistic and sustained. It was not systematic, elaborate, or overly sophisticated. The simplicity of the offending demonstrated the ease with which the offences occurred, and the importance of general and specific deterrence.

4. [34]

   As to the applicant’s subjective case, her Honour noted that the applicant was 59 years old at the time of sentence, and 57 years old at the time of the offending. He obtained a scholarship to Sydney Grammar School. He was academically gifted. He enrolled in a Bachelor of Arts degree at the University of New South Wales (UNSW) and eventually converted to a science degree. He worked as a software engineer and was employed at UNSW. He had been involved in political activism for 30 years, and, in 2019, ran against Scott Morrison as a Greens candidate.

5. [35]

   The applicant did not suffer from major psychiatric disturbance beyond his paedophilia behaviour. The applicant reported symptoms of depression and anxiety due to the sentence proceedings, which were exacerbated due to his marriage breaking down, his relationship with his daughter deteriorating, and the significant media interest.

6. [36]

   Her Honour referred to the expert reports tendered on behalf of the applicant. The applicant had consistently expressed remorse for his offending to the psychologists and to those who provided character testimonials. The applicant had completed 27 sessions of treatment with Dr Milic and commenced a sex offender treatment program on 4 June 2021, completing 19 sessions. Dr Seidler reported progress in the program after the applicant initially came across as defensive, abrasive, dismissive, and disrespectful.

7. [37]

   It was observed that the applicant tended to be quite easily overwhelmed and dysregulated in the context of strong emotion. His level of engagement increased, and he actively participated in the program, demonstrating some insight into his patterns of sexualised coping and intimacy. Both factors contributed contextually to his offending behaviour.

8. [38]

   Mr Watson-Munro reported that the applicant initially attempted to rationalise his conduct. However, the applicant did acknowledge the wrongfulness of his actions. In relation to the risk of reoffending, Dr Milic opined that the applicant had good prospects of rehabilitation. Mr Watson-Munro was of the view that there were several protective factors, including the applicant’s strong commitment to treatment and his work history, which would operate to reduce the likelihood of reoffending.

9. [39]

   Her Honour accepted that the applicant was contrite. In respect of his prospects of rehabilitation, her Honour noted:

10. [40]

    The applicant endured the loss of his marriage, employment, reputation, and, in addition, intense media attention. Her Honour concluded that these matters constituted “a degree of extra curial punishment.”

11. [41]

    In considering the issue of accumulation and concurrency, her Honour had regard to the differing criminality involved in the offences, but also considered that there was significant overlap in sequences 3 and 5, and a general overlap between all of the offences. Her Honour also considered, and applied, the principles of totality and proportionality.

12. [42]

    The applicant does not challenge any of the findings made by the sentencing Judge.

The Appeal

1. [43]

   The applicant relied on a single ground of manifest excess. The applicant submitted that error arose because of the high starting point, namely, 10 years imprisonment, adopted for the indicative sentence for sequence 4. The applicant contended that this had led to the inflation of the aggregate sentence ultimately imposed.

2. [44]

   In support of that contention, the applicant referred to Baden v R [2020] NSWCCA 23 (Baden), contrasting the factors relevant to the assessment of objective seriousness in the respective case. The applicant submitted that the factors evident in Baden involved a higher degree of objective seriousness. The applicant submitted that it is difficult to ascertain how the starting point for the sentence indicated in relation to sequence 4 could have been higher than the starting point in Baden, in circumstances where it involved the same offending conduct in respect of sequence 3 in that case. The starting point in respect of sequence 3 in Baden was approximately 8 years and 11 months imprisonment.

3. [45]

   The respondent submitted that the difficulty with the applicant’s contention is that it elevates the sentence imposed in Baden to the status of a marker. Against which, the sentence in this matter is to be assessed, and then to determine whether it is unreasonable or plainly unjust. The respondent also conducted a comparison between the relevant objective factors in this case and in Baden, concluding that the aggregate sentence imposed was not unreasonable or plainly unjust.

4. [46]

   The applicable principles are well-known and were conveniently summarised in Baker v R [2022] NSWCCA 195 at [117]-[119] by N Adams J:

5. [47]

   At present, there is not a sufficient body of intermediate appellate cases concerning offences against s 272.11(1) of the Criminal Code that might provide comparative cases from which to determine a discernible sentencing pattern and possibly a range of sentences against which to examine a proposed or impugned sentence: see The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [50].

6. [48]

   The absence of sufficient comparable cases does not, however, mean that manifest excess cannot be demonstrated. Manifest excess may be shown by a consideration of all the relevant features of the case. The task of determining whether a sentence is unreasonable or plainly unjust is an evaluative one. As Wilson J (with whom Beech-Jones CJ at CL and Garling J agreed) stated in SB v R [2022] NSWCCA 164 at [55]:

7. [49]

   Clearly, the sentence imposed in Baden does not provide guidance in respect of numerical equivalence. However, the case provides some assistance, insofar as it adopts the 14 factors of relevance to an assessment of objective seriousness for offences against ss 272.8(2) and 272.9(2) of the Criminal Code, as were identified in Beattie at [127].

8. [50]

   What must be remembered is that Division 272, Subdivision B of the Criminal Code, encompasses a range of offending conduct which includes sexual intercourse outside of Australia: see ss 272.8(1) and 272.11(1)(a). All other things being equal, an offence that involves engaging in sexual intercourse with a child outside of Australia will be more objectively serious than engaging in sexual activity, which does not include sexual intercourse.

9. [51]

   To the extent that a comparison of the objective factors in this case and in Baden is useful, Mr Baden committed offences against two children. The elder child was aged between 6 and 11 years and 9 and 10 years, respectively. The younger child was between the ages of 2 and 7 years at the time of the offences.

10. [52]

    The overall offending occurred over a period of approximately four years, with the conduct constituting the offence of engaging in persistent sexual abuse of a child outside Australia, taking place over a period of two months.

11. [53]

    Mr Baden pleaded guilty on the first day of trial. A discount of 10% was applied to reflect the utilitarian value of his plea. The undiscounted indicative sentence for the offence of engaging in persistent sexual abuse of a child outside Australia, (count 3) was approximately 8 years and 11 months imprisonment.

12. [54]

    The respondent has brought to the Court’s attention the decision in R v Harrison; Ex parte Director of Public Prosecutions (Cth) (2021) 294 A Crim R 1; [2021] QCA 279 (Harrison). In Harrison, the Supreme Court of Queensland dealt with a Crown appeal against a sentence imposed on the respondent in respect of five counts involving sexual misconduct, including persistent sexual abuse of a child outside of Australia. The offences were as follows:

13. [55]

    Counts 1, 5 and 7 related to victim R. Count 1 involved the respondent engaging in sexual intercourse with R, a Filipina girl aged between 14 and 15 years, on three separate occasions and over a period of approximately nine months. The sexual intercourse involved both digital and penile-vaginal penetration. The respondent paid the victim a small sum of money at the conclusion of each act and was sentenced on the basis that he exploited the victim, a girl who, by reason of her age and economic circumstances, was vulnerable to his predations.

14. [56]

    The overall sexual misconduct involved three victims. The offending constituting count 2 involved another Filipina child, B, whose age was undetermined. This offending occurred over a relatively extended period. The respondent used a combination of inducements, threats, and emotional manipulation to coerce the victim into taking pornographic images of herself according to the respondent’s specific instructions, including images of her defecating.

15. [57]

    As to count 4, the respondent sent an image of child pornography material to another person via Facebook Messenger. The image depicted a naked pubescent female child, M, sitting on her knees on a bed, leaning back. The respondent informed the recipient that M was only 16 years of age.

16. [58]

    The respondent was aged between 62 and 63 years at the time of the offending. He pleaded guilty on the first scheduled day of his trial. The total effective sentence that was imposed by the sentencing Judge was 6 years and 6 months imprisonment with a non-parole period of 2 years and 6 months imprisonment. In respect of count 1, the proposed sentence was 6 years imprisonment, prior to the addition of 6 months imprisonment to reflect some accumulation.

17. [59]

    In upholding the Crown appeal and re-sentencing the respondent, a sentence of 7 years imprisonment was indicated in respect of count 1, being the sentence that would have been imposed, before considering questions of concurrency, accumulation, and totality. Following re-sentencing, the total effective sentence was 8 years imprisonment, with a non-parole period of 5 years imprisonment.

18. [60]

    The applicant in the present case engaged in predatory conduct that involved the exploitation of a 13-year-old child. Her Honour was correct, with respect, to describe the victim as clearly vulnerable and in desperate need of money for the basic necessities of life. There was a degree of control exercised by the applicant, including directing the victim while she was being recorded. The applicant manipulated and used her vulnerability to satisfy his own sexual desires.

19. [61]

    The applicant’s overall criminal conduct was very serious, warranting as it did the imposition of full-time imprisonment. The offending in respect of sequence 4 did not, however, involve multiple children, cruelty, or physical harm. The applicant’s conduct was opportunistic and sustained, although not systematic, elaborate, or overly sophisticated.

20. [62]

    The sexual offence was viewed live by the applicant only, as opposed to being viewed by several persons or live-streamed to others. There is no evidence that the applicant had an intention to disseminate the recordings to other persons or to receive any payment or material benefit from them. Although the overall criminal conduct lasted for approximately eight months, the behaviour constituting the offence of engaging in persistent sexual abuse of a child outside of Australia (sequence 4), took place over a period between 2 April 2020 and 3 April 2020.

21. [63]

    Specific and general deterrence, denunciation, punishment, and the protection of the community are very important sentencing considerations in offences such as this. There is a public interest in denouncing the corruption and sexual exploitation of children and promoting their protection.

22. [64]

    Considering the objective factors correctly identified by the sentencing Judge, her Honour’s assessment of the objective seriousness for each offence was entirely appropriate. No complaint is made with respect to the assessment of objective seriousness. In relation to sequence 4, her Honour found that the objective seriousness was “towards mid-range”.

23. [65]

    It is difficult, however, to ascertain how her Honour settled on a starting point of 10 years imprisonment for sequence 4. Insofar as any comparison with the facts in Baden and Harrison assist, the objective factors in those cases, were more grave than the objective factors in the present case.

24. [66]

    The applicant’s subjective case is a compelling one. He pleaded guilty at an early opportunity and was found to be contrite, having “consistently expressed remorse for his offending”. The applicant engaged in counselling before his incarceration and was willing to continue with the treatment. He demonstrated a strong desire for assistance, which bodes well for his prospects of rehabilitation. He had no prior convictions of significance and had been gainfully employed for decades before being taken into custody.

25. [67]

    Her Honour considered several matters in concluding that there was a degree of “extra-curial punishment”. Overall, these were powerful subjective factors relevant to the formulation of the indicative sentences and the aggregate term of imprisonment.

26. [68]

    When considering an appeal against manifest excess, the appeal is against the aggregate sentence, as opposed to the indicative sentences recorded. However, in the present case, a starting point of 10 years imprisonment for the indicative sentence on sequence 4 was excessive and operated, in my view, to inflate the aggregate sentence. But even putting the indicative sentence for sequence 4 to one side, I am satisfied that the applicant has made good his claim that the aggregate sentence imposed, both in terms of the head sentence and the non-parole period, is manifestly excessive.

27. [69]

    Before I turn to the issue of re-sentencing, it is important to note an observation with respect to the respondent’s written submissions. The use of an arithmetic approach to test the appropriateness or otherwise of an indicative or aggregate sentence by reference only to the objective seriousness of an offence tends to ignore the requirement that a sentencing Judge engage in a process of instinctive synthesis, taking into account all relevant factors. The respondent submitted:

28. [70]

    This submission seeks to demonstrate the appropriateness of the indicative sentence by way of an arithmetic calculation of the percentage of the maximum penalty, having regard to the description of the offence as “towards the mid-range”. Such a submission tends to elevate the objective seriousness of an offence as the only, or primary, measure by which to test the appropriateness of a sentence (whether that be the indicative or aggregate sentence). Such an approach masks the relevance and importance of other factors relevant to an instinctive synthesis approach to sentencing, namely, matters subjective to an offender.

29. [71]

    As manifest excess has been established, the Court must exercise the sentencing discretion afresh: see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. There was no challenge to any of the findings made by her Honour as described above.

30. [72]

    The affidavit, deposed by the applicant (dated 6 March 2023), was read in this Court on the “usual basis”: see Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]. In his affidavit, the applicant stated that he has been employed as a clerk in textiles. He has maintained his employment during his period in custody.

31. [73]

    The applicant has made numerous attempts to enrol in further tertiary education. Dr Seema Sandhu supported his application to enrol in a Master’s Degree in Environment and Climate Emergencies at Curtin University. The application to enrol in this degree was not supported by Mr Burkitt, who had the responsibility of arranging inmate education. The enrolment was not supported because of a lack of resources to facilitate the applicant’s participation in the course. The applicant has written to the Governor of the Metropolitan Special Programs Centre (MSPC) requesting further consideration of his application.

32. [74]

    In re-sentencing the applicant, I reach the same view as the sentencing Judge concerning the indicative sentences with respect to sequences 1, 3 and 5. However, having regard to the objective factors and the applicant’s subjective case, I am of the view that the indicative discounted sentence in respect of sequence 4 should be 6 years imprisonment.

33. [75]

    In determining the length of the aggregate sentence, I have had regard to the principle of totality. There will be partial accumulation reflected in the aggregate sentence. However, the extent of accumulation is tempered, having regard to the degree of overlap between some of the offences.

34. [76]

    The applicant is being sentenced for federal offences, and therefore, special circumstances is not a relevant consideration. The non-parole period must reflect the minimum time that justice requires that the applicant must serve, having regard to all the circumstances of the offences: see Power v The Queen (1974) 131 CLR 623; Bugmy v The Queen (1990) 169 CLR 525; 47 A Crim R 433.

35. [77]

    The structure of the proposed sentence will reflect a similar ratio between the head sentence and the non-parole period as intended by the sentencing Judge.

Proposed Orders

1. [78]

   Accordingly, I would propose the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is allowed.

   3. (3)

      The sentence imposed on the applicant in the District Court on 17 December 2021 is set aside, and in lieu thereof: