Patel v R

1. [1]

   SIMPSON AJA: I have had the advantage of reading in draft the judgment of Harrison J, with which I agree. Like Harrison J, I would have imposed a lengthier sentence than that imposed by Lonergan J, and, accordingly, while leave to appeal against sentence should be granted, the appeal should be dismissed.

2. [2]

   HARRISON J: Manisha Patel was found guilty of manslaughter on 9 March 2018 based upon a finding of excessive self-defence. On 22 June 2018, Ms Patel was sentenced by Lonergan J to imprisonment for 9 years and 4 months with a non-parole period of 7 years (see R v Patel (No 3) [2018] NSWSC 952). After a discount of 15 percent for an earlier offer to plead guilty to manslaughter, her Honour’s starting point was imprisonment for 11 years. Ms Patel seeks leave to appeal against the severity of her sentence based upon a series of discrete grounds of appeal. A complaint upon the basis that the sentence was manifestly excessive was ultimately not pursued in this Court.

3. [3]

   The remaining grounds of appeal are as follows:

Procedural background

1. [4]

   Ms Patel killed Purvi Joshi on 30 July 2013. She was charged with Ms Joshi’s murder on 15 August 2013. Ms Patel was committed for trial on 9 December 2014 and arraigned in the Supreme Court on 6 February 2015. By letter to the Director of Public Prosecutions dated 5 March 2015, Ms Patel offered to plead guilty to manslaughter upon the basis of excessive self-defence. That offer was rejected on 12 March 2015.

2. [5]

   Ms Patel was tried for murder before Wilson J and a jury. The jury returned a verdict of guilty to murder on 1 July 2015. Ms Patel was sentenced on 21 September 2015 to a non-parole period of 18 years imprisonment with a balance of term of 6 years.

3. [6]

   On 2 June 2017, this Court allowed Ms Patel’s appeal against her conviction: see Patel v R [2017] NSWCCA 121. Her conviction was quashed and a new trial was ordered. Ms Patel was tried before Lonergan J and a jury commencing on 7 February 2018 and the jury returned a verdict of guilty of manslaughter on 9 March 2018. The only form of manslaughter left to the jury was excessive self-defence. Ms Patel’s current sentence was imposed almost 5 years after her arrest.

Factual summary

1. [7]

   Her Honour reviewed the facts in the course of her remarks on sentence as follows:

2. [8]

   Ms Patel did not give evidence at her second trial. However, by agreement, the transcript of her evidence from the earlier trial was tendered and read to the jury.

Ground 1

1. [9]

   Ms Patel asserts that her Honour failed to take account of all material facts. She contended that her Honour should have made findings more favourable to her, and should have accepted Ms Patel’s account of what led to the incident in the unit. These more favourable findings were identified as follows:

   1. (1)

      Ms Joshi took Ms Patel’s passport two days before the incident.

   2. (2)

      Ms Joshi refused to return it until Ms Patel provided evidence of the termination of her pregnancy with Mr Dave’s child.

   3. (3)

      Ms Joshi arranged for Ms Patel to attend the unit for that purpose.

   4. (4)

      Ms Patel attended the unit on her way to work.

   5. (5)

      Ms Joshi let Ms Patel into the unit.

   6. (6)

      Ms Patel provided evidence of the termination but did not receive her passport.

   7. (7)

      An argument occurred and Ms Patel took back the paper evidencing her termination and started looking for her passport in the unit.

2. [10]

   Her Honour ultimately found that Ms Joshi armed herself with a knife and “unexpectedly threatened” Ms Patel, causing her to fear for her life. A struggle occurred which led to Ms Patel killing Ms Joshi in an act of excessive self-defence.

3. [11]

   These facts that Ms Patel submitted would have been more favourable to her are to be contrasted with the corresponding findings her Honour actually made, which were as follows:

   1. (1)

      Ms Patel was due to start work at Sydney airport on 30 July 2013 at 4.00am.

   2. (2)

      Ms Patel attended Ms Joshi’s unit at Kyeemagh at around 3.32am.

   3. (3)

      The reason that Ms Patel went there at that time is unknown.

   4. (4)

      The manner in which Ms Patel gained access to the unit is also unknown.

   5. (5)

      An altercation occurred inside the unit.

   6. (6)

      A knife was introduced or deployed by Ms Joshi during the struggle.

   7. (7)

      Ms Joshi “unexpectedly threatened” Ms Patel with a knife.

   8. (8)

      Ms Patel felt that her life was in danger and that she needed to take physical action.

   9. (9)

      During the altercation, there was a struggle over the knife, which led to cuts on Ms Joshi’s hands and fingers.

   10. (10)

       At some point, Ms Patel disarmed Ms Joshi.

   11. (11)

       Following this, Ms Patel still believed that she needed to respond to a perceived threat from Ms Joshi such that she smothered and strangled her causing death.

   12. (12)

       Ms Patel stabbed Ms Joshi twice in the abdomen but this was not the cause of death.

   13. (13)

       Ms Patel thought that Ms Joshi was probably dead but did not check or try to resuscitate her or call for help.

   14. (14)

       Ms Patel left the premises at 4.14am.

   15. (15)

       Her Honour that the reason for the altercation, including how it began, who instigated it and what it involved, as well as the order in which Ms Joshi’s injuries were inflicted, were all unknown.

4. [12]

   Ms Patel contended that an acceptance of her alternative version of the facts would have meant that her overall level of criminality would likely have been assessed as being lower than the assessment made on the facts as found by her Honour.

5. [13]

   The burden of Ms Patel’s contention is that she went to the unit for a legitimate purpose to retrieve her passport. That single but allegedly significant proposition is comprehensively examined in Ms Patel’s detailed written submissions in support of this ground. These submissions outline a comparison of competing inferences in what is described as a more nuanced approach than that taken by her Honour, and one which Ms Patel argues her Honour should have adopted. An ultimate conclusion that Ms Patel attended the unit for an innocent purpose is said to inform the result that her level of criminality must have been lower than that found by her Honour.

6. [14]

   I do not think that that can be correct. The point at which Ms Patel’s conduct relevantly became criminal was when she exceeded what a reasonable person would have done in her position in response to the perceived threat. Self-evidently, a finding of excessive self-defence assumes the jury’s acceptance of the fact that Ms Patel perceived a need to take steps to act in response. It proceeds upon the basis that Ms Patel perceived that Ms Joshi was the assailant and that the relevant threat was created by her. Whatever reasons Ms Patel may have had for going to the unit, including even the hypothetical possibility that she went there with the intention of committing a crime, are either irrelevant, or become merged in the fact of the jury’s obvious acceptance that Ms Joshi was the author of the situation to which it found Ms Patel was entitled to respond. Her criminality is to be measured by her actions performed in the course of committing the offence and the extent to which she exceeded what a reasonable person in her position would have done in the same circumstances. It is not in my view to be assessed by a “nuanced” examination of the reasons why Ms Patel and Ms Joshi came to be at the premises on the morning in question. Whatever intentions or motives Ms Patel might have had for going to Ms Joshi’s unit in the first place must necessarily have been overtaken by the jury’s acceptance of the fact that Ms Patel acted in self-defence. Ms Patel’s approach invites acceptance of the practically unrealistic and unworkable proposition that the seriousness of the offence of manslaughter by reason of excessive self-defence should incorporate a permissible consideration of anterior conduct that formed no actual part of the crime of manslaughter committed in that way. Certainly on the facts of this case, the reasons for Ms Patel being present at Ms Joshi’s home are not relevant to the assessment of the objective gravity of her offending.

7. [15]

   In the present case there is no operative difference between her Honour’s findings and those for which Ms Patel alternatively contends. Her Honour was unable to determine why Ms Patel went to the unit or how she gained access to it. There is no relevant difference between that and Ms Patel’s evidence that she attended by pre-arrangement in order to provide confirmation that she had had a termination. It is clear on either account that Ms Joshi unexpectedly produced a knife. That fact is on either version unrelated to why Ms Patel went there in the first place or how she gained access to the unit, how or why the altercation commenced when it did or who may have started it. It is common to both versions that the argument that appears to have occurred between them erupted with respect to events that had nothing to do with why Ms Patel was there or how she gained entry.

8. [16]

   Finally, and in any event, it was entirely open to her Honour to decline to accept Ms Patel’s account other than to the extent that it was necessary to do so consistently with the jury’s verdict. The version of events most favourable to Ms Patel, for which she contends in the present circumstances, depends entirely upon her Honour’s acceptance of her and the account that she gave. As the Crown has in my view correctly pointed out, none of the individual matters for which Ms Patel contends was unequivocally and objectively capable of supporting an inference about what occurred. The several pieces of evidence were no more than a collection of possible facts from which more than one inference could be drawn. Her Honour was entitled to reject the version provided by Ms Patel upon the basis that she was not prepared to accept any aspect of her account unless it must have been one accepted by the jury. Where there were competing possibilities, her Honour did not reach any conclusion beyond reasonable doubt.

9. [17]

   Her Honour’s approach was entirely in accordance with principle. She was not obliged to make findings in accordance with Ms Patel’s contentions about matters upon which there was no evidence or merely equivocal evidence. Her Honour formed the view that Ms Patel was unreliable and there was no other evidence of why she attended the unit on the day in question.

Ground 2

1. [18]

   Her Honour said this at [102] of her remarks on sentence:

2. [19]

   In the present case, the offence of manslaughter was committed in Ms Joshi’s home when Ms Patel responded in self-defence with excessive force to a perceived threat: see s 21A(2)(eb) Crimes (Sentencing Procedure) Act 1999. Ms Patel argued that an analysis of the purpose of the section is a useful starting point for the determination of whether or not this fact “actually aggravates the offence in question”, in the sense discussed by Bathurst CJ in Jonson v R [2016] NSWCCA 286 at [52]. According to the Chief Justice at [41], its purpose is to recognise “that a home is a place which should be safe and secure for persons who reside, or who are otherwise present, at such a place”. Ms Patel argued that it is therefore unlikely that the provision would have the effect of “actually aggravating” an offence in circumstances where an occupant of the home creates the perceived threat to which the offender thereafter responds by way of self-defence. Ms Patel submitted that the mere fact that the offence happened in Ms Joshi’s home, as opposed to any other location, did not make a meaningful difference to her criminality. In other words, it was not a factor that actually aggravated the offence.

3. [20]

   In my view, the risk to the safety and security of Ms Joshi’s home was created by her own actions. It is a little difficult as a matter of principle to see how a crime assessed by reference to the reasonable person’s response to the perceived threat created by those actions can be reliably or even fairly characterised by the fortuitous circumstance that it took place in Ms Joshi’s home. Perhaps more fundamentally, as I have adverted to in dealing with the previous ground of appeal, it is somewhat difficult to ascribe gradations of seriousness or moral culpability to an unlawful killing that is established by proof not of some criminal intent or guilty mind but by reference to a failure to conform to an objective standard. The fact that Ms Patel’s crime took place in Ms Joshi’s home does not in these circumstances seem to me to be an aggravating factor.

4. [21]

   I would allow this ground of appeal.

Ground 3

1. [22]

   The verdict or the jury was that Ms Patel had either an intention to kill Ms Joshi or an intention to cause her grievous bodily harm. It will be recalled that her Honour was unable to resolve “[t]he reason for the altercation, how it began, who instigated it, and what was involved and in what order certain injuries were inflicted upon Ms Joshi”: at [45]. Notwithstanding that uncertainty, her Honour concluded beyond reasonable doubt that Ms Patel intended to kill Ms Joshi as distinct from acting with some lesser intention. Her Honour did so first upon the basis that Ms Patel’s conduct involved the deliberate and sustained or repeated infliction of “severe” neck compression combined with smothering and secondly a failure to resuscitate her or seek assistance.

2. [23]

   With respect to the first basis, Ms Patel submitted as follows:

3. [24]

   With respect to the second, Ms Patel contended that her failure either to resuscitate Ms Joshi or to call for assistance were consistent with either state of mind.

4. [25]

   Each of these challenges to her Honour’s finding is based upon what Ms Patel contends is the paucity of evidence available to her. The available findings were correspondingly limited to a finding that Ms Joshi “introduced or deployed” a knife and that Ms Patel feared for her life. She contended that these facts, and in light of the matters that her Honour could not find, meant that there was no sufficient basis for a finding adverse to Ms Patel that she formed an intention to kill.

5. [26]

   Her Honour said this at [52] of her remarks on sentence:

6. [27]

   The post-mortem findings were also dealt with by her Honour at [67] - [75] of her remarks. The direct cause of death was the combined effect of compression of the neck and smothering. Petechial haemorrhaging present around the eyes and in the soft tissue of the lower half of the face and scalp were indicative of significant compression of the neck. There were multiple areas of bruising within the neck muscles as well as a fracture of the left side of the hyoid bone located under the jaw.

7. [28]

   Her Honour referred to some of Dr Bailey’s evidence as follows:

8. [29]

   Ms Patel’s version of the struggle was that she placed “one hand over Ms Joshi’s face and neck to stop her from swearing” and that she used her other hand to hold down Ms Joshi’s arm as she was still holding the knife. Ms Patel intermittently removed her hand from Ms Joshi’s face but she continued to swear when she did so. Ms Patel took the knife from Ms Joshi’s hand, inferentially after she ceased to resist, and stabbed her just before or just after she died.

9. [30]

   In my view, her Honour’s conclusion that Ms Patel acted with an intention to kill is unexceptionable. The evidence of Dr Bailey, about the significant aspects of which there was no relevant dispute, was itself sufficient to explain the apparent circumstances of the physical acts causing death from which it was entirely open to her Honour to find that Ms Patel acted with an intention to cause death. That is so even accepting Ms Patel’s contention that her inactivity, in terms of resuscitation or summoning an ambulance, was entirely neutral.

Ground 4

1. [31]

   This ground is necessarily related to Ground 3.

2. [32]

   Her Honour found that this particular instance of manslaughter was a “serious offence of its kind”: at [100]. Ms Patel submitted that a conclusion that the smothering was manifestly excessive was not reasonably open to her Honour (see Mulato v R [2006] NSWCCA 282 at [37] and [46]) either on the findings that were made or particularly having regard to the findings that were not made. Ms Patel submitted that such a conclusion necessarily requires an assessment of the smothering in context, for example, as in response to something, and that it cannot be described as manifestly excessive simply because it caused death.

3. [33]

   However, both the nature and extent of the injuries to Ms Joshi were in evidence. It was open to her Honour to conclude that the level and degree of violence perpetrated upon Ms Joshi by Ms Patel continued past the point required to disable her for the purposes of her self-defence. They are matters going to the seriousness of the offence. Her Honour found that Ms Patel smothered and strangled Ms Joshi to death after she had been disarmed. She found that Ms Patel intended to kill Ms Joshi. As the Crown has described, the killing was an act of close physical violence in which Ms Patel either applied sustained force to Ms Joshi’s neck or repeatedly applied force of some severity, occluding her airways by covering her nose and mouth, past the point where it was necessary to defend herself. Ms Patel also stabbed Ms Joshi when she was either close to death or at the point of death.

4. [34]

   It was in these circumstances clearly open to her Honour to regard the extent to which Ms Patel exceeded what a reasonable person in her position would have done as constituting a serious offence of its kind.

Ground 5

1. [35]

   This ground of appeal asserts that general deterrence could not or should not have had any role to play having regard to the particular circumstances of this case. More widely construed, Ms Patel appears to contend that general deterrence has no work to do in cases of manslaughter by means of excessive self-defence.

2. [36]

   At [108] of her remarks on sentence, her Honour said this:

3. [37]

   In R v McDonald [2019] NSWSC 858 at [20], I recently commented as follows:

4. [38]

   In the present case, her Honour did no more than indicate, consistently with authority, that she proposed to take account of the need for general deterrence in sentencing Ms Patel. Her Honour did not qualify or quantify the extent to which she did so, and Ms Patel’s criticism of her Honour, in the context of this ground of appeal, cannot therefore articulate a complaint in anything other than general terms. However, allowing for the possibly obvious conclusion, that general deterrence sits somewhat awkwardly with notions of excessive self-defence, given the similarities with spontaneous crimes of passion involving retribution or provocation or unexpected loss of control, her Honour was nonetheless perfectly entitled, and indeed bound, to consider general deterrence in this case. The fact that her Honour did not further elaborate upon how general deterrence should operate in this particular instance of manslaughter, beyond what she said at [108], does not mean that she fell into error. General deterrence remained an important consideration, along with retribution, denunciation and punishment. The fact that her Honour dealt compendiously with these four different concepts rather suggests that she gave general deterrence less, rather than more, weight than if it had been addressed separately.

Ground 6

1. [39]

   Her Honour’s remarks on sentence include the following at [77]:

2. [40]

   Ms Patel contends that this statement, taking up what was said by Gleeson CJ in R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep), indicates that her Honour has fallen into error. The full quote from Blacklidge is as follows:

3. [41]

   Her Honour then said this at [80]:

4. [42]

   Ms Patel submitted that it is wrong in principle to say that the “starting point” for a person convicted of manslaughter is that he or she must be sentenced to imprisonment. That submission is undoubtedly correct. Put another way, not every case of manslaughter automatically attracts the imposition of a term of imprisonment.

5. [43]

   Ms Patel complains that her Honour failed properly to have regard to the terms of s 5 of the Crimes (Sentencing Procedure) Act by adopting and misapplying the words of Adamson J referred to earlier. The thrust of that submission is that her Honour unnecessarily constrained or restricted the exercise of her sentencing discretion by failing to consider the full range of available sentencing options.

6. [44]

   In my view, Ms Patel’s contention places undue and inappropriate emphasis upon Adamson J’s words in the context of the case then before her. In the present case, her Honour the sentencing judge was doing no more and no less than articulating what seems to be entirely uncontroversial: that Ms Patel was going to be sentenced to a term of imprisonment. Indeed, in this Court Ms Patel does not suggest otherwise. If Ms Patel’s submission is to have any practical force or effect, it must go as far as to demonstrate that her Honour erroneously fettered her discretion by putting other appropriate and potentially available sentencing considerations out of consideration. It is clear in the particular circumstances of this case that she did not do so.

Ground 7

1. [45]

   Her Honour was referred during the sentencing proceedings to R v Todd [1982] 2 NSWLR 517 at 519-520 and the well-known reference by Street CJ in that case to a person convicted of a crime and awaiting sentence being “left in a state of uncertain suspense”. Her Honour in the present case dealt with submissions about in her remarks on sentence as follows:

2. [46]

   Ms Patel submitted that it was an error for her Honour to have dismissed the relevance of delay. She was 30 years old when she was arrested. Her future was still unknown in December 2017 when she turned 35. Ms Patel contended that more than three years passed between her first indication of a willingness to plead guilty to manslaughter and the date of her sentence. She maintained that this was a substantial period of time to be held on remand in a state of suspense.

3. [47]

   Her Honour took account of Ms Patel’s offer to plead guilty at a relatively early stage and factored a discount of 15 percent into her sentencing calculations. In my opinion, Ms Patel’s offer was a tacit recognition by her of the likely best outcome for her at her trial. In the events that occurred, the wisdom of her offer was effectively vindicated by the jury. In that setting it seems to me to be uncontroversial that her Honour did not consider that some specified or notional further discount off her sentence should be applied. Ms Patel was not in a state of uncertain suspense so much as in one of optimistic anticipation. A person in Ms Patel’s particular circumstances awaiting trial and sentence would in my view have been more obviously confronted with the practical inevitability of being sentenced to a custodial penalty than a state of uncertainty during that time.

4. [48]

   Her Honour fell into no error in the approach that she took to questions of delay.

Resentence

1. [49]

   Ms Patel read an affidavit sworn by her on 18 June 2019 to be taken into account in the event that she was to be re-sentenced.

2. [50]

   Ms Patel is currently designated as a Category 2(6.2) inmate, which entitles her to live and work outside the gaol complex, although still limited to earning gaol wages. It would seem that Ms Patel’s anticipation is that she will be successful in seeking classification as a Category 1 inmate when she has served more of her sentence, with a corresponding ability to earn up to $25 per hour.

3. [51]

   Ms Patel’s major difficulties have been with access to her family, who live in India, and cultural and religious isolation, including difficulties with maintaining her vegetarian diet. These issues were more acute during the five years when she was in maximum security and have now effectively receded.

4. [52]

   Ms Patel is an educated woman with no criminal history and a person of otherwise good character. She has in my view good prospects of rehabilitation and there is no call for any element of specific deterrence. General deterrence remains a matter which I have to take into account, although, as earlier adverted to, the need for it is not substantial having regard to the nature of the particular crime of manslaughter in this case. Nevertheless, punishment, retribution and denunciation remain matters that have to be taken into account.

5. [53]

   The circumstances of the offending undoubtedly have some curious aspects. It is not possible to be certain about the reasons why the events in question occurred. It is clear that Ms Patel is to be sentenced upon the basis that she killed Ms Joshi by an excessive use of force in defending herself from a knife attack. By definition, Ms Patel’s conduct departed from what was a reasonable response to the circumstances as she perceived them.

6. [54]

   Ms Patel herself described what occurred. The evidence that she gave at her first trial was read aloud to the jury at her second trial. A summary of the fatal confrontation between the two women includes Ms Patel’s version of what occurred.

7. [55]

   Ms Patel was in Ms Joshi’s bedroom looking for her passport. She said was about to leave but saw Ms Joshi enter the bedroom holding a knife. Ms Joshi told Ms Patel to give her the papers (confirming Ms Patel’s termination) and leave the apartment. Ms Patel said that she pretended to reach for the papers inside her pocket but instead pulled her car keys out and threw them at Ms Joshi, hitting her on the shoulder. Using both her hands, Ms Patel then grabbed Ms Joshi’s right wrist.

8. [56]

   A struggle then ensued between the two. Ms Patel was pushed by Ms Joshi. Ms Patel twisted Ms Joshi’s hand and removed the knife. Ms Patel gained control of the knife and held it in her left hand. She stepped back. In her examination-in-chief, Ms Patel said that she then stepped back against the wall. In cross-examination, she said that she was pushed against the wall. Either way, Ms Joshi then moved towards Ms Patel and attempted to take the knife from her left hand. Ms Patel passed the knife from her left hand behind her back to her right hand. Ms Joshi then grabbed Ms Patel’s right hand and wrist, attempting to get the knife. She pushed Ms Patel again, putting one of her hands on Ms Patel’s neck and with her other hand tried to get the knife. Ms Joshi then put both her hands around Ms Patel’s neck and started to squeeze. Ms Patel said that she then “poked” Ms Joshi in the stomach. This was an attempt, according to Ms Patel, to scare her. She denied the “poke” was an attempt to stab Ms Joshi. Nevertheless, according to Ms Patel, this “poke” caused the knife to enter Ms Joshi’s stomach. Ms Patel let go of the knife and moved away. Ms Joshi took control of the knife and moved towards Ms Patel to attack her. Ms Patel restrained her by grabbing her wrist.

9. [57]

   The two then fell on the bed, with Ms Patel on top of Ms Joshi. To stop her screaming and abusing her, Ms Patel put her hand over Ms Joshi’s mouth. She kept her hand there for two minutes. The two women, struggling over the knife, then slid onto the floor. Ms Joshi hit the floor first, Ms Patel on top. Ms Patel kept her hand over Ms Joshi’s mouth and then placed it around her neck. Ms Patel commenced squeezing Ms Joshi’s neck, who then began to pull Ms Patel’s hair, slapping her ear and threatening to kill Ms Patel. The knife was still in Ms Joshi’s hand. Ms Joshi “clawed” at Ms Patel’s face. Ms Patel bit one of her fingers. Ms Patel then grabbed the knife from Ms Joshi’s hand and stabbed her once in the stomach. Ms Patel described it as a “big stab”. Ms Joshi stopped struggling. The entire incident lasted approximately 15 minutes according to Ms Patel.

10. [58]

    It is apparent that Ms Patel was able to overpower Ms Joshi and to disarm her. However, consistently with the jury’s verdict, it is also clear that Ms Patel engaged in a deliberate and sustained response that resulted in the infliction of severe neck injuries and the ultimate suffocation of Ms Joshi as she was lying on the bedroom floor. At a point when Ms Joshi must have been unresponsive, Ms Patel stabbed her in the abdomen causing injuries to her liver, duodenum and vena cava. Taking all of these matters into account, it is apparent that the offence is an objectively serious example of offences of this kind.

11. [59]

    Ms Patel has demonstrated no remorse for her actions. I am satisfied that she is not entitled to any benefit in this regard.

12. [60]

    In accordance with my view concerning the lack of significance of the fact that Ms Joshi was killed in her own home, I do not consider that it aggravates the offence. Ms Joshi was in one sense responsible for choosing the location for what occurred. Ms Patel is not to be punished more severely for that.

13. [61]

    Finally, I consider that a discount of 15 percent for Ms Patel’s offer to plead guilty is appropriate.

14. [62]

    However, having regard to all of these matters, in particular my view of the objective seriousness of this offence, the sentence that I would impose is a non-parole period of 8 years and 4 months with a balance of term of 2 years and 9 months. In accordance with this Court’s practice in such circumstances, I would therefore propose the following orders:

    1. (1)

       Grant leave to appeal.

    2. (2)

       Dismiss the appeal.

15. [63]

    N ADAMS J: I too have had the advantage of reading in draft the judgment of Harrison J. I agree with his Honour’s orders for the reasons provided by his Honour. In re-sentencing the applicant, in the exercise of my independent sentencing discretion, I too would have imposed a more severe sentence than that imposed on the applicant by Lonergan J. For the reasons I have provided in RO v R [2019] NSWCCA 183 at [119] – [120], I do not consider it necessary to specify that higher sentence in circumstances where that higher sentence is not to be imposed.