Thorp v R

1. [1]

   BELL CJ: I agree with Ierace J.

2. [2]

   BELLEW J: I agree with Ierace J.

3. [3]

   IERACE J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal a sentence of imprisonment imposed by Judge Weinstein SC (“the sentencing judge”) in the District Court on 17 December 2020, following pleas of guilty, for the following two offences:

   1. (1)

      Aggravated detain for advantage contrary to s 86(2)(b) of the Crimes Act 1900 (NSW) (“the detain offence”), which has a maximum penalty of 20 years;

   2. (2)

      Contravening an apprehended domestic violence order (“ADVO”) contrary to s 14(1) Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“CDPV Act”) (“the contravene ADVO offence”), which has a maximum penalty of 2 years.

4. [4]

   An offence of intimidation, contrary to s 13(1) of the CDPV Act, was taken into account in relation to the sentence imposed for the detain offence, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”) (“the Form 1 (intimidation) offence”). It has a maximum penalty of 5 years imprisonment and/or a fine of $5,500. The circumstance of aggravation for the detain offence was that, at the time of the commission of the offence, actual bodily harm was occasioned to the victim.

5. [5]

   The applicant received an effective overall sentence of imprisonment of 3 years and 5 months, commencing on 17 December 2020 and expiring on 16 May 2024, with a non-parole period of 1 year and 11 months. He will be eligible for release to parole on 16 November 2022. The sentence was comprised of a fixed term sentence of 2 months for the contravene ADVO offence and a wholly consecutive sentence of 3 years and 3 months with a non-parole period of 1 year and 9 months for the detain offence.

6. [6]

   The applicant sought leave to appeal his sentence on two grounds, which are as follows:

The offences

1. [7]

   The circumstances of the offences were set out in a statement of agreed facts that was tendered by the Crown and which the sentencing judge incorporated into his remarks on sentence, which was to the following effect.

2. [8]

   At the time of the offences, the applicant and the victim had been in an on again/off again domestic relationship for approximately three years. There was an ADVO in place, which prohibited the applicant from doing the following:

3. [9]

   On the evening of 8 April 2019, the victim and the applicant were travelling alone in the applicant’s vehicle. The victim was driving and the applicant was seated in the front passenger seat. The victim noticed that the applicant was agitated and asked him what was wrong. He replied, “Give me your phone” which the victim did. The applicant inspected her phone and became angry that she had been sending text messages to a girlfriend. An electric stock prod was in the car and known to be in the car by both the applicant and the victim.

4. [10]

   The applicant said to the victim, “Don’t stop driving until I tell you” and “Don’t fucking stop until I tell you”. The applicant was screaming at the victim, “You’re gone” and “I should break both your legs so you can’t run anywhere”. This conduct constituted the Form 1 (intimidation) offence.

5. [11]

   The victim drove the car to Unanderra and pulled into a car park located near the rear of a restaurant. The applicant was going through the victim’s phone and continued yelling at her, “Don’t fucking move anywhere”. The victim said, “I'm just standing up for a minute” and exited the vehicle. The applicant yelled at the victim to “Get the fuck back in the car”.

6. [12]

   The victim started running away from the car, screaming for help. She ran through the car park towards the restaurant. The applicant exited the vehicle and chased her. He caught up to the victim and tackled her from behind onto the bitumen. The applicant pulled the victim off the ground by grabbing her torso and underarms from behind and dragged the victim back to his vehicle. The victim sustained injuries to her knees, arms and hands. This was captured on CCTV.

7. [13]

   An employee of the restaurant heard the victim screaming and walked out the back of the restaurant. He observed the victim on the ground in the middle of the car park with the applicant standing over her. He observed the applicant picking the victim up and dragging her towards the vehicle. He ran back inside and called out to some of his colleagues to come and help, and then he and three other men ran towards the victim and the applicant. By this time, the applicant and the victim were in an adjoining car park. The applicant still had hold of the victim and was dragging her into his car.

8. [14]

   All four men yelled at the applicant words to the effect of “What the fuck are you doing?” The applicant let go of the victim, causing her to fall onto the bitumen, and entered the driver’s seat of his vehicle. The victim was assisted up by one of the staff members and they hid between parked vehicles for safety. The applicant reversed and attempted to drive his car out of the car park. He initially went the wrong way and drove quickly to exit the car park. Two of the men believed that they were going to be struck by the applicant’s vehicle. Police and ambulance were called to the scene. The victim was conveyed to Wollongong Hospital where an X-ray of her right hand was taken and her injuries were treated. An electric stock prod was located in the car park near where the applicant’s vehicle had been parked.

9. [15]

   Police attended a number of addresses where the applicant was known to frequent in an attempt to arrest him, without success. On 16 September 2019, the applicant and his father attended Young Police Station regarding the matter and the applicant was arrested.

The sentence hearing

1. [16]

   The applicant was aged 28 at the time of the offences and 30 when he was sentenced, on 17 December 2020. He had been on bail since his arrest.

2. [17]

   The Crown tendered a sentence bundle, without objection, which included the CCTV video, a bundle of photographs of the victim’s injuries, a victim impact statement and a sentencing assessment report.

3. [18]

   The video is 34 seconds in length. The view is looking down onto the car park and there is no sound. Seven seconds after it commences, the victim runs quickly into view from the right side and towards the camera, the applicant running immediately behind her. He appears to grab her with both hands on her shoulders and push her face-down onto the ground, with him dropping on top of her. From there, he immediately jumps onto his feet, pulling her up as he does so by his hands under her armpits. He drags her backwards in the direction from where they had emerged, and then turns her around and quickly frog-marches her out of sight. At that moment, four adult males emerge into view from the left and jog after the applicant and the victim, disappearing from sight.

4. [19]

   The bundle of photographs depicts abrasions to the victim’s arms, hands, knees, left foot and left shoulder, and bruises to various parts of her shoulders, legs and hands.

5. [20]

   A statement composed by the victim was read out in court. She referred to the escalation of the applicant’s bad behaviour against her over the period of their relationship from name-calling to, ultimately, the violence of the offences. She explained the fear that she endured during the assault as the applicant was “starting to rage”, to the point that she believed that she was going to die. She described how she stopped the car, got out and “ran screaming for help”. She wrote:

6. [21]

   The victim wrote that, consequent to the trauma, “I also lost my job, my financial security, my car, friends, and the relationships with my children”. She is “seeking counselling” and is taking medication for anxiety, post-traumatic stress disorder and depression. She continued to feel that “I deserved what happened and that it was my fault. I am tired of feeling ashamed for actions I [did not] take”.

7. [22]

   The applicant had prior convictions for domestic violence related offences. In 2009, when he was aged 18, he was convicted of a count of assault occasioning actual bodily harm in a domestic violence context, for which he received a good behaviour bond for a period of 12 months. In 2012 when aged 21, and again in 2017 when he was aged 26, the applicant was convicted of stalking or intimidation with the intention of instilling fear in a domestic violence context. For the 2012 offence, he received a good behaviour bond with supervision for 12 months. For the 2017 offence, he received a sentence of imprisonment for a period of 13 months with a non-parole period of 4 months. His release was subject to supervision and him participating in domestic violence programs and anger management programs, as directed.

8. [23]

   The most serious of the applicant’s criminal convictions that is not domestic violence related is a conviction in 2013, when he was aged 22, for recklessly inflicting grievous bodily harm in company. He received a sentence of imprisonment of 2 years with a non-parole period of 1 year, to be released subject to supervision. Other entries as an adult include a conviction for resist or hinder police in 2010, for which he received a bond for 12 months, and possessing prohibited drug convictions in 2012 (a fine of $100) and 2013 (conviction with no other penalty). He has convictions in Queensland in 2018, the most serious being possession of a shortened firearm (a shotgun), for which he received a sentence of imprisonment of “time already served”, which was 100 days, without any further punishment. He has multiple entries as a juvenile, the most serious being an entry for assault occasioning actual bodily harm when he was aged 16, for which he received 12 months probation.

9. [24]

   The sentencing assessment report, dated 8 December 2020, was prepared by a Community Corrections Officer (“the Officer”). The Officer interviewed the applicant and spoke to his father, who was also his employer. At the time of the report, the applicant was residing with his father in Young. The Officer briefly canvassed the applicant’s background, which was to the effect that he was raised in a household “marred by domestic violence”. His parents separated when he was about 12 years old. He had limited education. At the time of the report, he was employed full-time by his father in an earth-moving business.

10. [25]

    The applicant informed the Officer that, at the time of the offences, his life was “in turmoil, due to his drug use, homelessness, un-medicated mental health and poor relationship issues”. He admitted to having “an anger issue” and a history of cannabis and amphetamine use which commenced about the time his parents separated. His father told the Officer there had been “a major positive change” in the applicant since his medication for depression and anxiety was re-assessed and increased, which was about 12 months before the date of the report. The applicant had recently engaged with a psychologist to deal with his anger issues, although ongoing contact had been impaired by his employment commitments elsewhere in the State.

11. [26]

    The Officer was encouraged by the applicant’s past response to supervision concerning his drug, mental health and domestic violence/aggression issues, which included his completion of the domestic abuse program. She noted that, during the applicant’s contact with Community Corrections in 2018, he “presented with some insight into the negative [e]ffects of his actions”.

12. [27]

    The applicant expressed remorse to the Officer for the offences, acknowledging that:

13. [28]

    The applicant tendered reports by a forensic psychologist and treating psychiatrist and brief references from his father and an employment contractor.

14. [29]

    Sarah Van De Velde, forensic psychologist, assessed the applicant over two interviews in person in October 2020. Ms Van De Velde related in some detail the applicant’s history of childhood exposure to domestic violence, including physical violence between his parents, which culminated in a difficult separation, when he was aged 12. His mother had a severe gambling problem at the time and his father was the subject of an ADVO.

15. [30]

    The applicant was expelled from school in Year 7 at the age of 13, for behavioural issues. He said he felt “angry” with everyone. He spent short periods in Juvenile Justice detention.

16. [31]

    When he was aged 16, the applicant commenced a relationship that lasted nine years and produced two children (“his first relationship”). His relationship with the victim lasted four years (“his second relationship”). He admitted verbal fighting in the first relationship to the point of yelling and screaming, and sending his partner “abusive messages when angry”. He admitted to shouting in the second relationship. He denied he was physically abusive in either relationship. He said the second relationship became “toxic” and that he and the victim would consume methylamphetamine together. Ms Van De Velde observed, in respect of the applicant’s attitude to both relationships, that the applicant:

17. [32]

    The applicant reported symptoms from the age of 13 that Ms Van De Velde regarded as being consistent with a history of depression, which intensified in about 2012, when his first relationship became problematic for him. He related a history of diagnoses for anxiety and depression, for which he had received drug therapy.

18. [33]

    In relation to the applicant’s anger issues, Ms Van De Velde noted that his anger issues commenced at about the same time as his parents’ separation:

19. [34]

    Ms Van De Velde noted that the applicant had participated in anger management treatment programs and engaged with a counsellor or psychologist in 2017 or 2018 but ceased those sessions “because he returned to his partner”. She considered that the applicant “demonstrated insight into his mental health and anger”.

20. [35]

    The applicant’s use of drugs and alcohol also commenced about the time of his parents’ separation. When he was aged about 12, he started associating with substance-using peers and from then until he was aged 16, he drank alcohol daily. He first used cannabis when aged 13, using it daily until he was about 25 years old. He told Ms Van De Velde that he ceased using cannabis in late 2019 but had relapsed three months before she interviewed him. He first used amphetamines when aged 14 and between 2010 and 2014, that is, between the ages of approximately 20 and 24 years, he took methylamphetamine daily. He ceased using methylamphetamine in 2014 but relapsed in 2017. By 2018, he was using it every few days. He said that he last used methylamphetamine more than 12 months before the assessment. He reported engaging in drug and alcohol counselling in 2017 and 2018, claiming that his illicit substance use reduced in that period.

21. [36]

    The applicant’s account of the offences, as related by Ms Van De Velde, was as follows:

22. [37]

    Ms Van De Velde administered a range of tests. The Personality Assessment Inventory (“PAI”) is a self-report test that is intended to detect clinical syndromes and personality pathology, and identify treatment considerations. The applicant’s clinical profile revealed the possible presence of a depressive disorder, significant anxiety and tension, and “moderately elevated” characteristics associated with schizophrenia and suicidal ideation. Ms Van De Velde noted: “During assessment, he reported some paranoia and suspicion in the context of feeling anxious and concerns about his former partner’s behaviour”. As to the applicant’s personality pathology, Ms Van De Velde reported that his scores on a scale that assessed features of borderline personality disorder and antisocial personality disorder were “moderately elevated”. The issue of anger management was central to treatment considerations:

23. [38]

    Ms Van De Velde assessed the applicant’s level of risk for future offending generally, utilising a psychological tool known as the Level of Service Inventory – Revised (“LSI-R”). The result was a finding that he presented a “low/moderate risk of reoffending”. She also administered the Spousal Assault Risk Assessment Version 3 (“SARA-V3”), which is designed to assess an individual’s risk for future intimate partner violence (“IPV”). Ms Van De Velde cautioned that the results were qualified by her not having been provided with a victim impact statement or an opportunity to interview the victim. On that qualified basis, the test indicated that the applicant was at a “moderate” risk of engaging in IPV. Another test administered was the SAPROF, which is a structured assessment guideline that assesses the presence of 17 factors found to reduce a person’s risk for violent or sexual reoffending (protective factors). The applicant was in the “moderate” range of protective factors against future violent offences.

24. [39]

    Ms Van De Velde referred to a body of research to the effect that exposure to parental conflict and abuse, carer separation and other adverse childhood experiences, can significantly alter developmental trajectories and lead to a host of maladaptive cognitive, emotional, physical, and social outcomes, including negatively influencing social and romantic relationships. She found a nexus between the applicant’s childhood experiences and his perpetration of domestic violence as an adult. She concluded:

25. [40]

    Ms Van De Velde made the following diagnoses: major depressive disorder with the descriptors “unspecified, recurrent episode”, generalised anxiety disorder, stimulant use disorder with the descriptors “Amphetamine-Type Substance, sustained remission, moderate”, and cannabis use disorder with the descriptors “early remission, moderate”.

26. [41]

    The applicant tendered a brief report by his treating psychiatrist, Dr Karthik Modem, who diagnosed the applicant as having a major depressive disorder. Dr Modem also noted that the applicant “meets criteria for an Antisocial Personality Disorder History provided”, which I assume to mean that this diagnosis was made on the basis of the applicant’s provided history.

27. [42]

    It is apparent from the history taken from the applicant and noted in the report that the victim of the assault occasioning actual bodily harm, for which he was convicted when he was aged 18 in 2012, was the partner in his first relationship. The history also afforded further information in relation to the Form 1 (intimidation) offence in 2017, which concerned the applicant “sending threatening text messages to [his] ex-partner”.

28. [43]

    The applicant tendered a letter from his father, who confirmed that he was employing the applicant in his business. The applicant’s father stated that he had received “excellent feedback” about the applicant’s work performance and that he had observed the applicant’s:

29. [44]

    A brief reference from a contractor of the applicant’s father’s business was tendered, that confirmed the applicant is a good worker.

The parties’ submissions at the sentence hearing

1. [45]

   The Crown submissions before the sentencing judge underscored the particular relevance of general and personal deterrence, denunciation and the protection of the victim in sentencing individuals who have committed domestic violence offences. Reliance was placed on Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54]-[55] and R v Dunn (2004) 144 A Crim R 180; [2004] NSWCCA 41 per Adams J at [47].

2. [46]

   The objective seriousness of the offences was submitted to be considerable, having regard to the maximum penalty for the principal offence (20 years imprisonment), and the relevant factors. The Crown submitted that there was a particular need for specific deterrence in light of his limited expressions of remorse and poor prospects of rehabilitation.

3. [47]

   The Crown submitted that the events that occurred within the car before the victim escaped were reflected in the Form 1 (intimidation) offence, and therefore its criminality would more than nominally increase the penalty for the detain offence. The Crown submitted that the objective seriousness was “around the mid-range”.

4. [48]

   The central thrust of the submissions made on behalf of the applicant was that an aggregate sentence of imprisonment of 3 years or less was within range, which would permit consideration of the imposition of an intensive correction order (“an ICO”): s 68(2) of the CSP Act. An ICO would adequately reflect an application of the relevant sentencing principles and meet the need for protection of the victim, since she and the applicant no longer resided in the same part of the state. An ICO would allow the applicant to pursue treatment of his mental health issues and anger management in the community, through continuing with counselling with his psychologist. It was submitted that special circumstances existed to justify an adjustment of the ratio of the non-parole period to the full term of the prison sentence, pursuant to s 44 of the CSP Act (“special circumstances”), to enable a longer period of supervision in order to enhance the applicant’s prospects of rehabilitation.

5. [49]

   The applicant submitted that the objective seriousness of the offence was “well below mid-range to low range for offences of this type”.

6. [50]

   During the course of submissions, the sentencing judge referred to the contravene ADVO offence as “a significant matter … the criminality cannot be subsumed and probably calls for a separate non-concurrent sentence of some sort”.

The remarks on sentence

1. [51]

   The sentencing judge delivered the sentence following the hearing. The sentencing judge acknowledged that, pursuant to s 86(2)(b) of the Crimes Act, the circumstance of aggravation of the detain offence was the infliction of actual bodily harm. The form of contravention that was relied upon by the Crown for the contravene ADVO offence was “by way of violence”. His Honour recounted the agreed facts and noted, in relation to the applicant’s criminal record, that he had “some significant matters pertinent to this particular offending … as an adult”. Turning to the victim impact statement, his Honour said:

2. [52]

   The sentencing judge reviewed the three reports that had been tendered by the parties, placing particular weight on Ms Van De Velde’s report, stating:

3. [53]

   The sentencing judge canvassed Ms Van De Velde’s report in detail, noting the applicant’s dysfunctional childhood, the trauma of his parents’ separation, his poor education, his long-standing mental health issues, his drug and alcohol history, his minimisation of intimate partner violence and his difficulties coping with life outside prison. His Honour considered the results of the tests that Ms Van De Velde administered, and their implications for the safety of the victim and the applicant’s rehabilitation. The sentencing judge also reviewed the contents of the much shorter psychiatric report and the two references.

4. [54]

   The sentencing judge turned to an assessment of the objective seriousness of the detain offence, acknowledging a submission by the Crown to the effect that the period, circumstances, and purpose of the detention, as well as the person being detained, are relevant to that exercise: R v Newell [2004] NSWCCA 183 at [32]. His Honour continued:

5. [55]

   The sentencing judge separately considered the need for general deterrence and denunciation in sentencing the applicant for the contravene ADVO offence:

6. [56]

   The sentencing judge noted the Crown’s submission that the objective seriousness fell “somewhere about the mid-range for offending of this sort” and that the applicant put a different emphasis on the relevant factors, in particular the length of the detention, and concluded that “to the extent that it is necessary to make any such finding, I would find that it sits somewhere below the mid-range for offending of this type”.

7. [57]

   As to aggravating factors, the sentencing judge found that s 21A(2)(d) of the CSP Act was applicable, namely, that the applicant was being sentenced for a serious personal violence offence and had a record of previous convictions for such offences, and that the latter factor was limited to intended or reasonably foreseeable injuries: R v Wickham [2004] NSWCCA 193 at [25].

8. [58]

   The sentencing judge determined that the Form 1 (intimidation) offence was “not entirely subsumed by the primary offence”. The sentencing judge acknowledged the applicant’s entitlement to a discount of 25 per cent for his early guilty plea and the evidence of his remorse. In addition, his Honour acknowledged the yardstick of the maximum penalty and the need for general and specific deterrence and denunciation in determining the appropriate sentence.

9. [59]

   The sentencing judge gave “full weight” to the applicant’s disadvantage as detailed in Ms Van De Velde’s report, in particular, the link between his “childhood exposure to violence” and later offending, in the sense required by the majority in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43], [44] and in related authorities, by expressly reducing, although not eliminating, the applicant’s moral culpability on sentence. The sentencing judge found that “there [were] indicia of disadvantage in this case which the Courts have long recognised”. His Honour continued:

10. [60]

    As to the applicant’s prospects of rehabilitation, his Honour noted prosocial factors; that the applicant was employed, he had largely abstained from illicit substances in the previous year, and he intended to continue with psychological counselling. However, taking into account “the matters that are set out in Ms Van de Velde’s report which show less self-awareness than one would otherwise hope”, his Honour found that the applicant’s “prospects are guarded”.

11. [61]

    The sentencing judge noted that the Form 1 (intimidation) offence would “increas[e] slightly” the applicant’s sentence that otherwise would have been imposed, to “recognise … the community’s entitlement to retribution” for that offence.

12. [62]

    The sentencing judge determined that only a sentence of imprisonment was appropriate. Contrary to submissions of defence counsel, his Honour found that an ICO was not an appropriate punishment because such an order would not “adequately” address “community safety” or provide adequate protection for the victim. The sentencing judge found that special circumstances existed, on the basis of the finding of disadvantage and the need for the applicant to engage with mental health and other services when he is eventually released to parole.

13. [63]

    His Honour acknowledged relevant principles for the formulation of a sentence pursuant to s 3A of the CSP Act and the common law, and handed down the sentence which, as noted, was an effective overall sentence of imprisonment of 3 years and 5 months with a non-parole period of 1 year and 11 months, comprised of a fixed term sentence of 2 months for the contravene ADVO offence and a wholly consecutive sentence of 3 years and 3 months with a non-parole period of 1 year and 9 months for the detain offence. The ratio of the non-parole period to the balance of term of the sentence of imprisonment imposed for the detain offence was 54 per cent, and for the overall sentence the ratio was 56 per cent.

Ground 1

1. [64]

   The applicant’s first ground of appeal is that the sentence constituted double punishment of the applicant, by the sentencing judge finding that a matter relevant to the objective seriousness of the detain offence was that it constituted a contravention of the ADVO but his Honour then imposed an entirely consecutive sentence for the contravene ADVO offence.

2. [65]

   In support of this ground, the applicant relied upon Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at 623, per McHugh, Hayne and Callinan JJ:

3. [66]

   The applicant submitted that since the sentencing judge had structured the sentence with discrete consecutive sentences, rather than sentences that were partly concurrent and partly consecutive, there was no scope to infer that the sentence for the contravene ADVO offence reflected only the aspects of that offence that were not already taken into account with the sentence for the detain offence.

4. [67]

   The respondent submitted that the passage relied upon by the applicant from Pearce stated the principle against double punishment but was not prescriptive as to how a sentence should be structured so as to avoid the principle being contravened. The respondent noted that in Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1, Howie J (Adams and Price JJ agreeing) observed, at [27]:

5. [68]

   The respondent submitted that it is necessary to examine the sentencing judge’s remarks in order to determine whether the sentence has breached the principle. In this case, the sentencing judge’s remarks disclose that his Honour delineated between the relevance of the contravention of the ADVO as a matter to be taken into account in the detain offence and the discrete criminality that attached to the contravene ADVO offence, which entailed the breaching of a court order that was intended to protect a vulnerable person.

6. [69]

   As noted in the passage from the remarks on sentence that is extracted at [54] above, the sentencing judge took into account the contravention of the ADVO for the purpose of assessing the gravity of the seriousness of the detain offence, by the observation “that an apprehended domestic violence order was in place protecting the victim from [the applicant] and the detain offence breached that order”.

7. [70]

   Later in his remarks, in the passage extracted at [55] above, his Honour considered the significance of a contravention of an ADVO as a discrete offence. It is apparent from the terms of that passage that his Honour focussed on the gravity of the offence as a breach of a court order that is intended to protect a person who is at risk of harm from another. An unpunished breach of such an order diminishes the authority of the court to protect vulnerable persons, thus underscoring the need for general deterrence for such offences. In the latter part of that passage, his Honour acknowledged how he intended to address that criminality, namely, that it would be “separately punished”, but “having regard to the requirements of the totality principle”.

8. [71]

   There is no reason to think that the manner in which the sentence was structured did not reflect that intention. In my view, the sentencing judge clearly explained that the contravention of the ADVO contributed to the seriousness of the detain offence but also warranted discrete punishment for contravening the court order by an act of violence. The relatively short sentence of 2 months fixed term imprisonment is consistent with it reflecting primarily the criminality of the breach of a court order.

9. [72]

   I would grant leave to appeal the sentence on ground 1, but dismiss the appeal.

Ground 2

1. [73]

   The applicant submitted that the sentence was demonstrated to be manifestly excessive in light of the fleeting nature of the detention, which on the basis of the CCTV video would have been about 30 seconds, the minor nature of the injuries and the objective seriousness being fixed at “somewhere below the mid-range for offending of this type” which, the applicant submitted, necessarily involved a conclusion that the sentencing judge had found the offence to be in the low range, or at least, that it was not inconsistent with it being in the low range.

2. [74]

   The applicant referred to a graph provided through the Judicial Information Research System (“JIRS”) that demonstrated that of 24 sentences of imprisonment that were imposed following a guilty plea for the same offence, 58.1 per cent received a higher sentence than that imposed on the applicant. The applicant submitted that this is consistent with the proposition that the sentence imposed was more consistent with one that was mid-range in terms of objective seriousness.

3. [75]

   The applicant referred to two comparative sentences that involved aggravated detain for advantage offences: Salvaggio v R [2007] NSWCCA 136 and Jibran v R [2020] NSWCCA 86.

4. [76]

   In Salvaggio, the applicant sought leave to appeal a sentence of imprisonment for 4 years, with a non-parole period of 3 years 6 months, that was imposed following his conviction at trial for a count of aggravated detain for advantage and two counts of assault occasioning actual bodily harm. The applicant and victim had been in a relationship. The applicant detained the victim for about an hour, during which time he kicked her in the mouth, stomach and abdomen, injured her arm by hitting it with a piece of wood which was aimed at her face, and pressed a burning cigarette into one of her shoulders. The detention only ended when neighbours became concerned by the victim’s screams and called the police.

5. [77]

   The applicant had significant drug and alcohol issues and prior convictions for matters of violence, being common assault, escape from lawful custody, stalking and contravening an ADVO, for which he received an aggregate sentence of 6 months periodic detention the year before.

6. [78]

   Although the Court (Smart AJ, Campbell JA and James J agreeing) was troubled by the structure of the sentence, it declined to intervene, noting:

7. [79]

   In Jibran, the applicant challenged a sentence of an aggregate term of imprisonment for 4 years, with a non-parole period of 3 years, for three offences, being an offence of aggravated detain for advantage (causing actual bodily harm) contrary to s 86(2)(b) of the Crimes Act, driving whilst disqualified and damaging property, that was imposed following pleas of guilty. The indicative sentences were:

8. [80]

   Briefly stated, the circumstances of the offence were that while the applicant and victim were out driving, the victim decided to go home but the applicant would not permit her to do so. The victim, while outside the car, rang Triple Zero for assistance. The applicant placed his hand over her mouth and forced her into the back seat of the vehicle, locked it and got into the driver’s seat. He swung his arm at the victim, but it did not connect. He drove off, throwing her phone out of the window. The victim jumped out of the car while it was moving, sustaining a cut and grazes, and took refuge in the backyard of a house. The applicant attempted to access the backyard, but the occupants rang Triple Zero and assisted the victim.

9. [81]

   The applicant succeeded on a ground of appeal that the sentencing judge erred in finding that the driving whilst disqualified offence occurred on the occasion of the other two offences, which were committed at the same time. In the circumstances of this case, this constituted appealable error: Jibran at [165]-[175]. The applicant was re-sentenced to an aggregate sentence of imprisonment for 3 years and 10 months and a non-parole period of 2 years and 10 months. The indicative sentence for the aggravated detain for advantage offence was unchanged, being 3 years imprisonment.

10. [82]

    The respondent submitted that the sentencing judge acknowledged that the detention was short, and only because of the intervention of others. The victim was nevertheless subjected to fear and violence. The respondent submitted that the duration of the detention is only one of the factors to be taken into account in assessing the gravity of a detention offence. The circumstances and purpose of the detention, as well as the person being detained, are also relevant to that exercise: Newell at [32].

11. [83]

    The respondent submitted that when the broader picture of factors relevant to the sentencing exercise are weighed, the sentence is demonstrably not manifestly excessive. The detain offence and the Form 1 (intimidation) offence were committed in breach of an ADVO and the applicant had a significant criminal record that included multiple prior domestic violence offences. The comparative cases can be distinguished from the present case.

12. [84]

    The relevant principles that apply to a determination of whether a sentence is manifestly excessive were stated in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 by R A Hulme J, at [443]:

13. [85]

    The sentencing judge’s determination that the objective seriousness fell “somewhere below the mid-range for offending of this type”, in my view, is not equivalent to a finding that it was in the low range. There is no reason as to why it should not be accepted with its inherent imprecision, that is, it lay somewhere below mid-range for offences of that type.

14. [86]

    As noted at [56] above, his Honour expressed a reservation about the utility of making a finding in terms of a range at all. The offence did not have a standard non-parole period, so a finding of objective seriousness was not required by s 54A(2) of the CSP Act: see Tepania v R [2018] NSWCCA 247 at [132]; R v Sivell [2009] NSWCCA 286 at [2]. For all offences, the assessment of the objective gravity of an offence is a necessary part of the sentencing process: see for example Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [71]. Although it was unnecessary for the sentencing judge to make a finding of objective seriousness, there was no error in his Honour making such a finding: PW v R [2019] NSWCCA 298 at [19]; although the exercise when not required has sometimes been regarded as undesirable: R v Harris (2015) 70 MVR 412; [2015] NSWCCA 81 at [57]. Whether required or not, the scale of objective seriousness is not uniform and may be imprecise to the point of lacking utility: Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [82]; see also R v Dakkak [2020] NSWSC 1806 per Hamill J at [18].

15. [87]

    Although the period of detention is a relevant consideration in determining the gravity of the offence, in R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130, Johnson J (McClellan CJ at CL and Hammerschlag J agreeing), at [106], noted that when the period of detention does not end at the choosing of the captor it is of limited assistance in the assessment of objective gravity. In this case, in the short period before the restaurant employees freed the victim, the applicant had threatened to “break [her] legs” to stop her from leaving, he had demonstrated by the use of force occasioning injury that he would not countenance her leaving, and this was done in the context of an ADVO to not approach, assault, threaten, harass or intimidate her. Accordingly, the brevity of the detention, although relevant, is of limited assistance to the applicant.

16. [88]

    In my view, the two comparative sentences which relate to aggravated detain for advantage do not assist the applicant. In Salvaggio, the length of detention before the outside intervention and the nature of the injuries inflicted on the victim rendered the circumstances of Salvaggio significantly more serious than in this case. Although the total sentence imposed was only 7 months longer than in this case, the sentence in Salvaggio, as noted at [78] above, was found by this Court to be at the bottom of the range.

17. [89]

    In Jibran, there were some striking similarities with the instant case. The victim was being held in a car and was rescued by the intervention of others while attempting to escape. The period of detention was not dissimilar, and the injuries suffered by the victim were comparable. Although the indicative sentence of 3 years imprisonment is three months less than the indicative sentence imposed for that offence in this case, that difference is not so great as to suggest that the indicative sentence in this case reflected a misapplication of principle.

18. [90]

    A reading of the sentencing judge’s remarks on sentence discloses a strong concern, based on Ms Van De Velde’s report, that although the applicant had commenced the process of addressing his drug misuse and poor anger management, his deep-seated relationship and anger issues were intransigent, so that the protection of society and the safety of the victim were of particular importance. A significant total sentence and a ratio of the overall non-parole period to the balance of term of 56 per cent was the means of achieving that result.

19. [91]

    Accordingly, I am not persuaded that the sentence imposed was manifestly excessive. I would grant leave to appeal the sentence on ground 2, but dismiss the appeal.

20. [92]

    I propose the following orders: