Monardo v R

1. [1]

   ADAMSON JA: I agree with Chen J.

2. [2]

   CHEN J: Following pleas of guilty entered in the Campbelltown Local Court, Antonio Monardo (‘the applicant’) was committed to the District Court on 20 November 2024 to be sentenced for three offences arising out of his violent confrontation with two sheriff’s officers at his place of work on 19 July 2023. Those officers attended to serve a statement of claim upon the business, of which the applicant and his wife were directors. The offences were:

   1. (1)

      That, between 10:30am and 10:45am on 19 July 2023, the applicant did wound a law enforcement officer while in the execution of his duty, and was reckless as to causing actual bodily harm to that officer, contrary to s 60A(3) of the Crimes Act 1900 (NSW) (sequence 1). The maximum penalty for the offence is imprisonment for 12 years. There is no standard non-parole period.

   2. (2)

      That, between 10:30am and 10:45am on 19 July 2023, the applicant did assault a law enforcement officer (other than a police officer) while in the execution of his duty, and by the assault occasioned actual bodily harm, contrary to s 60A(2) of the Crimes Act (sequence 2). The maximum penalty for the offence is imprisonment for 7 years. There is no standard non-parole period.

   3. (3)

      That, between 10:30am and 10:45am on 19 July 2023, the applicant did threaten injury to a person with intent to prevent the lawful apprehension of himself, contrary to s 33B(1)(b) of the Crimes Act (sequence 5). The maximum penalty for the offence is imprisonment for 12 years. There is no standard non-parole period.

3. [3]

   On 3 March 2025, the applicant was sentenced by her Honour Judge Herbert to an aggregate sentence of 3 years and 1 month imprisonment, with a non-parole period of 2 years, commencing on 2 March 2025. The applicant’s non-parole period expires on 1 March 2027.

4. [4]

   By Notice of Appeal dated 12 August 2025, the applicant seeks leave to appeal against his sentence, raising three grounds – albeit that ground 1 contains three sub-grounds. Those grounds are:

   1. (1)

      that the sentencing judge “erred in her assessment of the objective seriousness of sequence 2, being the offence of assault law officer causing actual bodily harm” (ground 1);

   2. (2)

      that the sentencing judge “erred in her assessment of moral culpability, by finding that the test results relating to aggression were a ‘countervailing consideration’” (ground 2); and

   3. (3)

      that the sentencing judge erred “in law and principle by holding the applicant to a higher than necessary threshold in relation to the mitigating factor of … being ‘unlikely to reoffend’” under s 21A(3)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’) (ground 3).

Background

1. [5]

   The applicant was sentenced pursuant to a Statement of Agreed Facts and what follows is drawn from those agreed facts and the sentencing judgment. Given the sentencing judgment does not have a medium neutral citation and is in transcript form, the references to the page numbers in that judgment are expressed as J1 etc.

2. [6]

   The offending is captured on CCTV footage that was tendered and played at the sentence hearing (Exhibit C) and which I have reviewed. The agreed facts contain a number of photographs taken from this footage.

3. [7]

   On 19 July 2023, Michael Belani and Spyros Staikos, who were both employed as leading senior sheriff officers with the Office of the New South Wales Sheriff, drove in an unmarked departmental vehicle to Prestons, NSW, in order to serve a statement of claim upon the applicant and his wife (J1-2). They were both in full sheriff’s uniforms and carrying a number of appointments including oleoresin capsicum spray (‘OC spray’; J2). They arrived at approximately 10:23am.

4. [8]

   When they arrived, Officer Belani “buzzed at the intercom”, identified himself and spoke with an unidentified male: he requested to speak with the applicant or his wife but “he did not receive any assistance” (J2).

5. [9]

   Officer Belani returned to the vehicle and made contact with his supervisor, where it was agreed that he could serve the statement of claim upon “an employee of the business who was over 16, who had a connection to the [applicant]” or his wife (J2).

6. [10]

   At this time, a male drove into the factory complex and parked in front of the factory entrance where the applicant worked, following which the officers walked over and spoke with him (J2). The sentencing judge found that the officers were, when speaking with this person, standing at “the entry to the factory complex” and at “that time the [applicant] walked into the main area of the factory and then towards the roller door entrance where the two sheriff’s officers were talking to the male” (J2).

7. [11]

   As the applicant approached the roller door entrance, “he took hold of a hammer” and continued walking in the direction of the sheriff’s officers. This is shown in the following photograph contained in the agreed facts, par 9:

8. [12]

   Officer Belani, having entered the factory, “was looking down at the statement of claim documents in his hand” and the applicant, armed with a hammer, approached him: with his left arm stretched out and the hammer in his right hand, the applicant “yelled aggressively” at the officers and, simultaneously, Officer Belani “looked up … and the [applicant] pushed him with force to the chest” (J2-3). Officer Belani “stumbled back before falling to the ground and injured his hand” (J3). His back collided “with something which stopped him from going any further” and his glasses fell off (J3). These events can be seen in the four photographs in the agreed facts, pars 10-11:

9. [13]

   The applicant’s attack on Officer Belani resulted in the applicant being charged with wounding a law enforcement officer, being reckless as to causing actual bodily harm, contrary to s 60A(3) of the Crimes Act (sequence 1).

10. [14]

    In response to those events, Officer Staikos “discharged his OC spray into the [applicant’s] face”, used his radio to “request urgent assistance and activated a duress button” (J3). Officer Staikos continued to use his OC spray, following which the applicant “turned around, took a few steps back to avoid the spray” and “[a]s the use of OC spray continued, the [applicant] turned around and threw the hammer towards Officer Belani” (J3). This can be seen in the three photographs in the agreed facts, par 13:

11. [15]

    The hammer hit Officer Belani in the left temple, causing him to feel sharp pain in that area and to become dazed. Officer Belani stood up, covering his left temple and eye and exited the factory whilst holding his head in his hand.

12. [16]

    The applicant’s further attack on Officer Belani resulted in the applicant being charged with assaulting a law enforcement officer and by the assault occasioned actual bodily harm, contrary to s 60A(2) of the Crimes Act (sequence 2).

13. [17]

    Officer Staikos continued to use his OC spray and yelled at the applicant: “Get on the ground. Get on the ground”. The applicant continued to yell at Officer Staikos and walk towards him whilst pointing at him – but slipped and fell to the floor. After standing up, the applicant continued pointing at Officer Staikos – who was still using the OC spray – and “started to move towards him … the [applicant] was yelling aggressively”. The applicant grabbed a mop that was leaning against the wall of the factory and continued towards Officer Staikos (J3-4).

14. [18]

    Officer Staikos retreated from the factory, whilst using the OC spray, and was yelling for the applicant “to get on the ground” (J4).

15. [19]

    Once outside the factory, the two officers went towards their vehicle, which was near the entrance to the complex.

16. [20]

    The applicant entered a forklift that was parked just outside the factory entrance and yelled: “I’ll show you. You are fucking pricks” (J4). The applicant drove the forklift and followed the officers as they walked towards their vehicle.

17. [21]

    Officer Staikos entered the vehicle, but Officer Belani did not. Officer Belani started to yell “stop” at the applicant as the forklift was approaching. The applicant stopped the forklift approximately 2 metres from the vehicle. As a result, Officer Belani was unable enter it, as is evident from the two photographs in the agreed facts, par 20:

18. [22]

    Officer Belani told the applicant: “We’re going”. Officer Staikos drove the vehicle towards the gate whilst Officer Belani walked alongside it, continuing “to put his hand up towards the [applicant] in a ‘stop’ motion” (J4). As the vehicle was driving to exit the factory, the applicant continued to follow them in the forklift forcing Officer Staikos “to continue driving and hindering Officer Belani from getting into the vehicle” (J4).

19. [23]

    The officers made their way outside the gates of the factory and the vehicle stopped. Officer Belani was bleeding from the top of his forehead. The applicant alighted from the forklift and started walking back to the factory but, a “short time later”, he turned around and started walking towards the gates. As he did, he was pointing at the officers.

20. [24]

    Officer Staikos drew out his extendable baton and yelled at the applicant: “Get on the ground, you’re under arrest”, to which the applicant responded: “Fuck off, you dickheads. If you fucking want more, I’ll give you more”. Officer Staikos then continued to yell at the applicant “to get on the ground and that he was under arrest” but the applicant “continued to refuse and remained non-compliant” (J5).

21. [25]

    The applicant walked past the gates of the factory and began to approach Officer Belani, however, Officer Staikos intervened and stood in front of the applicant. After a short verbal exchange, the applicant “took a few steps back” into the complex, spat on the ground and wiped his face. This interaction can be seen in the photograph in the agreed facts, par 25:

22. [26]

    Officer Staikos said: “Mate, you’re under arrest for assaulting a sheriff’s officer. Get on the ground” (J5). The applicant responded: “Fuck off, idiot”. The applicant started to close the complex gates and as he did so he “put his middle finger up” at Officer Staikos. The applicant then turned around and went back into the factory (J5). This interaction can be seen in the photograph in the agreed facts, par 27:

23. [27]

    The applicant’s conduct, after he approached the gates, resulted in the applicant being charged with threaten injury to a person with intent to prevent the lawful apprehension of himself, contrary to s 33B(1)(b) of the Crimes Act (sequence 5).

24. [28]

    Soon after, the police arrived. They spoke with the applicant and he was arrested.

25. [29]

    The sentencing judge noted that the applicant was to be sentenced for three offences, two of which had a maximum penalty of 12 years imprisonment (sequences 1 and 5) and one which had a maximum penalty of 7 years imprisonment (sequence 2) and that there was no standard non-parole period applicable for any of the offences (J1).

26. [30]

    Her Honour also noted that the applicant entered his guilty plea in the Local Court, such that “the statutory discount applicable is 25%” (J1).

27. [31]

    The sentencing judge then set out the background facts (summarised in [7]-[28], above) and made the following further findings.

28. [32]

    Her Honour found that Officer Belani suffered a number of injuries “as a result of the incident”, as follows (J6):

29. [33]

    Her Honour noted that the CCTV footage was shown and that “this clearly showed the level of speed and aggression of the [applicant] when he was approaching Officer Belani, the pushing of Officer Belani and the throwing of the hammer” (J6). The sentencing judge also noted that the officers were “wearing full uniform at the time of the offences. The [applicant] was of a larger build than the officers, noting that Officer Belani was, at the time, in his early sixties and the [applicant] was more than 20 years his junior” (J7).

30. [34]

    The sentencing judge noted that the applicant submitted that the objective seriousness of the offending was reduced because he suffered from attention deficit hyperactivity disorder (‘ADHD’). Her Honour did not accept that submission, finding that she was “not satisfied that there is a reduction in objective seriousness. There is a reduction of moral culpability, and that is for the reasons given in DS v The Queen; DM v The Queen [2022] NSWCCA 156 at [96]” (J7).

31. [35]

    The applicant, by ground 1(b) of the Notice of Appeal, argues that the sentencing judge erred in making this finding – that is, by failing to find that the ADHD did operate to reduce the objective seriousness of sequence 2.

32. [36]

    In relation to sequence 1, the sentencing judge found that the applicant “armed himself with a hammer and aggressively approached Officer Belani” and that this was “an objectively serious offence. It would be below the mid-range of objective seriousness” (J7-8).

33. [37]

    In relation to sequence 2, given the applicant mounts a substantial challenge to the objective seriousness finding made by the sentencing judge for this count through ground 1 of his Notice of Appeal, it is appropriate to set out her Honour’s reasons in full (J8):

34. [38]

    The applicant, by ground 1(a) of the Notice of Appeal, argues that the sentencing judge erred in making this finding and, in particular, failed to “take into account that the offence was committed impulsively”. Additionally, the applicant, by ground 1(c) of the Notice of Appeal, argues that the sentencing judge erred, when assessing the objective seriousness of sequence 2, in having regard to the “permanent loss of two molars” – it being argued that the evidence could not support a finding, beyond reasonable doubt, that the loss of these teeth resulted from the applicant’s conduct giving rise to that offence.

35. [39]

    In relation to sequence 5, the sentencing judge noted that, despite the two officers having left the premises, the applicant’s “aggression continued when he drove after the officers with the forklift” and that the clear intent of the applicant “was to prevent his lawful detention when he threatened to injure Officer Staikos” (J8). Her Honour found this offence to be “objectively serious … but [was] below the mid-range of objective seriousness” (J8).

36. [40]

    The sentencing judge then addressed subjective matters, noting that the applicant was 38 years of age and was 36 at the time of the offending.

37. [41]

    Her Honour noted that the applicant’s criminal record was “very short”, that the “present offending appear[ed] to be very much out of character” and that he was “a person of otherwise good character” (J8-9).

38. [42]

    The applicant tendered a report from a psychologist, Kristina Richmond, dated 12 February 2025 (‘Richmond report’). The sentencing judge undertook a detailed summary of the content of that report.

39. [43]

    Her Honour noted that, following assessment on 9 November 2023, the applicant was diagnosed with ADHD with mixed anxiety and depression. The sentencing judge also observed that Ms Richmond, based on observation and self-report, noted that the applicant “historically struggled with emotional dysregulation and overall executive functioning” and “exhibits impulsivity however this is highly dependent on his mood” (J10).

40. [44]

    In relation to the offending, the sentencing judge noted that the history provided to Ms Richmond was to the effect that the applicant was “working to understand why he engaged in physical violence and to prevent any future offences. [The applicant] expressed regret [and] remorse for his actions, acknowledging that he could and should have chosen alternate actions to address the situation” (J11-12). Her Honour also noted that the history provided to Ms Richmond involved the applicant describing the assault as “uncharacteristic to his personality and he acknowledged that he had caused the [victim’s] physical and emotional pain and regrets his actions. [Ms Richmond] described him as having taken responsibility for his actions” (J12).

41. [45]

    The sentencing judge noted that the history provided by the applicant to Ms Richmond included an account that the applicant was “shocked and anxious” when he noticed the sheriff’s officers on the factory floor “not taking notice of the uniform and assuming that they had ill intentions” and that the applicant found it “difficult to separate himself from the perceived injustice of having non-employees on the factory floor, in his mind violating occupational health and safety policies” (J12).

42. [46]

    Her Honour noted that Ms Richmond undertook some assessments of the applicant in relation to his “cognitive flexibility”, and his scores indicated “a higher level of cognitive flexibility” (J12). When assessed in relation to depression, anxiety and stress, as at 29 January 2025, his “depression score was moderate, anxiety normal and stress moderate”, but that when assessed in November 2023, his assessment scores were in the “extremely severe bracket for each scale” (J12).

43. [47]

    The sentencing judge also referred to Ms Richmond having administered “the Buss-Perry Aggression Questionnaire which measures an individual’s levels of aggression. [The applicant’s] total aggression score fell in the above average range, indicating a higher than average propensity for aggressive thoughts, feelings and behaviours” (J12-13).

44. [48]

    In terms of treatment, the sentencing judge noted that Ms Richmond recommended that the applicant should engage in psychological treatment with the focus upon “treating and managing his ADHD, his maladaptive patterns of thinking and increasing his psychological flexibility” and noted that the applicant expressed to Ms Richmond “a willingness to continue under her care” and to accept a referral to engage with a psychiatrist (J13-14).

45. [49]

    A Sentencing Assessment Report dated 27 February 2025 was also in evidence (Exhibit B). Her Honour noted that the applicant gave an account that he “struggled to justify his violent actions which he attributed to being an impulsive type of reaction which [was] influenced by his mental health” (J14). The sentencing judge also noted that the applicant reported “that he did not know what he was thinking at the time of his violent action. He describe[d] his only focus was repairing his forklift and, with both victims appearing unexpectedly, had shocked him into fight or flight mode”; that he “reacted physically, admitting that he pushed one of the victims to the floor”; that he claimed “there was no intention of using the hammer as a weapon, stating that it was in his possession from when he was repairing the forklift”; and how he considered that the use of OC spray “contributed to his reaction to let go of the hammer, and claimed that he did not throw the hammer intentionally at the victim” (J14-15). Her Honour also noted the applicant’s account was that “[d]espite taking accountability for his actions, the [applicant] expressed he felt that the victims unnecessarily overused the [OC] spray towards him, resulting in escalation” (J15).

46. [50]

    In relation to the account given to the author of this report, the sentencing judge found that the applicant had “seriously understated his actions” with respect to his reaction to let go of the hammer “and that he did not intentionally throw the hammer at the victim. The action of the [applicant] with respect [to] the hammer is clear on the CCTV. It was clearly thrown with force and thrown in the direction of the sheriff’s officers” (J16). The sentencing judge found that the applicant’s “expression of remorse” was “tempered by his claim that there was an escalation due to the actions of the victims in overusing the [OC] spray” (J16).

47. [51]

    The sentencing judge accepted that the applicant “has expressed some remorse, but this is not fully accepting of his actions in this matter”; that his engagement in counselling “is a positive sign for his rehabilitation”; and that, given his “lack of criminal history and lower criminogenic risk factors”, the applicant had “reasonable prospects of rehabilitation” but, nevertheless, she “[could not] be satisfied that he would not commit further offences” (J16).

48. [52]

    The applicant, by ground 3 of the Notice of Appeal, argues that this last finding is erroneous, given it involves a misstatement of the relevant statutory mitigating factor in s 21A(3)(g) of the CSP Act.

49. [53]

    The sentencing judge accepted that the applicant suffered from ADHD and that this causes “impulsivity and severe emotional dysregulation” but nevertheless did not accept the applicant’s claim “that he believed that the officers were entering with any ill intent or that he failed to see that they were people wearing uniforms” (J16). Her Honour found that the ADHD “[did] reduce the [applicant’s] moral culpability to a degree”, noting that the applicant was “found to have aggression scores in the higher than average range with a propensity for aggressive thoughts, feelings and behaviours. This [was] a countervailing consideration” (J16).

50. [54]

    This last finding is covered by ground 2 of the Notice of Appeal – it being argued that the sentencing judge erroneously used it to moderate the assessment of the applicant’s moral culpability.

51. [55]

    The sentencing judge accepted that the applicant has suffered from anxiety and depression, albeit that his most recent results “fall within the moderate or normal range” but that these conditions “are likely to increase the hardship of a custodial sentence” (J16).

52. [56]

    Her Honour found that to “physically attack law enforcement officers, causing injuries merely for doing their job in seeking to serve court papers is offending conduct requiring a significant element of deterrence in the sentences imposed. Weight must be given to general deterrence, personal deterrence and denunciation” (J17). The sentencing judge further found that these remain “relevant considerations despite the fact that the [applicant] has some reduction in his moral culpability. The courts must support police and all other law enforcement officers in the proper execution of their duties” (J17).

53. [57]

    The sentencing judge considered that “no penalty other than imprisonment is appropriate” and that there would be a “degree of accumulation for these offences to reflect the separate nature of the offences and the overall criminality” (J17).

54. [58]

    In relation to special circumstances, the sentencing judge found them to exist – in order for the applicant to have “the benefit of an extended period of supervision to ensure that he has the opportunity to continue to address his mental health while in the community” (J17).

55. [59]

    The sentencing judge indicated the following sentences, each of which had been reduced by 25% to account for the guilty plea (J17-18):

    1. (1)

       Sequence 1: 2 years and 7 months.

    2. (2)

       Sequence 2: 2 years and 3 months.

    3. (3)

       Sequence 5: 1 year and 10 months.

56. [60]

    The sentencing judge imposed an aggregate sentence of 3 years and 1 month to date from 2 March 2025, with a non-parole period of 2 years. The non-parole period expires on 1 March 2027 and the overall term on 1 April 2028.

Ground 1: error in the objective seriousness finding for sequence 2

1. [61]

   The applicant challenges, through three separate sub-grounds, the finding made by the sentencing judge about the objective seriousness for sequence 2.

2. [62]

   Given that challenge, it is necessary to address the character of the finding and the constraints upon any appeal seeking to challenge it.

3. [63]

   It is well-established that the assessment of the degree of objective seriousness of an offence is “classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts” and that an appellate court “is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion”: Mulato v R [2006] NSWCCA 282 at [37], [46] (‘Mulato’); R v White [2025] NSWCCA 111 at [66]-[69]. The recognition that the characterisation of the objective seriousness of an offence is discretionary and quintessentially for the sentencing judge is such that intervention by this Court is “only on a House v The King basis”: Salameh v R [2024] NSWCCA 239 at [42], citing Mulato at [46].

4. [64]

   The applicant argued that the sentencing judge erred in “failing to take into account that the offence was committed impulsively”. The applicant argued that the impulsive nature of his offending was self-evident from a review of the CCTV footage of the incident and, despite this, the sentencing judge “made no reference to the offence having been committed impulsively” (applicant’s submissions at [58], [61]). Further, and building upon this, the applicant argued that the sentencing judge was “obliged to make a finding as to the impact of the impulsiveness” of the offending when assessing its objective gravity and, additionally, that “the only correct finding was that on balance it was an impulsive act” (applicant’s submissions at [61]).

5. [65]

   The Crown argued to the contrary, emphasising, in line with the decision in Mulato, that the characterisation of the objective seriousness of the offending is classically within the role of the sentencing judge and that the approach of the sentencing judge, in declining to find that the offending was “impulsive”, was reasonably open to her (Crown submissions at [49], [50], [54]).

6. [66]

   Before addressing the competing arguments, there is a threshold definitional issue to be addressed – namely, the meaning the applicant gave to the term “impulsivity” in the context of sequence 2. The argument appeared to be that the act of throwing the hammer was impulsive because it was not its obverse, being planned or premeditated. In this Court, the applicant suggested that it “mean[t] that rather than being an act of intentional purposive closing, for example, on the officers with the hammer and throwing [it] in that way” (T8.20). I do not accept the binary approach advocated. An act can, say, be deliberate and purposeful but not admit to either characterisation suggested here. Putting this matter to one side, there are, in any event, substantive reasons why I do not accept the applicant’s argument – as I explain in what follows.

7. [67]

   In substance, the applicant argued that the evidence more or less compelled a finding of impulsivity and that the sentencing judge was in error in failing to make that finding. The result, in the applicant’s submission, was that the sentencing judge’s finding as to the objective seriousness of sequence 2 was erroneous and, premised upon this Court making a finding favourable to the applicant on this ground, must result in a distinctly lower finding about the objective gravity of the offending.

8. [68]

   Given the applicant’s argument principally turns upon whether the evidence only admits to the characterisation argued, it is convenient to address that issue first before returning to the approach of the sentencing judge. Although not expressly addressed in submissions, the thrust of the applicant’s submission rested on the contention that the failure to make the impulsivity finding in these circumstances was an error within House v The King (1936) 55 CLR 499, 505; [1936] HCA 40 (‘House v The King’) – viz., the error being that the sentencing judge “mist[ook] the facts”, thereby causing the sentencing discretion to miscarry.

9. [69]

   The applicant’s submission principally focused upon the impulsivity being discerned from the CCTV footage: it was argued that the “impulsive nature of the applicant’s offending conduct in sequence 2 [was] apparent on its face, and on a viewing of the CCTV footage of the incident” (applicant’s submissions at [58]).

10. [70]

    During submissions in this Court, the applicant expanded the matters relied upon to establish impulsivity in two respects.

11. [71]

    The applicant first relied upon the finding by the sentencing judge that he suffered from ADHD “and that this causes impulsivity and severe emotional dysregulation” as a step towards demonstrating that the conduct in sequence 2 was “impulsive” (J16). That finding does not, in and of itself, materially advance the applicant’s argument. That is because the finding was a general, not specific, one – critically, not a specific finding linking the existence of that condition to the conduct underpinning sequence 2. The finding said nothing about whether that impulsivity in fact accounted for the applicant’s actions.

12. [72]

    The applicant next relied upon aspects of the report from Ms Richmond to establish his impulsivity for his conduct in sequence 2 (T5.35-7.40). Those parts of the report relied upon were as follows:

    1. (1)

       “[The applicant] exhibits impulsivity, however this is highly dependent on his mood; for example, if he is calm, goal-oriented, and stress levels are low, [the applicant’s] level of impulsivity decreases” (Richmond report, p 5).

    2. (2)

       That, following an initial assessment on 9 November 2023, a mental state examination involved the applicant reporting “[e]vidence of impulsivity and difficulty with making and executing important decisions” (Richmond report, p 7).

    3. (3)

       The applicant reported that “extreme levels of stress contributed to his poor emotional regulation and increased impulsivity around the time of offending”; acknowledged “that around the time of the [offence], he was under an extreme amount of financial pressure”; and also acknowledged that he had a “very strong sense of perceived injustice and that he lack[ed] healthy and effective communication skills, all of which contributed to his poor decision making around the time of the offence” (Richmond report, p 9).

    4. (4)

       The applicant’s “overall level of functioning [was] impacted by the symptoms of ADHD, namely his impulsivity, severe emotional dysregulation, and impaired working memory” (Richmond report, p 11).

13. [73]

    This material, which appears to be a mixture of self-report from the applicant and opinion from Ms Richmond is of limited utility given the somewhat general terms with which it is expressed. As is apparent from the parts of Ms Richmond’s report relied upon, there was no opinion expressed by her that addressed whether the applicant’s offending in relation to sequence 2 was a product of impulsivity nor was there a statement by the applicant to Ms Richmond that it was attributable to his reported impulsivity: as the Crown correctly submitted, Ms Richmond did “not offer an opinion in relation to the causal connection between the applicant’s diagnosis of ADHD and his serious offending …” (Crown submissions at [71]).

14. [74]

    The content of Ms Richmond’s report did not necessarily assist the applicant’s argument. For example, on a version that the applicant gave to Ms Richmond, the applicant did not attribute his conduct to impulsivity but he was said to be “working to understand why he engaged in physical violence” and that the assault was “uncharacteristic to his personality” (Richmond report, pp 9-10).

15. [75]

    The applicant next relied upon the CCTV footage, essentially submitting that a review of it mandates a finding of impulsivity. I disagree. It shows the applicant arming himself with a hammer; aggressively confronting the officers; and then forcefully throwing the hammer, in the way the sentencing judge described, after Officer Staikos sprayed the applicant with OC spray – the deployment of which the applicant accepted was “lawful” and “valid” (T4.12; 6.20). There is nothing in what is shown in the CCTV footage, necessarily suggestive of impulsivity, less still mandating that finding.

16. [76]

    To the extent the applicant argued that the fact he did not immediately use the hammer against the officers was demonstrative of the subsequent “impulsive” use of the hammer, I do not accept the submission.

17. [77]

    The core facts are these (as the sentencing judge found): the applicant walked from one area of the factory (Exhibit C: 10:55:33am), arming himself with the hammer (Exhibit C: 10:55:45am); he walked some distance towards the roller door entrance, where Officer Belani was standing and “looking down at the statement of claim”, to confront him (Exhibit C: 10:55:51am); having done so – and attacked him – he was sprayed with OC spray by Officer Staikos, after which he turned away taking a few steps; then – having lifted his right hand holding the hammer high above his head – threw the hammer towards Officer Belani, who the sentencing judge found was at that time in the process of “attempting to get to his feet” and who did not deploy the OC spray against the applicant (Exhibit C: 10:55:58am).

18. [78]

    That, as the applicant accepted during submissions in this Court, is the context of the applicant’s offending for this count (T8.35). There is nothing in the CCTV footage that supports a finding that the applicant acted impulsively in throwing the hammer in the direction of Officer Belani.

19. [79]

    The sentencing judge was not required to make a finding about the impulsivity argument, particularly given, as I have explained, its unsound premise. Further, the reasons of the sentencing judge make it clear why she resolved the matter in the way that she did: the applicant armed himself with a hammer, yelling aggressively, and confronted the sheriff’s officers, embarking upon what the sentencing judge found was a “wholly unprovoked and unanticipated attack” and, thereafter, “forcefully threw the hammer in [Officer Belani’s] direction” (J7-8).

20. [80]

    It follows that I do not accept that any of the matters raised by the applicant compelled, or obliged, the sentencing judge to find that the offending was impulsive. It follows that I do not accept that the sentencing judge was in error in failing to accept that the offending for sequence 2 was impulsive: her Honour did not “mistake[] the facts”, causing the sentencing discretion to miscarry: House v The King at 505.

21. [81]

    I would not uphold this sub-ground.

22. [82]

    The applicant argued that the sentencing judge erroneously failed to find that his operative, but then undiagnosed, ADHD reduced the objective seriousness of his offending for sequence 2 (applicant’s submissions at [62], [65]). The applicant’s complaint involves two interconnected arguments: first, the existence (and demonstration) of a causal nexus between his disorder and the offending conduct; and, secondly, assuming this to be so, that nexus necessarily had the consequence of moderating the objective gravity of the offending.

23. [83]

    The Crown submitted that there was no evidence – notably from Ms Richmond – demonstrating any causal connection between the applicant’s diagnosis and his serious offending and, as a matter of principle, even if a causal connection were found, that would not result in a reduction in the assessment of the objective seriousness of that offending (Crown submissions at [71]-[72]).

24. [84]

    The Crown’s submissions should be accepted. My reasons for so concluding follow.

25. [85]

    It is convenient to first address the applicant’s argument about the interplay between a mental impairment (or illness) that materially contributes to the commission of an offence and the potential of that fact to moderate an assessment of the objective seriousness of the offending. The applicant argued that his offending should be characterised in this way and that, contrary to the finding of the sentencing judge, the decision in DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 (‘DS’) provides principled support for this approach.

26. [86]

    In DS, this Court confirmed that “a causally related mental impairment may reduce the objective seriousness of an offence”: at [63] (emphasis in original). The Court later repeated this qualification, and expanded upon it, relevantly stating (at [96]):

27. [87]

    Thus, the extent to which a “mental impairment” may inform the objective seriousness of an offence requires, at least, a consideration of the “critical factors” referred to – viz., “the nature of the impairment, the nature and circumstances of the offence, and the degree of connection between the former and the latter”.

28. [88]

    Two matters should presently be noted.

29. [89]

    First, although the applicant advanced the overarching argument that his ADHD should operate to reduce the objective seriousness of sequence 2, it was only by emphasis upon the (argued) “nexus” between that condition and the offending, rather than upon individualised consideration of each of the “critical factors” identified in DS.

30. [90]

    Secondly, as N Adams J explained in DG v R [2025] NSWCCA 137 at [160] (‘DG’), the decision in DS accepted “that there will be cases, albeit rare, where an offender’s mental health or intellectual disability may be relevant to the assessment of objective seriousness”, referring to the two examples provided in that decision as involving situations “where the mental impairment is ‘effectively’ a constituent element of the crime, such as manslaughter involving a substantial impairment within the meaning of s 23A of the Crimes Act”. Her Honour, in this last respect, referred to the decision in Camilleri v R [2023] NSWCCA 106; (2023) 308 A Crim R 52 (‘Camilleri’) as being one of the “rare instances” where “the factor of a mental health condition or intellectual impairment may be relevant to the assessment of both objective seriousness and moral culpability” given the mental impairment was effectively a constituent element of the offence: DG at [142] (emphasis in original), citing Camilleri at [142].

31. [91]

    The sequence 2 offence – assaulting a law enforcement officer occasioning actual bodily harm, contrary to s 60A(2) of the Crimes Act – did not involve the “mental impairment” being a constituent element of the offence, and the applicant did not suggest to the contrary. It is not one of the “rare” cases that would permit a consideration of a mental impairment, and its contribution to the offending, as part of the assessment of its objective seriousness. In my view, the sentencing judge correctly concluded, in accordance with DS (to which she referred: see [34], above), that the existence of his ADHD did not operate to reduce the objective seriousness of his offending. That conclusion was correct and is dispositive of the sub-ground.

32. [92]

    Separately, an assessment of the degree of connection between the applicant’s ADHD and the offending – more particularly, its lack of established connection – is a further reason why I do not accept the applicant’s argument under this sub-ground. It is to this issue that I now turn.

33. [93]

    The applicant submitted that, before the sentencing judge, whether the applicant’s ADHD reduced the objective seriousness of his offending was a “live issue” (applicant’s submissions at [64]). That may be accepted. The applicant also emphasised that, before the sentencing judge, reliance had been placed upon the portion of Ms Richmond’s report to the effect that his “overall level of functioning [was] impacted by the symptoms of ADHD …”, relying upon the evidence earlier set out: see [72](4), above (applicant’s submissions at [64]).

34. [94]

    This evidence was of limited assistance, broadly for the reasons earlier given in relation to sub-ground 1(a): see [71]-[73], above. In short, it did not establish a “causal link” of the kind argued – as I there explained.

35. [95]

    I would not uphold this sub-ground.

36. [96]

    The applicant argued that the sentencing judge erred by finding that Officer Belani suffered the loss of two teeth in consequence of the offending referable to sequence 2. The applicant advanced two arguments to demonstrate this error. The first argument was that “without finding any causal link with an action in this sequence, the loss of the teeth was taken into account by the sentencing judge” (applicant’s submissions at [70]). The second argument was that, in any event, there was “insufficient evidence upon which a finding could be made” to the requisite standard and, for that reason, the loss of teeth “ought to have been left to one side by the sentencing judge” (applicant’s submissions at [70]).

37. [97]

    The Crown argued to the contrary, essentially submitting that the finding was unremarkable given the nature of the offending, and that it was reasonably open for the sentencing judge to find that the only way Officer Belani suffered a loss of those two teeth was during that part of the incident (Crown submissions at [73]-[74]).

38. [98]

    The finding made by the sentencing judge has been earlier set out: see [37], above.

39. [99]

    I do not accept the applicant’s arguments, for the following reasons.

40. [100]

    In relation to the applicant’s argument that the sentencing judge failed to find that the loss of the teeth had “any causal link with an action in this sequence”, contrary to what the applicant argued, her Honour did find a link “with an action” in the sequence. That, I consider, is clear from the sentencing judge’s analysis of, and discussion about, the objective seriousness of the offending for sequence 2.

41. [101]

    For sequence 2, the sentencing judge found that when Officer Belani was attempting to get to his feet, the applicant “forcefully threw the hammer in his direction, striking [Officer Belani] in the head, when he had already been injured” (J8). Further, although unable to be satisfied beyond reasonable doubt that the applicant “was actually aiming the hammer throw at Officer Belani”, her Honour found that the hammer was “thrown in his direction”, and left Officer Belani “with bruising abrasions and the loss of two teeth” (J8).

42. [102]

    Thus, as these reasons demonstrate, the “action” found by the sentencing judge was the applicant forcefully throwing the hammer in the direction of Officer Belani and that hammer “striking [him] in the head”.

43. [103]

    The finding of the sentencing judge attributing the bruising and the loss of teeth to the throwing of the hammer conforms with the findings made by her Honour in relation to sequence 1. As earlier noted, in relation to that offending, the sentencing judge found that the applicant “armed himself with a hammer and aggressively approached” Officer Belani and that the applicant pushed him “with such force in a wholly unprovoked and unanticipated attack” that Officer Belani “fell heavily to the ground, causing the wound to his hand and the injury to the muscle of [his] leg” (J7). Her Honour later found that the wound to Officer Belani’s hand was “8 centimetres in length and required sutures” and that, as at November 2024, he “was still undergoing therapy for his leg” (J8). These findings were not challenged by the applicant. Nor were the earlier findings made by the sentencing judge that describe the applicant pushing Officer Belani “with force to the chest”: see [12], above. Plainly, the findings made by the sentencing judge about the nature of the injuries suffered by Officer Belani in connection with this offending gave context to those suffered by him in connection with sequence 2.

44. [104]

    The applicant’s second argument was that there was insufficient evidence upon which a finding could be made as to the requisite standard relating the loss of the teeth referable to sequence 2. I disagree. There was more than sufficient evidence to make the finding that her Honour did.

45. [105]

    Given this argument was not developed during submissions in this Court, my reasons for why I consider that to be so can be expressed concisely.

46. [106]

    The sentencing judge found, in line with the agreed facts, that Officer Belani sustained a number of injuries “as a result of the incident”: see [32], above. Her Honour specifically found that, in relation to sequence 1, the physical acts involved the applicant forcefully pushing Officer Belani in the chest, causing him to fall to the ground and suffer injuries to his hand and leg. The physical acts of the applicant causing Officer Belani to fall to the ground can clearly be seen on a review of the CCTV footage (Exhibit C). The findings made by the sentencing judge – relating to what the applicant did and the injuries suffered by Officer Belani – were not challenged.

47. [107]

    The applicant accepted, consistent with the nature of the offending that was the subject of sequence 5, that none of the injuries occurred after Officer Belani left the factory entrance.

48. [108]

    Given those findings, it was reasonably open for the sentencing judge to infer and find that the loss of two teeth by Officer Belani was only referable to sequence 2 – that is, referable to the forceful blow of the hammer striking his head – given: the unchallenged findings that the applicant “forcefully” threw that hammer in the direction of Officer Belani and that it struck him “in the head” and what is readily apparent from a review of the CCTV footage, underscoring the force with which the hammer was thrown.

49. [109]

    I would not uphold this sub-ground.

Ground 2: error in the assessment of the applicant’s moral culpability

1. [110]

   The applicant argued that the sentencing judge’s assessment of the applicant’s moral culpability was flawed because it was not open to the sentencing judge “to find that the applicant’s test scores relating to aggression operated as a countervailing consideration” to that assessment (applicant’s submissions at [74]). The nub of the applicant’s complaint was that the testing – which ascertained the applicant had an elevated aggression score – was undertaken “some 18 months after the applicant’s offending conduct” and was a test that was “administered for the purpose of analysis and directed treatment”: the consequence, the applicant argued, was that it was not reasonably open to use the test result obtained at this time, and in this way, to inform an assessment of the applicant’s moral culpability at the time of the offending (applicant’s submissions at [75], [77]).

2. [111]

   The Crown submitted that the applicant fundamentally mischaracterised the nature of the finding made: that is, the challenged finding, the Crown submitted, was not referring to the applicant’s moral culpability, but involved the sentencing judgment addressing a separate sentencing consideration – namely, the extent to which the applicant’s level of aggression impacted upon the sentencing process (Crown submissions at [79], [81]). The Crown further submitted that, contrary to what the applicant sought to argue in this Court, the applicant conceded the broad materiality of that fact before the sentencing judge (Crown submissions at [83]).

3. [112]

   The findings made by the sentencing judge have been earlier set out: see [47], [53], above. Her Honour found that the applicant’s total aggression score, following the administration of the Buss Perry Aggression Questionnaire (‘BPAQ’), fell in the above average range – indicating an above average propensity for aggressive thoughts, feelings and behaviours – and was a “countervailing consideration” (J16).

4. [113]

   As is apparent from the ground of appeal and the applicant’s submissions, his complaint was premised upon the challenged finding relating to, and forming part of, the sentencing judge’s assessment of his moral culpability for the offending. I do not accept the applicant’s characterisation of the sentencing judgment, and the nature of the finding.

5. [114]

   It is true that, broadly, the challenged finding appears in that part of the sentencing judgment beneath the heading “Moral Culpability”. That particular issue is directly addressed in that part of the reasons: her Honour there made the finding that the applicant’s ADHD reduced his “moral culpability to a degree” (J16). But it does not necessarily follow, as the applicant’s argument assumed, that everything beneath that heading all the way to the next heading “Sentence” relates to that finding (or the issue raised by that finding); clearly it does not.

6. [115]

   Rather, as the Crown submitted what the sentencing judge sequentially addressed were ways in which the applicant’s mental health issues were relevant to the sentencing process, in line with the decision in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (‘De La Rosa’). Thus, I consider that the sentencing judge’s reference to the applicant’s “propensity for aggressive thoughts, feelings and behaviours” being a “countervailing consideration” is a reference to the potentiality of the applicant’s condition to present “more of a danger to the community”, in line with the fifth point discussed in De La Rosa at [177]. Further, the next proposition addressed by the sentencing judge in that part of the judgment under the heading “Moral Culpability” dealt with the third point discussed in De La Rosa at [177] – namely, that the existence of the applicant’s “mental health conditions are likely to increase the hardship of a custodial sentence”.

7. [116]

   Once the structure of the sentencing judgment is understood, the applicant’s arguments fall away. The complaint (and argued error) based on the suggested temporal disconnect between the timing of the BPAQ (administered in 2025) and the offending and the applicant’s moral culpability for it (in 2023) simply does not arise once it is recognised that the findings are unrelated.

8. [117]

   In any event, the fact that the BPAQ was conducted on 29 January 2025 is of limited significance for the following reasons.

9. [118]

   The applicant’s behavioural characteristics, embraced by the finding made by the sentencing judge that the applicant suffered from “emotional dysregulation”, included, amongst other features, an acceptance that the applicant: exhibited maladaptive patterns of thinking; held a very strong sense of perceived injustice resulting in him interpreting “behaviour and interactions as a breach of moral code and a personal attack”; and held a distorted sense of trust and “chronic mistrust in practically everyone he interacts with” (J13). These personal characteristics were not suggested to have been recently acquired; rather, they were accepted by Ms Richmond to be long-standing manifestations of the applicant’s underlying condition, personality and upbringing (Richmond report, pp 5, 6 and 11).

10. [119]

    Given the above, and the fact that the applicant emphasised in the Court below and on appeal that overall the nature of the applicant’s issues resulting from his underlying condition – which included his issues with aggression – had improved through his attendance at “17 psychological sessions” as at the date of sentence and was a matter which ought to mitigate the severity of his sentence, it was reasonably open to the sentencing judge to use this material as a basis to find that his aggression scores before the treatment were not less than the above average results recorded in 2025.

11. [120]

    Further that the BPAQ was undertaken “for the purpose of analysis” secured in the course of treatment and to identify those treatment needs is immaterial.

12. [121]

    Thus, it follows, even on the assumption that the finding was to be understood in the way argued by the applicant that none of the arguments raised demonstrate that it was not reasonably open for the sentencing judge to make the finding she did; the sentencing judge did not “mistake[] the facts”: House v The King at 505.

13. [122]

    The applicant had a final argument, submitting that the effect of the “countervailing consideration” was to negate the moral culpability finding of the sentencing judge (T12.20-12.43). My earlier conclusions, including about the correct characterisation of the sentencing judgment, also disposes of this argument. Independently of it, I add the following: I do not accept the submission simply because, subsequent to the “countervailing consideration” finding, the sentencing judge concluded her discussion by remarking that various sentencing considerations remain relevant, “despite the fact that the [applicant] has some reduction in his moral culpability” (J17). Thus, it is clear that the “countervailing consideration” finding did not, as the applicant argued, negate the moral culpability finding. Further, this analysis of the reasons of the sentencing judge serves to confirm the separateness of the moral culpability finding and the “countervailing consideration” finding, as earlier discussed: see [113]ff, above.

14. [123]

    I would not uphold this ground of appeal.

Ground 3: error in assessing whether the applicant was unlikely to re-offend

1. [124]

   The applicant argued that the sentencing judge erred when addressing the terms of s 21A(3)(g) of the CSP Act: the applicant submitted that the sentencing judge erroneously misstated that requirement and held him to a higher, and legally erroneous, standard with the consequence that this mitigating factor was not appropriately taken into account when determining his sentence (applicant’s submissions at [80], [87]). The applicant further submitted that the evidence “compelled a finding that [he] was unlikely to reoffend” (applicant’s submissions at [86]).

2. [125]

   The Crown submitted that, on a fair reading of the reasons, it was readily apparent that the sentencing judge neither applied, nor held the applicant to, an erroneous legal standard (Crown submissions at [90]).

3. [126]

   The finding of the sentencing judge was earlier set out: see [51], above. Given the applicant’s argument, it is appropriate to repeat it: “I cannot be satisfied that he would not commit further offences” (J16).

4. [127]

   Section 21A(3)(g) relevantly provides that the mitigating factors to be taken into account in determining the appropriate sentence for an offence include “the offender is unlikely to re-offend”.

5. [128]

   The applicant’s core submission was that, given the finding misstates the relevant statutory test, the sentencing judge made a patent error that vitiated the exercise of the sentencing discretion and that, as was put during submissions in this Court, the sentencing judge “meant what she said” such that there was no permissible means of “rewriting of it” (T16.29-16.35; 26.42). The applicant submitted that not only was the manner in which the sentencing judge expressed her finding, in and of itself, decisive of this ground, but that there was no scope for any beneficial reading of the reasons and that it was, more or less, impermissible to call in aid broader considerations, such as context, to understand the finding in any other way.

6. [129]

   Given the nature of the applicant’s arguments, it is useful to identify the following principles that guide and inform the approach to resolving this ground.

7. [130]

   First, it is “well established that reasons given [ex tempore] should not be overly scrutinised with an eye attuned to error, nor ‘picked over’”: Tukuafu v R [2024] NSWCCA 84 at [133], citing MF v R [2024] NSWCCA 42 at [48]. These remarks are an implicit acknowledgement of the considerable sentencing workload placed upon sentencing judges and to the desirability, where possible, of sentencing judgments being delivered ex tempore and the benefits to the criminal justice system when they are.

8. [131]

   Secondly, the focus is upon the substance of the reasons, reading them fairly and as a whole. That principle is one of general application. It is reflected in the acceptance that it is unnecessary for a sentencing judge to meticulously cite all statutory or common law principles “under which a sentence is determined and imposed for that sentence to be unattended by error”, if it is otherwise apparent or discernible from the reasons that they have not been overlooked: SR v R [2024] NSWCCA 43 at [2], [45]. The principle is also reflected in the corollary to this – namely, the fact that a sentencing judge correctly states the legal test to be applied does not, of course, mean that it was: “… a formulaic recitation of a statutory test is neither sufficient nor decisive in determining whether the correct test has in fact been applied”: IAG Limited t/as NRMA Insurance v Chahoud [2019] NSWSC 767; (2019) 89 MVR 87 at [56]. Although made in a different context, these remarks, in my respectful view, remain apposite.

9. [132]

   Prior to the hearing, this Court drew to the attention of the parties the decision in ACE Demolition & Excavation Pty Ltd v Environment Protection Authority [2024] NSWCCA 4; (2024) 260 LGERA 358 (‘ACE Demolition’) – where a broadly similar error to the one covered by this ground was argued to arise in a sentencing judgment.

10. [133]

    The appellant was charged with, and pleaded guilty to, four offences under the Protection of the Environment Operations Act 1997 (NSW): three of the charges were offences under s 144AA(2) of that Act – which concerned the knowing supply of information about waste in the course of dealing with waste which was false or misleading in a material respect – and one offence under s 144AA(1) of that Act – which concerned the supplying of information about waste in the course of dealing with waste which was false or misleading in a material respect.

11. [134]

    The sentencing judge, in the course of addressing the likelihood of reoffending, made a finding that, in respect of s 144AA(1), he “[could not] be satisfied … to be certain that future inadvertent provision of false and misleading information concerning waste … would not arise”: ACE Demolition at [44] (emphasis added). On appeal, the complaint was that the sentencing judge adopted “an unduly onerous approach in respect of the offending under s 144AA(1)”, with the consequence that there was a material error and the consideration of the matter within s 21A(3)(g) of the CSP Act was not taken into account: ACE Demolition at [54](2), [55].

12. [135]

    In upholding the appellant’s complaint, Leeming JA (Garling and Cavanagh JJ agreeing) said the following (at [57]):

13. [136]

    The immediate significance of this decision is that it is illustrative of the principles earlier referred to: in particular, that, contrary to what the applicant argued, a misstated statutory test does not axiomatically vitiate a sentencing decision. Whether it does requires an assessment of the circumstances including the nature and quality of the error, the structure and content of the reasons and whether the judgment was delivered ex tempore.

14. [137]

    In my view, having regard to the structure of the sentencing judge’s reasons and the fact that they were delivered ex tempore, the sentencing judge’s expression was no more than a verbal infelicity rather than demonstrative of a misapplication of the requirements of s 21A(3)(g): the finding was simply that the sentencing judge was unpersuaded that the applicant “is unlikely to reoffend”. In particular, I consider this to be evident from the manner in which the sentencing judge worked through the various mitigating factors referred to in s 21A(3) when determining the appropriate sentence: the sentencing judge found that the applicant’s “criminal record is very short, comprising one matter” which her Honour found to be “not significant” (s 21A(3)(e)); that he was “a person of otherwise good character” (s 21A(3)(f)); that “he has expressed some remorse” (s 21A(3)(i)); and that he had “reasonable prospects of rehabilitation” (s 21A(3)(h)). Each of these mitigatory considerations were identified and addressed by the sentencing judge in an entirely orthodox way and in conformity with s 21A(3) – both in substance and in form. The applicant did not suggest to the contrary.

15. [138]

    There is, thus, anchored firmly in the reasons of the sentencing judgment, a clear indication that the sentencing judge was alive to, and applied, the terms of s 21A(3) of the CSP Act. That there is such an indication readily supports the inference that, in relation to s 21A(3)(g), the manner of the sentencing judge’s expression was no more than an infelicitous slip, given in an otherwise clear and structured ex tempore judgment.

16. [139]

    It is necessary to deal with the applicant’s further argument to the effect that, given the evidence, the sentencing judge was “compelled” to find that the applicant was unlikely to reoffend and was in error in failing to do so. I do not accept this submission. It was reasonably open to the sentencing judge to be unpersuaded about this matter given the qualified finding about remorse (the applicant “is not fully accepting of his actions in this matter”: J16) and her Honour’s acceptance of the applicant’s “total aggression score” derived from the BPAQ was such that the applicant was found to “have aggression scores in the higher than average range with a propensity for aggressive thoughts, feelings and behaviours”. The sentencing judge did not mistake the facts nor commit any other error in dealing with the matter in the way she did.

17. [140]

    I would not uphold this ground of appeal.

Orders

1. [141]

   For the above reasons, I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [142]

   R A HULME AJ: I agree with Chen J.