Lawrence v R

1. [1]

   GLEESON JA: I agree with Wilson J.

2. [2]

   DAVIES J: I agree with Wilson J.

3. [3]

   WILSON J: On 27 August 2021 the applicant, Jerome Lawrence, was sentenced before the District Court at Campbelltown for a number of offences that were before the court by way of indictment, on a Form 1 document pursuant to ss 32 and 33(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), or pursuant to ss 166 and 167 of the Criminal Procedure Act 1986 (NSW). Taking into account the six offences on two Form 1 documents her Honour Judge Baly SC imposed an aggregate sentence of 6 years and 6 months imprisonment with respect to counts 1 and 2. A non-parole period (“NPP”) of 4 years was fixed. The sentence commenced on 15 October 2019 and expires on 14 April 2026. The earliest release date is 14 October 2023.

4. [4]

   The table below sets out the mechanism by which each offence was before the court; the details of those offences, maximum penalties, and any standard non-parole period (“SNPP”) that applies; and the indicative sentences announced with respect to the offences on indictment.

5. [5]

   The applicant seeks both an extension of time in which to file an application for leave to appeal against the sentence, and leave to appeal, raising a number of proposed grounds, as follows:

   1. (1)

      “The sentencing judge erred by aggravating the offending by reason of the applicant’s criminal history;

   2. (2)

      The sentencing judge erred in her assessment of the objective seriousness of the offending without reference to the applicant’s reduced moral culpability and mental health conditions;

   3. (3)

      The sentencing judge erred in finding that the applicant’s drug use from an early age did not amount to a mitigating factor;

   4. (4)

      The sentencing judge erred in double counting the presence of the knife in Count 1, both in determining where on the scale of seriousness the offending sat and also by counting it as an aggravating factor;

   5. (5)

      The sentencing judge erred in imposing a sentence that was manifestly excessive”.

The Proceedings in the District Court

1. [6]

   The applicant was committed for trial on 10 June 2020. He was arraigned before the District Court on 2 July 2020, entering pleas of not guilty to all charges brought against him. A trial date of 26 April 2021 was fixed. The trial was marked not reached on 28 April, and a second trial date, of 15 June 2021, was fixed. The applicant made a plea offer to the Office of the Director of Public Prosecutions on 28 April 2021, and the offer was subsequently accepted. Pleas were entered to counts 1 and 2 of the indictment, and to the charge on the s 166 certificate, on 3 June 2021. The applicant acknowledged his guilt with respect to the six charges on the two Form 1 documents. The pleas were thus entered at a very late stage of proceedings.

2. [7]

   The sentence hearing took place on 25 August 2021.

3. [8]

   A statement of agreed facts set out the circumstances of the offending. All offences related to the same victim, the applicant’s former de facto wife and mother of his young son, Ms B. The couple had been involved in a relationship over about 10 years that had been marked with incidents of violence and threats towards Ms B. The applicant had been previously imprisoned for assaulting, intimidating, and threatening her, and for breaching court orders made for her protection.

4. [9]

   On 9 October 2019 the applicant was released from prison. At the time, he was subject to an Apprehended Domestic Violence Order (“ADVO”) which had been imposed upon him for Ms B’s protection. Despite the existence and terms of the order, Ms B was asked by staff of Corrective Services NSW to collect the applicant upon his release from custody, and she did so, remaining with him for the day, together with their son. (This breach of the ADVO was reflected by sequence 1, dealt with in the sentencing court on the s 166 certificate.) Ms B drove the applicant to his home and left with her son.

5. [10]

   Two days later Ms B went to work as usual, leaving her son in the care of her father. She returned home from work with her son late that evening. Although she had been careful not to disclose her home address to the applicant, when she entered the house, she found him sitting in her lounge room, he having been at her home since earlier in the afternoon. (This attendance at Ms B’s home contrary to the ADVO was reflected by sequence 2, taken into account on a Form 1 to count 1.)

6. [11]

   Ms B answered a telephone call soon after returning home, speaking briefly to the caller. After she ended the call, the applicant asked her about the caller. When Ms B said the caller was a man she had been seeing, the applicant became agitated and abusive. He called the victim a “slut” and a “dog” and told her he was going to kill her. He went into the kitchen and took hold of a steak knife some 10 – 15cm in length and, with the weapon in hand, told his former partner that she was “just a slut”. Ms B was terrified. (This threat whilst armed, intimidating the victim, was reflected by count 1 on the indictment.)

7. [12]

   Ms B spoke with the applicant, and he calmed down. He remained at her home overnight.

8. [13]

   The applicant spent the following day, 12 October 2019, at Ms B’s house with her and their son. At about 5pm that day Ms B’s mother arrived at the house, an arrangement having earlier been made that she would look after Ms B’s son whilst the victim went to a family event at a local hotel. The applicant left with Ms B, and she dropped him to his relative’s house before attending the event. During the evening the applicant sent Ms B text messages as well as telephoning her, telling her that he wanted her to pick him up. (The telephone contact was in breach of the ADVO and was reflected by sequence 26, taken into account on sentence when count 2 was dealt with.)

9. [14]

   Ms B chose not to collect the applicant, but drove straight to her home, arriving at about 2am. When she got there, she saw the applicant in the driveway. (This breach of the ADVO was reflected by sequence 5, taken into account on the Form 1 document to count 2.)

10. [15]

    The applicant approached the victim as she sat in her car and, opening the passenger door, hit her in the head, causing her pain. He then went to the driver’s door and, moving Ms B into the passenger seat, got into the driver’s seat and reversed the car out of the driveway. (Driving off in Ms B’s car with her in it was reflected by count 3, which was taken into account on a Form 1 document on sentence with respect to count 2. This conduct was also the commencement of the conduct reflected by count 2, the aggravated kidnapping of Ms B.) As the applicant drove off, he told Ms B, “I’m going to fucking kill you”. He then began asserting, in offensive terms, that she had been sexually involved with a particular individual. Although she denied it, the applicant continued to abuse Ms B, demeaning her with allegations of sexual activity. The applicant also struck Ms B a number of times as he drove, and threatened her. She was very frightened and in pain from the blows.

11. [16]

    The applicant drove from the Minto area to Campbelltown, and thence towards Wollongong, striking and abusing Ms B throughout the drive, and threatening her. His management of the vehicle was erratic, and he drove at speed, causing further fear to Ms B.

12. [17]

    At Kanahooka the applicant stopped for fuel. Surveillance footage from the service station recorded Ms B sitting in the passenger seat of the car, with her knees drawn up to her chest, and both hands raised to the sides of her face. When the applicant went to pay for the fuel, he told Ms B that he would kill her if she tried to run away. She remained in the car.

13. [18]

    The applicant drove off, continuing to drive in the same erratic and frightening manner, and continuing to abuse, threaten, and assault Ms B. When she told him she needed to use a toilet the applicant refused to stop or allow her to get out of the car. She was forced to defecate into her clothing and urinate into a cup she found in the car. The applicant continued driving, around the areas of Figtree and Warrawong.

14. [19]

    At Warrawong the applicant stopped at an address and armed himself with a knife. After driving on to Figtree the applicant held the knife to Ms B’s leg and again threatened to kill her. (This was reflected by count 5, taken into account on a Form 1 when sentence was imposed for count 2 on indictment, an offence of aggravated drive motor vehicle with person in it, the circumstance of aggravation being the fact that the applicant was armed). Ms B reached out to take hold of the applicant’s hand, trying to calm him and stay the knife. Her hand was still restraining his when he was recorded by CCTV as he drove through a fast food restaurant driveway, where he stopped and bought food for himself. Ms B is shown on the footage sitting in the passenger seat, against the door, as far away as it was possible for her to be from the applicant whilst still within the car.

15. [20]

    The applicant drove on towards Wollongong, where he stopped at a clinic to collect a Methadone prescription. As he left the car, he again threatened Ms B, telling her that he would kill her if she tried to run. After he entered the clinic Ms B got out of the car and, despite the threats made by the applicant and her terror, she ran, without shoes, and leaving the door of the car wide open; she carried no possessions.

16. [21]

    Terrified that the applicant would come after her, Ms B ran towards Wollongong Hospital, which she entered at 11.35am, over 9 hours after her ordeal had begun. She asked for help and police were called. On examination, Ms B was found to have sustained multiple bruises to her face, multiple bruises to her scalp, bruising and swelling to both lips, and haemorrhaging into one eye. She also suffered bruising and tenderness variously to an arm, her left thigh, and her waist.

17. [22]

    The applicant, on leaving the Methadone clinic, returned to the car and drove off in Ms B’s car (conduct reflected by count 6, taken into account on a Form 1 when sentence was imposed for count 2). The vehicle was recovered by police the next day. The knife the applicant had used to threaten Ms B was inside. DNA consistent with that of the applicant was recovered from it.

18. [23]

    The applicant was arrested on 15 October 2019. He refused to be interviewed.

19. [24]

    A Victim Impact Statement was received by the sentencing court. In it, Ms B told the court about the long years of abuse at the applicant’s hands, and her terror when detained in the car by the applicant that he would kill her and leave their young son motherless. She referred to the little boy’s confusion and fear on seeing the black eyes, swollen nose and mouth and other injuries to his mother, and the fear that now follows both of them daily. Ms B lives with what she sees as a continuing threat to her life from the applicant. Both she and her son require trauma counselling. Ms B has had to install security cameras around her home.

20. [25]

    The applicant’s criminal history was also before the court. It commenced in 2001 with car stealing, possessing implements for that purpose, and destroying property. Bonds were imposed in the Children’s Court. A similar sentence was imposed the following year for an offence of common assault. In 2004 the applicant was cautioned in the Children’s Court for a 2003 larceny; and later in 2004 he was placed on probation for an offence of aggravated break, enter commit serious indictable offence.

21. [26]

    From 2007 there is another entry against the applicant in the Children’s Court for a 2006 offence of aggravated break, enter and commit serious indictable offence, penalised by a control order. A break, enter steal offence that occurred two months after that offence was also penalised by a control order, as was another aggravated instance of such an offence, committed two months later.

22. [27]

    Later in 2007 the applicant was again before the Children’s Court for offences of larceny and property damage, offences for which a period of probation was imposed, with a direction that the applicant participate in drug and alcohol counselling. The following year the applicant was ordered to undertake further counselling directed to drug and alcohol abuse, after being placed on a probation order by the Children’s Court for an offence of robbery in company. He breached the order, and was called up for the breach in 2009, with a 12 month control order imposed. A take and drive motor vehicle offence from 2009 was later dealt with, by way of a bond; whilst a breach of the bond saw the applicant incarcerated.

23. [28]

    Later in 2009 the applicant was convicted in the Local Court for a number of driving offences, offences that attracted fines and disqualifications from driving. Whilst still subject to the disqualification, in 2011, the applicant was dealt with for larceny (five counts) and receiving stolen property, two counts of attempted take and drive motor vehicle, and further driving offences, including engaging in a police pursuit, receiving terms of imprisonment upon conviction. In 2012 a short gaol term was imposed for an offence of dishonestly obtaining property by deception.

24. [29]

    Offences of failing to appear and aggravated break and enter are recorded from 2014 and, from 2015, offences of take and drive motor vehicle, assault occasioning actual bodily harm in company and drive whilst disqualified. Convictions for all of these offences were recorded in 2016, with further gaol terms imposed. An offence of driving whilst disqualified from that year saw the applicant imprisoned for 9 months, with a further disqualification from driving. In 2018 the applicant was convicted of a number of serious driving offences, committed in 2017, and an offence of common assault committed in 2018.

25. [30]

    On 12 July 2019 the applicant was sentenced with respect to a number of offences committed against Ms B. An offence of common assault was penalised by a fixed term of 5 months imprisonment, as was an offence of stalking or intimidation. Both sentences expired on 8 October 2019. The applicant was placed on a 12 month community correction order for contravening an ADVO, with supervision. That order appears to have been current at the time of the offending of 12 and 13 October 2019, as does a 12 month Commonwealth recognisance that had been imposed on 12 July 2019 for an offence of using a carriage service to threaten to kill Ms B.

26. [31]

    The applicant’s custodial history recorded revocations of parole from 2011, 2013, 2017, and May 2019; as well as eighteen institutional offences, such as intimidation and drug possession, from the period during which the applicant was remanded awaiting trial and then sentence.

27. [32]

    A Sentencing Assessment Report (“SAR”) had been ordered by the sentencing court. The author observed that the applicant had an extensive history of “problematic poly-substance abuse” commencing in his mid-teens, which remained unaddressed. The applicant’s past engagement with rehabilitation services was noted to have been superficial, and he continued to use illicit drugs on a daily basis in custody. In the past when subject to court ordered supervision the applicant’s engagement with intervention had been unsatisfactory, and breach action had been commenced against him.

28. [33]

    The applicant was said to have “a proclivity for violent offending and disregard for the law” and, whilst he “verbalised support of pro-social activities and lifestyle choices”, he appeared to the author of the SAR to be supportive of criminal behaviour and to accept little personal responsibility for his conduct. Despite the pleas of guilty it was noted that the applicant continued to deny the offences. The SAR recorded:

29. [34]

    Although the applicant retained the support of an aunt, with whom he intended to live when returned to the community, he was assessed as posing a high risk of re-offending.

30. [35]

    The applicant did not give evidence on sentence. He relied upon a psychological report prepared for the proceedings by Raymond Hudd, a “Consultant Psychologist, Criminal and Sport”. Mr Hudd noted that the applicant was aged 30 years and had grown up in a blended family, with three half-siblings, one of whom had died at a young age. He identified as aboriginal, as did his family. The applicant enjoyed a good relationship with his mother and siblings but had no contact with his father after his father left the family when the applicant was aged 9. Prior to that, the applicant reported that his father had been violent and abusive, directing his aggression to the applicant and his mother. As a consequence, the applicant had always felt terrified at home, until such time as his father left. In childhood the applicant said that he had been surrounded by alcohol and drugs, and [inconsistently with the history given to the author of the SAR] he claimed to have begun using alcohol, cannabis, and cigarettes at age 7. He said he was using methamphetamines by 11 years and heroin by 16 years. By 19 he used any drug he could obtain. He had spent a significant portion of his life in detention or custody.

31. [36]

    The applicant told Mr Hudd that he had been approached sexually by the principal of his school just before his expulsion in Year 5 and had been sexually assaulted in 2001 and 2003 when incarcerated in juvenile detention centres. He said he had never before disclosed the abuse.

32. [37]

    The applicant’s education was limited: after being expelled in Year 5 he did not return to school, despite the intervention of the educational authority.

33. [38]

    Mr Hudd observed the applicant to be anxious and occasionally withdrawn, with short periods of disassociation. Despite that, the applicant was friendly and engaged well. He was fully oriented and there was no indication of any psychotic phenomena. A self-reported trauma scale was administered, giving results that would ordinarily indicate that the test was invalid. Despite that, Mr Hudd analysed the results, which suggested highly elevated scores across every domain tested. This included elevated results for anxiety, depression, anger and irritability, intrusive experiences, defensive avoidance, dissociation, and impaired self-reference.

34. [39]

    Based upon his analysis of the results, the applicant’s presentation, and the history he gave, Mr Hudd suggested that the applicant had symptoms consistent with chronic complex post-traumatic stress disorder, a borderline personality disorder, and “Raped Trauma Syndrome”. He went on to describe each of these disorders and their symptoms. He opined that the applicant required psychological counselling that he said would not be available to the applicant in custody. Mr Hudd was willing to provide the necessary treatment to the applicant in the community.

35. [40]

    Although Mr Hudd did not diagnose any condition [that being beyond his qualifications and expertise] later in his report he referred to the applicant’s “diagnosed disorders” and the “well documented” link forensic and criminal psychological literature described between these disorders and offending behaviour. He outlined a suggested treatment plan for the applicant.

36. [41]

    Her Honour set out the offences and relevant penalties, and noted the facts agreed between the Crown and the applicant. She observed that the sentence imposed upon the applicant would commence on the date of his arrest, 15 October 2019, and would be reduced by a discount of 10% to reflect the late pleas.

37. [42]

    Of the applicant’s subjective case the sentencing judge noted that the applicant had been committing criminal offences since he was aged about 10 years and had been frequently incarcerated. She referred to the history of domestic violence towards Ms B, noting that the applicant breached an ADVO intended to protect Ms B on the very day of his release from prison. Favourably to the applicant, her Honour was prepared to view the negative SAR that was before the court in light of the more sympathetic psychological report, and take into account the contents of that report, despite the unsworn history and self-report upon which it was based.

38. [43]

    Her Honour set out the applicant’s history as given by him to Mr Hudd and concluded – again, favourably to the applicant – that his asserted history of family violence had led to him normalising violence. She observed:

39. [44]

    The sentencing judge was prepared to give full weight to the principles given in The Queen v Bugmy (2013) 249 CLR 571; [2013] HCA 37; and Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, concluding that the applicant’s moral culpability was substantially reduced, as was the role for general deterrence in the determination of sentence. Her Honour was not able to conclude that the applicant was remorseful, or that he had shown any insight into his crimes. The applicant did not enjoy good prospects of rehabilitation, and personal deterrence continued to have importance in the exercise of the sentencing discretion.

40. [45]

    Her Honour regarded the offence of intimidation, count 1, as falling “firmly into the mid-range” of gravity for such a crime, particularly since it had occurred in Ms B’s home; whilst count 2 was regarded as falling above the mid-range of seriousness. Although the offences of breaching an ADVO that were before the court were observed to involve the breach of a court order, “no small thing”, generally her Honour regarded the other offences as eclipsed by the offences on indictment, and requiring little or no increase to the sentence that would be imposed.

41. [46]

    Noting the complexity of the sentencing exercise her Honour observed:

42. [47]

    Of the applicant’s drug addiction, the sentencing judge said:

43. [48]

    The applicant was assessed as presenting an ongoing threat to the community and to Ms B in particular, with the domestic violence offences, committed in contravention of an ADVO, requiring stern punishment. Sentence was mitigated to reflect the onerous conditions of custody that had been caused by the COVID-19 pandemic in 2020 and 2021.

44. [49]

    Despite the bleak prospects for the applicant’s rehabilitation, her Honour made a finding of special circumstances, because of a need for a lengthier period of supervision, and reduced the NPP.

The Application to this Court

1. [50]

   By this ground the applicant argues that, in regarding the applicant’s criminal history as “an aggravating factor”, her Honour was in error. The argument expressed in the applicant’s written submissions to this Court were threefold.

   1. (1)

      That in circumstances where there is a link between the applicant’s deprived background and impaired mental health, and the offending, it was not open to the court to regard the criminal history as an aggravating feature pursuant to s 21A(2)(d) of the Crimes (Sentencing Procedure) Act;

   2. (2)

      The criminal history was given disproportionate weight, such that it breached the proportionality principle referred to in Veen v The Queen (No 2) 164 CLR 465 at 477; and

   3. (3)

      Reasons for the court’s conclusions were not given, with the reference to the record as a feature of aggravation made only “in passing”.

2. [51]

   Those points were consolidated in oral submissions before this Court into one overarching complaint that the sentencing judge wrongly had regard to the applicant’s criminal history in making an assessment of the objective gravity of the crimes:

3. [52]

   Had that been the approach of the sentencing judge to the treatment of the applicant’s criminal history, error would be established. An individual’s antecedents are not a feature that is to be considered when assessing the objective gravity of a crime, since it is a subjective feature, apart from the objective circumstances of the crime. However, consideration of what her Honour said in her sentencing remarks, assisted by giving attention to their structure, readily demonstrates that no such error occurred.

4. [53]

   The sentencing judge referred to the applicant’s criminal history – correctly – as a feature of the applicant’s “personal circumstances”. Having turned to consider the applicant’s subjective circumstances, her Honour commenced with the detail of the applicant’s long history of breaches of the criminal law. She observed, in part:

5. [54]

   Her Honour concluded that there had been an escalation over time in a pattern of serious violent offending, and that the applicant posed a risk to others, conclusions that were well founded in the evidence.

6. [55]

   Having considered other aspects of the applicant’s personal circumstances, the sentencing judge next turned to her assessment of the gravity of the offences, making reference in the course of that assessment to specific aggravating features, being the commission of count 1 in the victim’s home; and the use of a weapon with respect to count 2. She made no mention of the applicant’s criminal history in the course of noting features relevant to the seriousness of the offences.

7. [56]

   Having noted the conclusion she had earlier reached that the applicant’s moral culpability was diminished because of the disadvantage he suffered as a child, her Honour remarked upon the complexity of the sentencing exercise. It is this remark, extracted at [46] above, that the applicant points to as demonstrative of error.

8. [57]

   The impugned sentence read, as it must be, in the context of the whole, is however, no more than an observation concerning the difficulty of the task that was before the court, where some features pointed to the need for a very stern sentence, whilst others tended to ameliorate that requirement to some extent. The commencement of the sentence in the past tense – “I have found” – is not without significance. It served to direct the listener (her Honour’s remarks being delivered orally) to what had already been said by the sentencing judge concerning the applicant’s criminal history. Her Honour had previously observed that the record was lengthy, contained many entries for serious offending, showed a clear pattern of escalating seriousness, and that the applicant’s offending had in recent years been directed towards Ms B, notwithstanding the efforts of the criminal justice system to protect her from him. Those matters led her Honour, shifting to the present tense – “…and do find” – to record her conclusion that the applicant’s criminal history was an aggravating feature.

9. [58]

   That conclusion was not one taken into account with respect to the assessment of the gravity of the individual offences. It stood alone as a feature relevant to the determination of the proper sentence to be imposed upon the applicant. That approach was one that was open to her Honour, and in accordance with law. Section 21A of the Crimes (Sentencing Procedure) Act provides, relevantly:

10. [59]

    The statutory provision reflects the common law, exemplified by the principle given in Veen No 2, per Mason CJ, Brennan, Dawson and Toohey JJ, at 477-478:

11. [60]

    As her Honour’s discussion of the applicant’s criminal history made plain, the present offending was not uncharacteristic, but instead demonstrated his continuing disobedience of the law, including by the commission of offences of personal violence. Although, favourably to the applicant, her Honour did not find that the applicant had a dangerous propensity, his repeated offending against Ms B in particular was found to have heightened the need for the principle of specific deterrence to play a significant role in the determination of the sentence to be imposed. The applicant’s criminal history in this instance went beyond disentitling him to a measure of leniency, and it was well open to the sentencing judge to treat it as an aggravating feature that required the imposition of a more severe penalty.

12. [61]

    An offender who persistently disobeys the criminal law, despite past sanctions imposed upon him or her by the courts, and continues to place the safety of others or the integrity of property in jeopardy as a consequence, is liable to have past criminal history treated as an aggravating feature that requires an increase to the sentence that might otherwise be imposed. This is because there is a greater need for a sentence that will deter the offender from committing similar offences in the future, and a greater requirement that the community be protected from that individual. In Veen (No 2) the High Court also referred to a heightened need for retribution with respect to persistent offenders or, to adopt the parallel language of s 3A of the Crimes (Sentencing Procedure) Act, for punishment.

13. [62]

    That an offender may have a deprived background or an impairment to mental health or cognition, as the applicant did, or some other feature warranting a diminution in moral culpability or amelioration of the application of the principle of general deterrence, does not detract from the operation of s 21A(2)(d) of the Crimes (Sentencing Procedure) Act, or of the Veen (No 2) principle extracted above. All of these features may apply in the same sentencing exercise, as they did in this instance, and pull in opposite directions.

14. [63]

    This is clearly recognised in sentencing law. In Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 the High Court said as much. At [40] the court recognised the mitigating effect upon sentence of a deprived background:

15. [64]

    At [44] the court referred to the countervailing weight that can arise from such circumstances, where greater emphasis needs to be given to the protection of the community:

16. [65]

    Thus, a feature which requires mitigation of the sentence to be imposed upon an offender in one way can tend to have an upwards effect on that same sentence in another way. The point has also been made with respect to mental health or cognitive impairment. In Commonwealth Director of Public Prosecutions v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] McClellan CJ at CL observed that, where a person’s mental health [or cognitive impairment] materially contributes to the commission of the offence the penalty to be imposed may be mitigated in a number of ways; but the converse result may also be achieved because the person presents a greater danger to the community, and “considerations of specific deterrence may result in an increased sentence”.

17. [66]

    In the applicant’s case there was no error in the conclusion of the sentencing judge that his criminal history was “an aggravating factor”, since the phrase – derived directly from s 21A(2) of the Crimes (Sentencing Procedure) Act - referred to a feature that was relevant overall to the determination of the appropriate sentence, and not to one which elevated the objective gravity of the offences. Her Honour’s use of the antecedents in that way did not result in a sentence that exceeded the gravity of the crime; indeed, the sentence might be regarded as modest. Clearly, her Honour made a significant allowance for the diminution in moral culpability attributable to the applicant’s deprived background, and the reduced role of general deterrence due to the mental health issues; she also allowed a generous variation in the ratio of sentence, with the NPP representing about 62% of the overall term.

18. [67]

    The applicant’s final complaint, that her Honour gave inadequate reasons for concluding that the applicant’s criminal history was an aggravating factor, must also be rejected. Whilst her Honour’s reasons were not structured for the convenience of appellate lawyers so that there was a single discrete portion of them dealing with the applicant’s antecedents, her reasons for the conclusion were very clearly set out in her discussion of the applicant’s record, summarised at [53] – [54] above.

19. [68]

    Ground 1 has not been made out.

20. [69]

    The applicant takes issue with the statement of the sentencing judge that, in assessing the objective gravity of the offences, she did “not factor in the offender’s reduced moral culpability”. He relies upon the decision of DR v R [2022] NSWCCA 151 at [37] to contend that the approach of the sentencing judge in not considering his moral culpability when making an assessment of the gravity of the crimes was an error. The cited passage is as follows:

21. [70]

    I do not read that passage from Bellew J as providing any support for a claim that the objective gravity of an offence will be reduced where an offender’s moral culpability for the crime is diminished. To construe its meaning in that way is to reach an erroneous conclusion. The weight of authority establishes that matters personal to an offender, including the level of his or her moral culpability, are not required to be taken into account when assessing the objective gravity of the crime.

22. [71]

    The approach taken by the sentencing judge does not constitute error; to the contrary, it is consistent with authority. An example, although not one without some countervailing tension elsewhere in the judgment, is found in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 where the full bench of the High Court said, at [27]:

23. [72]

    Nothing in DR v R contradicts that principle.

24. [73]

    The applicant also relied upon two other decisions, Biddle v R [2017] NSWCCA 128 at [68], and Tepania v R [2018] NSWCCA 247 at [112]. In Biddle Hoeben CJ at CL, with the concurrence of Rothman and Price JJ, said in the cited passage:

25. [74]

    In the passage from Tepania that is relied upon, at [112], Johnson J, with the agreement of the other members of the court, said:

26. [75]

    Authority for the proposition that a causally related mental impairment may reduce the objective seriousness of an offence is found with relative ease, but such decisions should not be taken as establishing a principle that a related impairment must reduce objective gravity. The circumstances in which moral culpability will affect the assessment of objective gravity are few and confined, as discussed in DS v R; DM v R [2022] NSWCCA 156.

27. [76]

    A detailed discussion by this Court, constituted by Beech-Jones CJ at CL, N Adams and Cavanagh JJ, of the issue of the relevance of moral culpability to objective seriousness can be found at [63]-[96] of DS v R; DM v R. The argument brought in that case, which is very similar to that advanced by the applicant here, was rejected. At [66] the court observed:

28. [77]

    It is a proposition also inconsistent with the treatment of moral culpability and objective gravity in many other decisions of the High Court, where the former is treated as a subjective consideration to be balanced against the latter, objective, feature. See for example Bugmy v The Queen; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38.

29. [78]

    Munda has some resonance in the present context since, as with the applicant’s crimes, Munda involved an offence of violence, albeit one of greater seriousness, that was committed in a domestic setting by an offender with a significantly deprived background. There, the High Court treated the moral culpability of the offender as distinct from the objective gravity of the crime and balanced one against the other. That approach does not support the contention that the assessment of moral culpability is a component of the assessment of objective seriousness and must be treated as such by sentencing judges. In DS v R; DM v R this Court concluded, at [90]-[96]:

30. [79]

    In the applicant’s case the sentencing judge considered his moral culpability distinct from the objective gravity of the offences. Her assessment of each was relevant to and informed the overall sentence imposed by determining the weight to be attached to the various sentencing factors. An approach such as this is consistent with that described in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25. That approach was appropriate in my view, and in accordance with the weight of authority. The deprivation of the applicant’s background and his consequential mental health difficulties were features that affected the weight to be given to considerations of moral blameworthiness and general deterrence, but they were not relevant to an assessment of the gravity of offences committed over a prolonged period that involved the assault, intimidation, and degradation of a former de facto spouse.

31. [80]

    Ground 2 is not made out.

32. [81]

    In her remarks the sentencing judge noted that, whilst she accepted that drug addiction at an early age can be a mitigating feature, she did “not find in this case that it does amount to a separate and mitigating factor”. The applicant complains that this was an error, and his drug addiction should have been separately regarded as ameliorating the sentence to be imposed.

33. [82]

    His complaint cannot be accepted. It is clear, even from the short extract from the sentencing judgement quoted above at [81], that the applicant’s drug addiction was taken into account in his favour, as a manifestation of the deprivation of his background rather than as a feature that stood alone. That approach was entirely appropriate.

34. [83]

    Having accepted the hearsay evidence of the applicant’s self-report to Mr Hudd, her Honour also accepted what the applicant had told Mr Hudd about his drug use, despite the different account he gave to the author of the SAR. The applicant said that alcohol and drugs were freely available when he was a child, and he had begun using both at age 7, at a time when his abusive father still lived in the family home. His drug use accelerated over the years and progressed from cannabis to any drug he could obtain. The sentencing judge found that the applicant’s addictions were borne of his early environment, and:

35. [84]

    Her Honour went on to make the finding already referred to, that “full weight” was to be given to these features, such that the applicant’s moral culpability was held to be diminished, as was the applicability of the principle of general deterrence. It is apparent from both the aggregate sentence and the reduced NPP that the weight afforded the applicant’s subjective case was significant.

36. [85]

    The applicant’s drug addiction was properly treated as both the product and symptom of his disadvantaged upbringing and mental health issues, in that way giving proper mitigating weight to that aspect of the subjective case. It was neither necessary nor appropriate to have regard to it in a secondary and “distinct” way. Ordinarily, a drug addiction formed in childhood will be a product of a dysfunctional or abusive upbringing and can be treated as such. It will be a rare case in which a drug addiction, of itself and standing alone, can be treated as a mitigating factor, no matter what age an offender was when the addiction commenced. That is particularly so where drug use was not a feature of the crime, as here; and where, as here, an offender has continued to use drugs despite opportunities provided to him or her by a court to achieve rehabilitation.

37. [86]

    The relevance of a drug addiction as a mitigating feature was considered in Hayek v R [2016] NSWCCA 126, where, with the agreement of Bathurst CJ and Schmidt J, I said, at [75]-[80]:

38. [87]

    Having given ameliorating weight to the applicant’s addiction as an expression of the deprivation and abuse that was a hallmark of his upbringing, nothing further was required.

39. [88]

    Ground 3 is not established.

40. [89]

    The applicant points to the following passage from the remarks on sentence as establishing error:

41. [90]

    It is argued that the reference to “a knife” and the following reference to “a weapon” as an aggravating factor amount to double counting. This argument cannot be accepted. In the first reference to a knife the sentencing judge was doing no more than giving the facts of the offence; her conclusion about the use of a knife was given in the finding that the use of the weapon was a feature of aggravation (as contemplated by s 21A(2)(c) of the Crimes (Sentencing Procedure) Act). A finding of double counting cannot rest on the number of times a particular feature is mentioned; it is the use that is made of the feature that is of significance. The use of a knife was an aggravating factor that increased the gravity of the offence of intimidation. Her Honour’s conclusion to that effect was correct; no double counting was involved.

42. [91]

    Ground 4 is not made out.

43. [92]

    In dealing with the preceding grounds, I have referred to the sentence imposed upon the applicant as modest; it is not one that could be sensibly described as manifestly excessive in my opinion.

44. [93]

    The offence of intimidation carries 5 years imprisonment as a maximum penalty. In this instance it involved the use of a knife to threaten the victim with death in her own and her young son’s home over a period of time which could not be regarded as brief or fleeting. It was motivated by the applicant’s jealousy and anger that Ms B had made decisions about her life that did not include a role for him in it. The offence was one that sought to deny Ms B her right to a life apart from the applicant. Her Honour appropriately assessed the offence as “firmly in the mid-range” of seriousness.

45. [94]

    The applicant’s childhood circumstances, and his consequential addiction and mental health problems were treated as features that mitigated the sentence. His long history of serious offending had the opposite effect, with her Honour finding, again appropriately, that there was a heightened need for the sentence imposed upon the applicant to deter him from committing such crimes in the future and to protect the community. A very modest indicative sentence of 18 months imprisonment was announced, that indicative sentence also comprehending the further offence on the Form 1 document taken into account, that of breaching an ADVO for Ms B’s protection.

46. [95]

    The offence of aggravated kidnapping, count 2, carries a maximum sentence of 20 imprisonment. In this instance the offence involved taking Ms B from her own property in her own car by the infliction of violence upon her, followed by her detention over a period of in excess of 9 hours, in part of which Ms B was held at knifepoint. During the extended detention Ms B was further assaulted, occasioning injury, terrorised, threatened, subjected to degrading and demeaning abuse of a sexual nature, and humiliated by being denied the use of a toilet such that she defecated and urinated whilst detained in her car. Her ordeal came to an end not because the applicant repented of his conduct and released her, but because she was courageous enough to escape, despite her fear that the applicant would catch her and kill her as he had told her he would.

47. [96]

    All of this violent and terrifying conduct towards Ms B occurred because Ms B was making a life for herself, and at a time when the applicant was subject to a court order intended to restrain his behaviour and ensure Ms B’s safety. This contravention of the ADVO was taken into account on sentence, as were four other offences, three of which were serious indictable offences carrying maximum penalties of 14, 10, and 5 years respectively. For this conduct, and taking into account the subjective features referred to above, the sentence indicated was one of 6 years.

48. [97]

    The aggregate sentence, 6 years and 6 months imprisonment, represented an accumulation of only six months between the two offences, even though these were quite separate crimes that had occurred on separate occasions.

49. [98]

    The NPP of 4 years was less than two-thirds of the overall sentence, a significant variation on the usual statutory ratio in the applicant’s favour. A minimum term of 4 years for such a protracted and violent course of conduct, in defiance of a court order, and motivated only by the applicant’s intention to impose his will on Ms B and deny her any right to autonomy, was a generous one.

50. [99]

    This was domestic violence offending of a serious kind. What was said in Munda at [57] is important and should be given affect:

51. [100]

    A sentence lower than that imposed by her Honour would have failed to uphold this principle.

52. [101]

    The sentence imposed upon the applicant might be characterised as lenient; it could not be regarded as one which was unfair or unjust.

53. [102]

    Ground 5 must be dismissed.

Extension of Time

1. [103]

   The application for leave to appeal was filed out of time. A Notice of Intention to Appeal (“NIA”) had been filed within the period allowed, but had been permitted to lapse, it appears because of the unavailability of senior counsel to finalise the grounds and submissions, where fees for junior counsel had not yet been approved by the Legal Aid Commission . The application for an extension of time was filed about a month after the NIA expired.

2. [104]

   Although I have not found the application to be a meritorious one, it was filed only a month after the expiration of the NIA, and in circumstances of delay over which the applicant personally had no control. I would grant an extension of time.

Conclusion

1. [105]

   For these reasons I propose the following orders:

   1. (1)

      Extend the time in which to file the application for leave to appeal to 25 October 2022;

   2. (2)

      Grant leave to appeal;

   3. (3)

      Dismiss the appeal.