R v Rose

1. [1]

   HARRISON CJ at CL: I have had the opportunity to read in draft the judgment of Campbell J. I agree with his Honour’s reasons and with his conclusion that the appeal should be dismissed.

2. [2]

   As his Honour’s judgment reveals, Mr Rose spent nine months in custody for this offence before he was released on bail subject to onerous home detention conditions. It must therefore be understood that the “leniency” commonly accepted to be inherent in the imposition of an Intensive Correction Order was in this case significantly moderated. Mr Rose had not before then served any period of detention or imprisonment and in the events that occurred found the experience to be particularly onerous. The fact that Mr Rose suffers from an Autism Spectrum Disorder would in my experience have been likely significantly to have contributed to his difficulties while in gaol. Mr Rose’s condition appears as well to have been a contributor to the offending conduct and the amplification of the strength of his otherwise strong subjective circumstances.

3. [3]

   The sentencing judge’s sentence was entirely appropriate and the Crown appeal should be dismissed.

4. [4]

   CAMPBELL J: The Director of Public Prosecutions appeals under s 5D Criminal Appeal Act 1912 (NSW) against a sentence imposed on the respondent on 9 April 2024 by her Honour Judge David in the District Court of New South Wales. On 13 October 2022, in the Penrith Local Court, the respondent pleaded guilty to the following single offence for which he was arraigned in the District Court:

5. [5]

   The offending was contrary to s 112(2) Crimes Act 1900 (NSW) and carried a maximum penalty of 20 years’ imprisonment with a standard non-parole period of 5 years. Under s 7(1) Crimes (Sentencing Procedure) Act 1999 (NSW) (“SPA”) her Honour sentenced the respondent to an intensive correction order (“ICO”) of one year, three months and one day’s duration, with an additional condition to perform 150 hours of community service work as follows (AB 33; Sentencing Judgment (“SJ”) 29):

6. [6]

   The sentencing judge had determined that the appropriate term of imprisonment for the offending and the offender was one of two years. The period of the ICO actually imposed took account of pre-sentence custody on remand. The respondent was arrested immediately at the scene of the crime on 9 December 2022 and remained in custody bail refused for 272 days or eight months and 30 days. He was released on bail on 7 September 2023 on onerous “home detention” conditions which the sentencing judge was satisfied amounted to quasi-custody. A reduction in the term of imprisonment which otherwise would have been imposed was made for the former but not the latter: Mandranis v R [2021] NSWCCA 97 at [61] (per Simpson AJA); Zheng v R [2023] NSWCCA 64 at [298] (per Gleeson JA); R v Eldelbi (2021) 105 NSWLR 133; [2021] NSWCCA 122 at [79]-[81] (per Hidden AJ). The finding of onerous bail amounting to quasi-custody was also relevant to the length of the sentence imposed even if no quantified reduction in respect of it was made: Zheng at [298]; R v Quinlin [2021] NSWCCA 284; 293 A Crim R 253.

Grounds of Appeal

1. [7]

   The Director’s grounds of appeal are expressed in the following terms (Crown Written Submissions (“CWS”) p 8):

2. [8]

   The facts relevant to the respondent’s offending were set out in an agreed statement of facts and incorporated into the sentencing judge’s reasons for sentence (AB 7-12; SJ 3-8). For the purpose of this appeal, I have summarised in what follows the salient features of the offending from the sentencing judge’s reasons.

3. [9]

   The respondent and victim first met at a recreational social club in 2020. After about six months, their initially platonic relationship developed into a casual sexual relationship and continued as friends who regularly slept together. From around January 2021, they began to see each other more frequently and the respondent relocated his work to the area where the victim resided. However, from sometime in 2021 their relationship progressively deteriorated and communication between them ceased when the victim sent a message to the respondent saying, “Please do not contact or approach me or my children, or my work, or my phone” (AB 8; SJ 4). This was on 30 November 2022.

4. [10]

   This termination of the relationship by the victim seems to have been the catalyst for the offending. For just over a week later, on 9 December 2022 at around 1 a.m., the respondent arrived at the victim’s residence knowing she was alone in the house. As the sentencing judge observed (AB 8; SJ 12), there was a degree of planning involved in that the respondent decided to attend the victim’s residence at this time knowing her children were away with her ex-husband in accordance with their custodial arrangements. The respondent gained entry to the backyard of the home by cutting security cables on a side gate. At about 1:12 a.m. he forced his way into the residence by smashing the glass plate backdoor with a crowbar he had brought for the purpose. The respondent was wearing a multi-tool belt holding a knife and a satchel containing a torch, serrated knife, aerosol can of Inox, multi-purpose lubricant and a roll of silver duct tape. He was wearing a “miner’s lamp” on his forehead.

5. [11]

   By the time the victim was aroused from sleep by the noise of the respondent’s forced entry, he was already leaning over her armed with a 9cm knife in his right hand, which was pointed at, and very close to, her face. The respondent was holding her down on the bed with his left hand. The respondent said words to the effect of, “Surprised to see me?... Now you are going to listen to me and let me talk”. He threw the victim’s and his own mobile phones to the ground to prevent the victim calling the police. He continued to hold the victim down on the bed for several minutes but eventually released her after the victim’s pleas that he “get off [her]”.

6. [12]

   The respondent detained the victim over the next two hours and 43 minutes. He prevented the victim from retrieving her phone or leaving the room. He made numerous threats including of self-harm, variously holding the knife to his own throat and wrist. The respondent said words to the following effect (AB 9; SJ 5):

7. [13]

   At 2:52 a.m., the respondent sent a message to his partner, a different person, stating, “Went a different way to your suggestion. You’re in the will. Goodbye”, and again placed the knife to his wrist. The victim sought to dissuade him by saying, “Don’t do this. There is a way out. Please let me go”, to which the respondent replied:

8. [14]

   As it transpired, the victim ultimately dissuaded the respondent from carrying out his threats and the pair discussed their options for the future.

9. [15]

   At 4:00 a.m., the respondent decided to leave. He placed money on the bedside table for the damage caused to the backdoor and apologised to the victim. He then placed the victim’s phone in her vicinity and said, “All right, I’m going to give you your phone back so you can call the police… As soon as you have it, you’re going to call triple zero”. The victim did so at about 4:05 a.m. when she could no longer hear the respondent’s footsteps.

10. [16]

    The respondent remained within the vicinity of the residence and called the police himself at 4:16 a.m., stating “[p]lease hurry up, otherwise I will go inside and kill her, and please come quickly, so I don’t hurt her. Please, please, please”. Police arrived at 4:17 a.m. The respondent was still holding the knife. He was slow to respond to police demands to “drop” it and get down on the ground. After dropping the knife, he was capsicum sprayed, forced to the ground by police and arrested.

11. [17]

    The sentencing judge accepted (AB 14; SJ 10) that the respondent had shown a degree of concern for the victim’s welfare: by offering her water (AB 9; SJ 5); asking her to put on slippers to protect her feet (AB 9; SJ 5); and placing the crowbar and knife on the floor to indicate he was not going to use them (AB 10; SJ 6). However, her Honour also accepted that throughout the ordeal the victim was fearful that the respondent was going to kill her and then himself. The victim’s fear was such that she felt she would lose control of her bodily functions. From the victim impact statement, the sentencing judge accepted the victim suffered painful and enduring emotional and psychological symptoms including panic attacks, assisted, and reduced, by a period of counselling.

The Respondent’s Subjective Case

1. [18]

   The respondent had just turned 36 years of age at the time of offending and was 37 when sentenced. He has an older maternal half-brother and is the middle of three children. The respondent had a difficult childhood where he was exposed to domestic violence, and physical and alcohol abuse. He experienced physical abuse at the hands of his father and often witnessed his mother being assaulted by his father. The respondent described his parents as “functioning alcoholics” (AB 19; SJ 15).

2. [19]

   The respondent’s parents divorced when he was eight years old, following which he frequently moved between his parents’ respective homes in Toronto, NSW and Canberra. He changed high school at least five times and his school attendance was thereby significantly interrupted. Due to these frequent changes, he struggled to settle at school, had difficulty managing his emotions and was repeatedly involved in fights. He did not complete high school or obtain tertiary qualifications. Sometime prior to his arrest, the respondent had worked in the disability sector but he was currently unemployed.

3. [20]

   At the time of offending the respondent was abusing alcohol by consuming as much as two bottles of rum per week to manage his social isolation and emotional distress arising from the break-up of his relationship with the victim and loss of employment. The sentencing judge noted that there was a causal nexus between his early exposure to his parents’ alcohol abuse and his own problematic use of alcohol, which coincided with the decline in his mental health in the lead up to the offending (AB 21; SJ 17). Further, the respondent likely laboured under an Autism Spectrum Disorder (“ASD”), which, in the context of his relationship breakdown, social isolation and unemployment, impaired his judgment around the time of the offending.

Submissions at First Instance

1. [21]

   In written submissions, counsel for the respondent emphasised the principles applicable when sentencing an offender suffering from a ‘mental illness, intellectual handicap or other mental problems’ (DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]). It was contended that the respondent’s moral culpability was reduced because of the contributory effect of the childhood dysfunction and his mental condition on his offending (AB 97). In particular, counsel placed reliance on the experts’ opinions that the respondent (i) had an alcohol use disorder; and (ii) likely had an ASD, which, while not ordinarily considered to be a mental impairment in isolation, nevertheless made it difficult for him to read social cues and understand the intention of others. In this regard, counsel submitted (AB 98 at [18], [20]):

2. [22]

   In making an application for an ICO, counsel referred to this Court’s decision in Zheng v R (which summarised the principles derived from Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; 97 ALJR 107) and argued that the imposition of an ICO was appropriate for the purposes of sentencing and ensuring community safety (AB 102).

3. [23]

   The Crown’s position was that the offending fell above the mid-range of objective seriousness. In writing, the Crown referred to the guideline judgment of R v Ponfield (1999) 48 NSWLR 327; [1999] NSWCCA 435 applicable when assessing objective seriousness, and contended the following principles were of particular relevance (AB 141):

4. [24]

   In these circumstances, and having regard to the aggravating factors under the SPA (in particular ss 21A(2)(b), 21A(2)(eb) and 21A(2)(n)), the Crown contended that no penalty other than full-time imprisonment was appropriate.

The Reasons for Sentence

1. [25]

   The sentencing judge was satisfied that the s 5 SPA threshold had been crossed and accepted that no penalty other than imprisonment was appropriate (AB 26; SJ 22). However, her Honour deemed it appropriate that she deviate from the standard non-parole period and recorded her Honour’s reasons for doing so under s 54B SPA as follows (AB 27; SJ 23):

2. [26]

   Having considered the respondent’s subjective circumstances referred to at [14]-[16] above, her Honour found (AB 24; SJ 20):

3. [27]

   While the sentencing judge acknowledged the general purposes of sentencing under s 3A SPA including “deterring crime” (AB 6; SJ 2), her Honour made this finding (AB 24; SJ 20):

4. [28]

   As to the 272 days of pre-sentence custody (see [6] above) during which he was stabbed with a pen by another inmate, the sentencing judge accepted that the respondent’s time in custody was distressing and that he was motivated not to return to custody (AB 25; SJ 21). Further, her Honour found that the respondent’s bail conditions were “effectively a house arrest… akin to a quasi-custody” (AB 25; SJ 21). While not prepared to give a “credit value” by way of a quantified reduction in sentence, her Honour indicated that the onerous bail conditions were taken into account when determining the appropriate sentence and the manner in which it ought to be served (AB 29; SJ 25).

5. [29]

   Finally, the sentencing judge was satisfied that the respondent had good prospects of rehabilitation as demonstrated by him attending sessions with a forensic psychologist on 13 occasions while on bail, with an additional 18 psychological consultations booked for 2024. Her Honour accepted the opinion of the treating psychologist who reported (AB 25; SJ 21):

Objective Seriousness

1. [30]

   So far as the resolution of the appeal may turn on whether the sentencing judge erred in assessing the objecting seriousness of the offence, it is necessary to reproduce that portion of her Honour’s judgment which was a focus during argument (AB 12-14; SJ 8-10):

2. [31]

   In relation to the aggravating factors under s 21A(2) SPA, her Honour accepted that the offending was aggravated under s 21A(2)(eb) in that it occurred in the victim’s home (AB 15; SJ 11). However, her Honour rejected the Crown’s contention that the offending was aggravated under s 21A(2)(b) (i.e., the offence involved the actual or threatened use of violence) as doing so would amount to “double counting” in a case where that putative aggravating factor was an inherent characteristic of the offence (AB 15; SJ 11). Her Honour said:

3. [32]

   Her Honour well understood that there was no issue between the respondent and the Crown that the s 5 SPA threshold had been crossed. The issue was whether no sentence other than one of full-time imprisonment be served in custody was required, as contended for by the Crown, or whether the conditions permitting her Honour to impose a sentence that may be served by way of intensive correction in the community had been satisfied. Although this is how the central issue had been refined by the proceedings on sentence, her Honour made it quite clear that she fully understood that it was not permissible for her to jump to the conclusion that a sentence to be served by way of an ICO was available: Stanley v DPP at [59]; Zheng v R at [270]-[275]. Her Honour said (AB 30; SJ 26):

4. [33]

   Her Honour went on to determine that the appropriate sentence was a term of imprisonment of two years (AB 31; SJ 27). Only then did her Honour turn to the question of whether the discretionary power to require the sentence to be served in the community was engaged and should be exercised: s 68 SPA. Her Honour’s reasoning is best set out in full as follows (AB 31-33; SJ 27-29):

The Director’s submissions on appeal

1. [34]

   As to Ground 1, the Director did not take issue with the sentencing judge’s overall approach to sentencing, and Mr G Newton SC who appeared for the Director accepted that her Honour appropriately set out and considered the relevant facts and known circumstances (T1.48-2.5). Rather, the Crown’s complaint was that her Honour simply recited the relevant facts without engaging with the assessment of objective seriousness in the process. This was said to be inconsistent with the discharge of the sentencing judge’s obligation to give reasons as explained in FL v R [2020] NSWCCA 114, where Wilson J (at [60]) observed “[w]hat is important is to fully identify the ’facts, matters and circumstances’ which bear on the assessment of the gravity of the crimes”. Mr Newton submitted (T3.32-41):

2. [35]

   Mr Newton accepted that the sentencing judge’s summary in terms of recitation of the facts set out all the salient features of the offending. However, he pointed out that her Honour’s assessment of objective seriousness was “devoid of any reference to any of [the salient features of the offending]” (T4.2), and by way of example referred to the “big gap” between points 7 and 8 (see [30] above) to the effect that the sentencing judge moved from the victim being detained for two hours and 43 minutes to the respondent voluntarily ceasing the offending without making any assessment of the actual circumstances of the crime.

3. [36]

   As is clear, Ground 1 impugns the sentencing judge’s evaluation of the objective seriousness of the offending. It has two parts. Ground 1(a) purports to raise a question of principle. Ground 1(b) asserts a failure on the part of the sentencing judge to take into account a relevant consideration. It is important to understand that Grounds 1(a) and 1(b) are essentially particulars of the substantive ground appearing in the chapeau to Ground 1 that the sentencing judge erred in her assessment of the objective seriousness of the offence. I make this observation now because during oral argument, the learned Crown Prosecutor in answer to questions asked by Harrison CJ at CL (T8.45-9.15) whether the Crown challenged the finding that the offence was in the mid-range, submitted that while the Crown at first instance had submitted that the objective seriousness of the offending was above mid-range, it would “certainly be at least mid-range”. Learned senior counsel maintained that the sentence passed did not adequately reflect a mid-range assessment of objective seriousness but, while emphasising the limitation of general assessments of that type by reference to Cargnello v Director of Public Prosecutions (Cth) (2012) 266 FLR 464; [2012] NSWCCA 162 at 88 and R v Eaton [2023] NSWCCA 125 at [59]-[60], he conceded that the sentencing judge’s evaluation was, in the end, not challenged (T9.10). This concession makes it unnecessary to summarise the argument in relation to Ground 1 in any detail. Suffice it to say, the point of principle in Ground 1(a) was that there was a distinction between the element of aggravation of the s 112(2) offence of being armed with an offensive weapon on the one hand, and the actual threat of violence involved its use on the other: R v Dugan [2006] NSWCCA 34; 160 A Crim R 135 at [32]; Apulu v R [2022] NSWCCA 244 at [144]-[147].

4. [37]

   While acknowledging that the reasons given by the sentencing judge for the sentence actually passed must be read fairly and as a whole, the gravamen of Ground 1(b) is that when setting out and summarising the ten factors which led her Honour to assess the offence as falling in the mid-range of objective seriousness (AB 12-14; SJ8-10), her Honour did not refer expressly to the use of the knife to threaten the victim; the presence of the crowbar within the victim’s view, which was intimidating; and the actual violence involved in pinning the victim to the bed during the initial phase of the respondent’s detention of her.

5. [38]

   Concerning the manifest inadequacy ground, the Crown relied upon three substantive considerations. The first was the reference to the legislative guideposts of the maximum penalty of 20 years and the standard non-parole period of five years both of which should be considered in the context of the s 86(1) serious indictable offence itself carrying a maximum penalty of 14 years. The offending was a very serious example of a domestic violence offence occurring in the victim’s home at a time when the respondent knew she would be alone, and to that extent involving planning, threatened and actual violence, significant damage to the victim’s property and the consideration that the break-in occurred at night.

6. [39]

   The second factor was that an ICO was inconsistent with the finding of mid-range objective seriousness, although an assertion of “tailoring” the sentence was withdrawn (T10.5). The third matter was that notwithstanding the strength of the subjective factors resulting in the reduction in moral culpability, they should not justify a sentence that is not commensurate with the gravity of the offending. In all of these circumstances, it was submitted that the sentence passed was plainly unjust, particularly by reference to the imposition of an ICO as opposed to full-time detention.

7. [40]

   Given the promptitude with which the Crown Appeal was instituted and the need to provide governance and guidance to lower courts, it was submitted the residual discretion should not be exercised favourably to the respondent and he should be re-sentenced.

Respondent’s submissions on the appeal

1. [41]

   Mr T Quilter of counsel, who appeared with Mr C Bechara, also of counsel, for the respondent joined issue with the Crown on whether the error of principle identified in Ground 1(a) had been made. He pointed out in particular that the element of the s 112(2) offence relied upon by the Crown was that the respondent “was armed with an offensive weapon, namely a knife” (AB 5 and140 at [1]). Counsel argued that it was not enough that the respondent be armed with a knife, he must be armed with an offensive weapon. In that regard, in the circumstances it was necessary for the Crown to prove in accordance with the definition of offensive weapon in s 4 Crimes Act 1900 that the knife, in the circumstances, “[was] used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm”. To this extent the actual use of the knife to threaten or intimidate the victim was inherent in or bound up as an element of the charged offence as the sentencing judge held.

2. [42]

   Concerning Ground 1(b), counsel accepted that her Honour did not expressly refer to the actual and threatened use of violence in the ten factors she articulated as supporting her evaluation of objective seriousness. Reading her Honour’s reasons fairly and as a whole however, counsel submitted that in her summary of the salient features of the agreed facts, her Honour referred to the respondent’s actual threatened use of violence. Her Honour also referred to the Victim Impact Statement where the victim had referred to the incident as an “assault”. In particular, her Honour emphasised as an aspect of the instinctive synthesis that community protection required “those who enter another’s home to terrorise them, as [this respondent] did, be punished severely” (AB 29; SJ 25). Her Honour referred to the need to vindicate the dignity of victims of violence by analogy with the statement in Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284 at [29] – [40].

3. [43]

   In relation to Ground 2, counsel pointed to the difficulty of the sentencing task facing the sentencing judge given the many competing factors thrown up by all of the facts, matters and circumstances relevant to sentencing in the case at hand. Counsel relied upon six factors. First, her Honour concluded that no sentence other than imprisonment was appropriate. The starting point of two years and eight months before a 25 percent discount for the plea of guilty at the first available opportunity was one of some severity having regard to the applicant’s legitimate claim for leniency as a first offender, even bearing in mind the legislative guideposts of the maximum penalty and the standard non-parole period. Secondly, while punishment and denunciation were relevant, the reduction in moral culpability referable to the Bugmy considerations and the applicant’s ASD were likewise relevant. Thirdly, no complaint is made by the Crown about the sentencing judge’s failure to identify specific deterrence as an important consideration given the other favourable subjective findings made. Fourthly, her Honour’s conclusion that general deterrence was of less significance in this case, is not called into question. Fifthly, given the complexity of the respondent’s ASD and the steps he had taken towards rehabilitation already, the promotion of his continued rehabilitation was a legitimate consideration, which would also advance community protection. Sixthly, given that her Honour determined a sentence of two years imprisonment was appropriate, no error has been identified in her Honour’s exercise of the discretion to consider whether or not an ICO was the appropriate way of the sentence being served. While there is an aspect of leniency necessarily involved in the imposition of an ICO as opposed to full-time detention, it remains a form of punishment by way of imprisonment.

4. [44]

   Counsel also referred to the stringent bail conditions imposed after the initial period of remand which had not been taken into account by her Honour by way of specific reduction in the term of the sentence. Rather, this significant matter was factored as part of the synthesis.

5. [45]

   Finally, counsel submitted that if either ground were made good, it was an appropriate case to exercise the residual discretion given the applicant’s progress towards rehabilitation and good prospects otherwise.

Principles applicable to the Crown appeal

1. [46]

   The principles applicable to the disposition of Crown appeals are well known and do not require any detailed exposition to resolve the case at hand. It is sufficient for me to remind myself that the primary purpose of a Crown appeal is to lay down principles for the guidance of courts charged with a duty of sentencing offenders: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [1]. As the plurality in Green explained (at [36]):

2. [47]

   An important point of distinction of Crown appeals from offender appeals is that every offender is entitled to be sentenced according to law and therefore every demonstrated House v The King error enlivens a duty to exercise the discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. To emphasise the obvious, no such duty arises in respect of every demonstrated error in a Crown appeal.

3. [48]

   Given the “limiting purpose”, the Crown carries the burden of persuasion at two levels before any question of re-sentencing will arise. The first level is the identification of error in the sentencing judge’s discretion in accordance with the principles established in House v The King. At the second level, the Crown must exclude any reason for the Court to exercise the residual discretion not to interfere with the sentence passed at first instance before a duty to re-exercise the sentencing discretion arises: CMB at [54].

Disposition Ground 1

1. [49]

   Given the concession properly made by the learned Crown prosecutor that an evaluation of the objective seriousness of the offending as falling in the mid-range was open, had this ground been made good on either basis upon which it was advanced, the case for the exercise of the residual discretion not to interfere in respect of the putative error would have been irresistible and no real point would be served by considering the ground further having regard to the limiting purpose relating to Crown appeals.

2. [50]

   Having said that, were it otherwise, I would have been persuaded by the argument of Mr Quilter and Mr Bechara that Ground 1(a) had not been made good. That is to say, I am persuaded that the use of the knife in a threatening and intimidating manner, including in circumstances where the victim was being held down on the bed while the knife was pointed at, and close to, her was, as the sentencing judge held, inherent in the aggravating element of the s 112(2) Crimes Act offence, which was the only offence with which the respondent was charged.

3. [51]

   Likewise, so far as Ground 1(b) is concerned, I would have been of the view that, like Parente, reading the learned sentencing judge’s reasons fairly and as a whole, her Honour was well aware of, and had regard to, the violence inherent in the offending when assessing its objective seriousness by reference to the nature of the respondent’s offending conduct, determined objectively, as set out fully in her Honour’s analysis of the facts.

4. [52]

   I am not satisfied that Ground 1 in either of its aspects has been established.

Disposition – Ground 2 – Manifest inadequacy

1. [53]

   I am not satisfied that the sentence of imprisonment actually passed on the respondent and the ICO by which her Honour decided it should be served either separately or together are, having regard to all of the facts, matters and circumstances relevant to sentencing this offender for this offence, plainly unjust or wholly unreasonable.

2. [54]

   In reaching this conclusion, I have borne in mind the proper approach to questions of manifest inadequacy explained by the High Court of Australia in Bugmy v The Queen. French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ said (at [24]):

3. [55]

   I also bear in mind the statement of Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] as follows:

4. [56]

   I have pointed out (at [32] above) that the learned sentencing judge was very mindful of the proper approach to sentencing required of her Honour before any question of the availability of an ICO arose. In particular, and in substance, her Honour applied and followed the steps mandated in Stanley v DPP at [58]-[66]. I set out [59]-[60] and [65]-[66] below:

5. [57]

   Given the objective seriousness of the offending, her Honour was obviously correct to decide (as was conceded on behalf of the respondent below) that the s 5(1) SPA threshold had been crossed; and that having considered all possibe alternatives, no penalty other than imprisonment was appropriate. There can be, and is no, complaint by the Crown on this score.

6. [58]

   The sentencing judge properly eschewed any consideration of an ICO until she had determined the appropriate term of the sentence of imprisonment for this offence and the offender. As is agreed by the Crown and counsel for the respondent, her Honour’s starting point was two years and eight months. Bearing in mind that the instinctive synthesis is not a process that is capable of producing one single correct result, and, inherently, minds may reasonably differ, I am not of the view that her Honour’s determination of a sentence of two years and eight months, subject to the reduction for the early plea of guilty, was plainly unreasonable.

7. [59]

   Once one accepts that her Honour’s assessment of objective seriousness was open, as by its concession the Crown now does, it is difficult to conclude that the principles of proportionality and consistency in sentencing necessarily demanded a starting point of a longer term of imprisonment even if such determination would have been available without the production of a sentence that would have been manifestly excessive for the offence and the offender. It is, of course, of the nature of the sentencing task that first instance judges are entrusted with a wide discretion and are to be allowed an appropriate degree of flexibility in decision making.

8. [60]

   If one accepts that a term of full-time imprisonment of two years and eight months is not a plainly inadequate starting point, it follows that the reductions which were made to produce her Honour’s final term of imprisonment were called for as a matter of principle. The respondent was entitled, and it was not argued otherwise by the Crown below, to the statutory reduction of 25 percent for his early appropriate plea of guilty, which reduced the term of imprisonment to be imposed to one of two years. This brought into consideration the question of whether an ICO should be imposed as the appropriate means of serving the sentence as a matter calling the exercise of the sentencing judge’s discretion.

9. [61]

   There is no suggestion that her Honour did not properly consider the question of whether an ICO should be imposed, having regard to the mandatory considerations stipulated by the provisions of s 66 SPA which is in the following terms:

10. [62]

    The application of s 66 was explained by the High Court in Stanley v DPP in the following terms at [72]-[77]:

11. [63]

    The passage from her Honour’s judgment that I have set out above (at [33]) demonstrates that her Honour properly directly herself to the requirements of the section, and to my mind gave cogent reasons for deciding, in the exercise of her discretion, that an ICO was the appropriate means of serving the sentence to be imposed. As was said in Stanley v DPP at [59], the process of instinctive synthesis must be engaged in at each stage of the sentencing process.

12. [64]

    Once her Honour had determined that it was appropriate for the sentence to be served by way of an ICO, given that it was necessary that the ICO commence on the day that the sentence was passed in accordance with s 71 SPA, by force of the reasoning in Mandranis at [61], Zheng at [298] and Eldelbi at [79] -[81], it was appropriate to reduce the term which her Honour otherwise would have imposed to make due allowance for time served previously on remand: see ss 24 and 47(3) SPA.

13. [65]

    It is generally recognised, of course, that an ICO reflects a degree of leniency because it does not involve immediate incarceration: R v Pullen [2018] NSWCCA 264 at [53]. But it is a custodial sentence and as the High Court recognised in Stanley v DPP at [63]-[64]:

14. [66]

    It cannot be said that the imposition of an ICO as a means of serving a sentence of imprisonment is manifestly inadequate for a domestic violence offence when one considers the specific provisions of SPA. First, and in general terms s 67 proscribes a series of offences in respect of which an ICO must not be made in respect of a sentence of imprisonment. I will not set them out, but a s 112(2) Crimes Act offence is not one of them, nor do domestic violence offences, per se, fall within the proscribed categories. There can be no doubt that the respondent’s offending is a domestic violence offence as defined by s 3 SPA by reference to the Crimes (Domestic and Personal Violence) Act 2007 (NSW). By s 11 of the latter legislation, a domestic violence offence means a personal offence committed by a person against another person with whom the person who commits the offence has (or has had) a domestic relationship. The s 112(2) offence is a personal violence offence as defined in s 4 of the latter legislation. By s 4(b)(1), a s 112 offence is a personal violence offence if the relevant serious indictable offence is a s 86 offence as in the case at hand. There can be no question that the respondent and the victim were in a domestic relationship by dint of s 5 because the respondent has had an intimate personal relationship with the victim: s 5(1)(c) Crimes (Domestic and Personal Violence) Act.

15. [67]

    While the learned sentencing judge was not referred to these provisions, it is important to bear in mind that s 4A SPA requires a court to impose upon a person found guilty of a domestic violence offence either a sentence of full-time imprisonment or a supervised order. For the purpose of s 4A, a supervised order includes an ICO which is subject to supervision conditions as in the case at hand.

16. [68]

    Section 4B SPA imposes restrictions upon the power of a court to make an ICO in respect of a sentence of imprisonment for a domestic violence offence “unless the sentencing court is satisfied that the victim of the domestic violence offence, and any person with whom the offender was likely to reside, will be adequately protected (whether by conditions of the Intensive Correction Order or for some other reason)”.

17. [69]

    As I have said, these provisions were not drawn to the sentencing judge’s attention and do not form any basis of the Crown appeal in the present case. However, the combination of ss 4A, 4B and 71 SPA indicate as a matter of legislative intention that there is no legal bar to a person convicted of a domestic violence offence being sentenced to a term of imprisonment from being ordered to serve that term of imprisonment by way of an ICO. Naturally, whether an ICO is appropriate is a discretionary question of fact to be decided in all circumstance proved in a given case. To my mind the availability of an ICO for domestic violence offending is relevant to the question of whether its imposition is a marker of manifest inadequacy in given circumstances.

18. [70]

    While the sentence passed upon the respondent was lenient, notwithstanding the objective seriousness of the offending there were grounds for leniency. I am not satisfied that the sentence passed, including service in the community under an ICO is so lenient as to be manifestly inadequate.

Orders

1. [71]

   The order I propose is that the s 5D appeal is dismissed.

2. [72]

   SWEENEY J: I agree with the order proposed by Campbell J and his Honour’s reasons for that order.

3. [73]

   I also agree with the judgment of Harrison CJ at CL.