Elali v R

1. [1]

   PRICE AJA: The applicant, Abdul Elali, seeks leave to appeal against his conviction for the offence of entering a building on 30 December 2021 with intent to commit an indictable offence contrary to s 114(1)(d) of the Crimes Act 1900 (NSW), to which he pleaded guilty. For ease of identification, the sequence number of the offence is H85707372/4.

2. [2]

   The applicant also seeks leave to appeal against his sentence imposed by Turnbull SC DCJ (“the judge”) on 21 November 2023 in the District Court at Sydney, pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW).

3. [3]

   On 12 May 2023, the applicant pleaded guilty in the Local Court at Penrith to the offences set out in the table below (at [5]) and was committed for sentence to the District Court.

4. [4]

   On 21 November 2023, the judge sentenced the applicant to an aggregate sentence of 8 years imprisonment, with a non-parole period (“NPP”) of 4 years, after allowing a discount of 25% for his pleas of guilty and finding special circumstances. The aggregate head sentence was backdated to commence on 20 March 2022 and expires on 19 March 2030, with the NPP to expire on 19 March 2026.

5. [5]

   The table below which was helpfully provided by the Crown sets out the offences; the maximum penalties for the offences; the offences included on a Form 1 and the judge’s indicative sentences:

6. [6]

   The notice of appeal identifies the following three grounds of appeal:

7. [7]

   At the commencement of the hearing in this Court, the applicant’s counsel, Mr Lange, sought leave to advance a fourth ground of appeal:

8. [8]

   Both parties were granted leave to file further written submissions.

9. [9]

   During the proceedings on sentence, a signed Statement of Agreed Facts setting out the circumstances of the applicant’s offending was tendered. Before proceeding further, it is convenient to summarise the agreed facts for all the applicant’s offences other than those relating to ground 1. The agreed facts relevant to ground 1 are summarised below at [23].

Summary of the agreed facts

1. [10]

   On the evening of 18 June 2021, the applicant entered the car park of a Millers Point residential apartment block which was a secured and enclosed space. The applicant then stole a bicycle valued at around $400 parked in the car park and left the area. On two separate occasions later that night, the applicant was stopped by police and captured on body worn video in possession of the stolen bicycle.

2. [11]

   In the very early morning of 25 July 2021, the applicant was captured on CCTV footage entering the car park of a residential apartment block in Dee Why. The applicant was seen searching through the windows of parked cars using the flashlight on his phone, while also holding a wheel brace and metal pole. He then approached a motorcycle parked in one of the bays and used the metal pole to tamper with and strike the front wheel. He also shook the motorcycle and twisted the throttle causing damage. The estimated cost of repairing this damage was assessed to be $2469.41.

3. [12]

   On that same day at about mid-morning, the applicant was confronted by a female resident who had called the owner of the motorcycle. The applicant was approached by the owner and in conversation told them that he was just fixing the bike because “some kids tried to steal it”. Upon the owner insisting that the applicant remain and wait for the police to arrive, he attempted to leave the premises and was closely followed by the owner. At this point, the owner caught up with the applicant, and the applicant punched the owner’s chest with two closed fists. When this occurred, the owner stopped following the applicant on foot but continued observing the applicant from a distance in his car.

4. [13]

   On 20 November 2021, the applicant entered Michael Hill Jewellers in Westfields at Penrith, stole jewellery from the display area and left without paying. The CCTV footage showed that he had successfully picked the lock to a display cabinet and removed two trays of pendants, placing the jewellery in the front pocket of his jumper. The total value of the jewellery stolen by the applicant was $22,783. These items have not been recovered. The applicant was also captured driving to Westfields and leaving when he did not at that time hold a driver’s licence and was also disqualified from driving.

5. [14]

   On 25 November 2021, the applicant broke into a residence at St Clair by damaging the side fly screen and entering through the ground level window. The applicant stole several items from the property including two laptop computers, a money tin containing around $300, multiple pairs of shoes and jewellery. The total value of all the items stolen was approximately $12,650, which has not been recovered.

6. [15]

   On 16 December 2021 during the afternoon, the applicant and two co-offenders were captured on CCTV entering Selected Jewellery in Westfields at Miranda. The co-offenders momentarily distracted the store employee as the applicant unlocked a glass cabinet in the store and removed four watches. The CCTV footage also shows the applicant removing a diamond pendant and chain from a mannequin when leaving the store. The total value of the jewellery stolen was approximately $21,180, which has not been recovered. In a later recorded Electronically Recorded Interview with a Suspected Person (“ERISP”), the applicant made full admissions of the offending conduct during the incident.

7. [16]

   On 17 December 2021 in the afternoon, the applicant and a co-offender attended Angus and Coote inside Macquarie Shopping Centre. The CCTV footage appears to show that while the staff member was busy speaking with the co-offender, the applicant lifted a glass sliding window of a display case and took four rings. The applicant is seen on CCTV placing the rings in his pocket and leaving the store with the co-offender. The total value of the rings was $11,196, which has not been recovered.

8. [17]

   On 27 December 2021 in the early hours of the morning, the applicant broke into the premises of a Cars 24 site in St Mary’s and stole a Mercedes-Benz GLA 250. About two days later, employees noticed that a Mercedes had been stolen, along with various other items such as car keys and identification plates. The applicant was caught driving the stolen Mercedes in the police pursuit outlined below at [18]-[19] (H85199222), and the stolen items were recovered from inside that vehicle.

9. [18]

   On 29 December 2021, police spotted the applicant driving a stolen Mercedes-Benz GLA 250 as he passed through Willmot. The Mercedes was displaying a Victorian registration number plate belonging to an Audi Q3 8U station wagon. The applicant’s manner of driving caught the attention of police who then followed him. Upon seeing that the patrolling police car had activated its sirens and warning lights the applicant started accelerating away. A police pursuit ensued with the applicant travelling at speeds in excess of the speed limit. At one point during the pursuit, the applicant had increased his speed to approximately 80 km/h in a 50 km/h zone which was 30 km/h above the speed limit. The pursuit went on for over 5 kms and eventually ended when the applicant lost control of the vehicle and crashed into a tree.

10. [19]

    The co-offender, who sat in the passenger seat, was arrested nearby. The applicant fled the scene with a police officer pursuing him not far behind. The officer repeatedly requested and directed that the applicant get on the ground in order to be arrested but he did not comply. The applicant shaped up and threw several punches at the officer, which did not land, and made threats to “slash”, “stab” and “shoot” the officer. He also placed one arm under his jumper which caused the officer to believe that he was holding a knife. The officer in response raised his gun at the applicant. Once arrested, the applicant was searched and a small package containing 2.46 grams of buprenorphine was found. Police searched the vehicle the applicant had been driving and found a number of items including car keys belonging to seven cars, three different NSW registration plates, two laptops, black gloves, a bunch of power tools, two sunglasses and vehicle inspection forms for several cars.

Ground 1 – common law offence of escape

1. [20]

   The Court Attendance Notice (“CAN”) is as follows:

2. [21]

   Although the CAN does not provide particulars of the indictable offence, it is common ground that the indictable offence described is the common law offence of escape from lawful custody.

3. [22]

   The applicant also entered a plea of guilty to the common law offence of escape from police custody. The CAN is in the following terms:

4. [23]

   The agreed facts for these offences which occurred on 30 December 2021 are as follows:

5. [24]

   The applicant complains that the agreed facts for the offence of entering a building with the intent of committing an indictable offence do not as a matter of law establish the offence. The applicant pointed out that he had pleaded guilty to the common law offence of escape from police custody (see [22] above).

6. [25]

   The single authority in NSW on the common law offence of escape is the decision of the Full Court of the Supreme Court in R v Tommy Ryan (1890) 11 LR (NSW) 171 (“Tommy Ryan”). In Tommy Ryan, Windeyer J observed at 196 that the offence of escape is a continuing offence. The applicant contends that Tommy Ryan should no longer be followed.

7. [26]

   The applicant cited R v Scott [1967] VR 276 (“Scott”) in which the Full Court of the Supreme Court of Victoria unanimously declined to adopt the reasoning in Tommy Ryan. Particular reference was made to the judgment of Smith J in Scott at 285-286. The applicant submitted that this Court would conclude that Tommy Ryan should not be followed and find the reasoning in Scott to be correct. The applicant pointed out that the conclusion that escape is not a continuing offence is supported by New Zealand authority which has considered this issue. In particular, the applicant cited the New Zealand decisions of R v Keane [1921] NZLR 581 (“Keane”) at 583 and R v Kura [2008] NZCA 337 (“Kura”) at [16].

8. [27]

   Referring to the agreed facts to which he had entered his plea of guilty, the applicant argued that by the time he had entered the residence on Victoria Road (“the premises”), he had already committed the common law offence of escape. He was no longer in the direct vicinity of the police officers, who had lost sight of him. It was submitted that as the applicant could not be convicted of entering the premises with intent to commit the offence of escape, a miscarriage of justice had been occasioned and his plea of guilty should be set aside.

9. [28]

   The Crown submitted that on the agreed facts, the applicant could in law be convicted of the offence charged. In addition to Tommy Ryan, Scott and the New Zealand decisions cited by the applicant, the Crown referred to R v Ryan and Walker [1966] VR 553 (“Ryan and Walker”), a joint judgment of the Full Court of the Supreme Court of Victoria (Winneke CJ, Hudson and McInerney JJ) at 562, in which the Full Court said that while an accused would be liable for the offence of escape immediately upon exiting a prison, it did not necessarily follow that an accused was “not still committing the offence at the stage when he is in the act of making good his escape after his emergence”. The Crown submitted that insofar as it may be suggested that Ryan and Walker stands for the authority that a person is only committing the offence of escaping lawful custody when they are in the immediate vicinity of the area in which the person originally escaped, this submission should be rejected.

10. [29]

    The Crown argued that the applicant’s contention that Scott and the New Zealand decisions are authorities for the proposition that the common law offence of escaping lawful custody is complete when the offender is no longer in the immediate vicinity, sight or control of police should be rejected. The Crown cited a further New Zealand authority of R v Kafka [1962] NZLR 351 (“Kafka”). The Crown pointed out that the New Zealand decisions were not concerned with the common law offence of escaping lawful custody but rather with statutory offences under New Zealand legislation.

11. [30]

    The Crown contended that the offence of escaping lawful custody was not complete by the time the applicant entered the premises. The Crown submitted, adopting the language in Ryan and Walker, that the applicant continued to commit the offence when he hid in the house “to make good his escape”.

12. [31]

    In oral argument, Mr Lange, submitted that the statute being considered by the New Zealand cases was similar to the offence of escape under s 310D of the Crimes Act. Mr Lange argued that the law of escape ought to be that “a person escapes from the moment he breaks free from his lawful custody until such time as he is no longer under the control of the person exercising lawful authority nor in his view”. [1]

13. [32]

    In order for this Court to grant leave to the applicant to withdraw his plea of guilty to the offence contrary to s 114(1)(d) of the Crimes Act, the applicant must establish that upon the facts admitted by the plea he could not in law have been guilty of the offence: Meissner v The Queen (1995) 184 CLR 132 at 157 (Dawson J); [1995] HCA 41 (“Meissner”). A miscarriage of justice will have occurred if the applicant establishes he could not lawfully have been convicted of the charge of entering the premises with intent to commit the indictable offence of escape from lawful custody by hiding inside that dwelling house contrary to s 114(1)(d) of the Crimes Act: R v Liberti (1991) 55 A Crim R 120 at 121 (Kirby P, Grove and Newman JJ agreeing); Meissner at 157 (Dawson J); Nassr v R [2015] NSWCCA 284 at [5] (Meagher JA, Rothman and Bellew JJ).

14. [33]

    The question in this ground of appeal is whether the applicant was continuing to commit the common law offence of escaping from lawful custody when he entered the premises or the offence was complete at the time police officers lost sight of him after he broke away.

15. [34]

    It appears that this issue has not been considered by this Court since Tommy Ryan was decided in 1890. The relevant principle arising from Tommy Ryan is that the common law offence of escaping is a continuing offence. In that case, the offender escaped from Grafton Goal and eluded pursuit for two months. He was eventually arrested by a police officer without a warrant and taken to a lock-up at Copmanhurst, where he was held in a cell. A few days later, the same police officer entered the cell and attempted to handcuff the offender to take him back to Grafton Goal, but the offender resisted. During the struggle, the offender seized the officer’s revolver and shot him in the face, incapacitating the officer and then escaped the lock-up. At trial, the jury acquitted the offender of intent to do grievous bodily harm but found him guilty of maliciously wounding although finding that the offender had used no more force than was necessary for his escape. The Full Court upheld the offender’s conviction based on finding that the general verdict of the jury was correct.

16. [35]

    The pertinent question for determination by the Full Court was whether the offender was committing the offence of escaping from lawful custody when he shot the officer. At 195-197, Windeyer J stated:

17. [36]

    Innes J, at 199, agreed that the offender was still escaping because “clearly he was trying at the time of his arrest to make good his escape”. Similarly, Foster J stated at 216 that:

18. [37]

    In the present appeal, the applicant gave the following evidence during the proceedings on sentence about what occurred after he broke away from the police officers:

19. [38]

    From the applicant’s evidence, it is plain that at the time he entered the premises he was fleeing from the police and tried to hide to make good his escape. He was in the process of escaping. In accordance with the principles enunciated in Tommy Ryan, the applicant is guilty of the offence.

20. [39]

    The applicant places considerable reliance on Scott, a decision of the Full Court of the Victorian Supreme Court in late 1966.

21. [40]

    Scott was preceded by around 5 months in 1966 by the joint judgment in Ryan and Walker. In that case, the applicants, Ryan and Walker, were charged with the murder of Hodson, a warden at Pentridge Gaol in Coburg Victoria, in the course of escaping from that gaol. Ryan was convicted of murder and sentenced to death, whereas Walker was convicted of manslaughter.

22. [41]

    On appeal, the applicant Ryan complained that the judge erred in ruling that, for the purpose of establishing felony murder, the shooting occurred at a time when the applicants were committing an offence of escaping from lawful custody contrary to s 35 of the Gaols Act 1958 (Vic). Section 35 was relevantly as follows:

23. [42]

    This offence was later said in Scott by Smith J at 286 to mirror the common law offence of escaping from lawful custody. The applicant Ryan argued that the offence of escaping from lawful custody was complete as soon as he had cleared the external wall of the gaol. The trial judge ruled that the escape was not in fact complete as the applicants had not made good their getaway when the murder was alleged to have committed.

24. [43]

    On appeal, the view taken by the trial judge was said to be supported by the decision in Tommy Ryan. In support of Ryan’s contention that the construction adopted by the trial judge was erroneous, reliance was placed on Keane, a decision of the Supreme Court of New Zealand. The Full Court of the Victorian Supreme Court (Winneke CJ, Hudson and McInerney JJ) held that the trial judge’s construction of s 35 of the Gaols Act was correct. The Full Court stated at 562:

25. [44]

    The Court was of the view that it was a matter of fact for the jury to determine when the process of escaping had been completed. The Court said at 563:

26. [45]

    In Scott, while serving a sentence of imprisonment at Beechworth Training Prison, the appellant went missing from a working group clearing timber under the supervision of a warder outside the gaol buildings. After the appellant went missing, he travelled to Sydney and committed a robbery. On expiration of his sentence in Sydney, the appellant was extradited to Victoria on a charge of unlawfully escaping from lawful custody contrary to s 35 of the Gaols Act.

27. [46]

    At trial, the appellant gave evidence that during the timber clearing, he was struck over the head with a piece of wood by another prisoner, Mr Wilson, and lost consciousness. When he regained consciousness, he realised he was out of the custody of the gaoler and did not want to return to face Mr Wilson who had assaulted him and had threatened to harm him on numerous previous occasions. At issue was whether, if the appellant’s account was accepted, he could be found guilty of escape at law by finding himself involuntarily at large and deciding to remain so.

28. [47]

    The Crown relied upon the decision of Tommy Ryan to support the contention that as the offence of escape was a continuing one, the offence could be committed in circumstances where the person found themselves out of custody and “decided not to give himself up”. In rejecting this argument, Smith J said at 285:

29. [48]

    It was against this background that Smith J considered the case of Tommy Ryan and concluded that it was not “satisfactory authority” for the following reasons at 285-286:

30. [49]

    Smith J then held at 286:

31. [50]

    Barry J said at 278:

32. [51]

    It is apposite to observe that the factual circumstances in Scott are far removed from the present case. Critical to the reasoning of Smith J was that the appellant being rendered unconscious found himself to be “innocently at large”. Scott is authority for the proposition that the offence of escape cannot be committed by finding oneself at liberty and deciding not to give oneself in, that is, escaping must be a conscious and intentional act.

33. [52]

    In Keane, a 1921 decision of the New Zealand Court of Appeal, the accused, Mr Keane was charged with assisting a prisoner in escaping or attempting to escape from lawful custody contrary to s 145 of the Crimes Act 1908 (NZ) (now s 120 of the Crimes Act 1961 (NZ)). The accused was alleged to have assisted in the escape as he met with the prisoner outside of prison at a hotel in Auckland and lent him some clothes. The question for the New Zealand Court of Appeal was whether the prisoner was escaping or attempting to escape from lawful custody at the time the accused had assisted him. The Court of Appeal expressed the view that once the prisoner had regained his liberty it was clear he had already escaped and therefore, impossible for the accused to have assisted the prisoner in escaping. The Court ultimately held that escape was not a continuing act and introduced a test for determining the completion of an escape based on sight and control of police officers or prison officials. Sim ACJ (delivering judgment for the Court, which also comprised Hosking, Stringer and Salmond JJ) said at 583:

34. [53]

    In Kafka, a 1960 decision of the Supreme Court of New Zealand, a prisoner who had been sentenced to life imprisonment for murder, evaded his gaolers and hid in the roof of the prison. The accused, Mr Kafka, supplied the prisoner with food and was charged with assisting the prisoner in an attempt to escape from lawful custody. Counsel for Mr Kafka relied on the decision of Keane to submit that at the time Mr Kafka assisted the prisoner, the prisoner was no longer in lawful custody and had made good his escape. TA Gresson J found that “in reality and in law” the prisoner was still in lawful custody as he had not physically got outside the precincts of the goal despite his whereabouts being unknown. His Honour said at 352:

35. [54]

    In Kura, a 2008 decision of the New Zealand Court of Appeal, Mr Kura had been granted bail on the condition that he not enter licenced premises or consume alcohol. After locating Mr Kura in a bar, police officers arrested him but as they did, he ran off down the road. The appellant remained at all times within the sight of the officers. He was convicted by a jury of injuring two police officers with intent to escape and of escaping from custody. The question for the Court of Appeal was whether the appellant had truly “escaped” because he was never out of the sight of the officers. The Court stated the present case was factually different to Keane and that the real issue was not whether the officers had lost sight of Mr Kura but rather whether they had lost control over him. The Court (O’Regan, Chisholm and Ronald Young JJ) held at [16]:

36. [55]

    In Kura, the New Zealand Court of Appeal departed from a strict application of the binary factors in Keane of out of sight and loss of control to determine when an escape was completed. The Court established that the relevant consideration when a person is running away from arresting officers is whether that person has escaped lawful custody in the sense that the officers have lost control over the person after the arrest. In such a case, whether the person running away was out of sight of the officers was not required to conclude that they had escaped lawful custody.

37. [56]

    The reasoning of the New Zealand Court of Appeal raises a number of questions. Is there any temporal qualification to a loss of control? Is an escape complete when a prisoner initially breaks free from the control of the officers but is brought back under their control within minutes? Does it accord with reality that despite a momentary loss of control of a prisoner, that escapee may still be pursued and may still hide from officers yet be considered to have completed his escape? Does the concept of loss of control place an artificial limitation on the common law offence of escape (bearing in mind that the New Zealand authorities were considering New Zealand legislation)?

38. [57]

    Two UK Court of Appeal decisions have relevantly considered the elements of the common law offence of escaping from lawful custody: See, eg, R v Dhillon [2005] EWCA Crim 2996; [2006] 1 WLR 1535 (“Dhillon”); R v Reid (Stuart William) [2015] EWCA Crim 597 (“Reid”).

39. [58]

    In Dhillon, the defendant was arrested and after being taken to the police station, it appeared he might have suffered a knee injury. He was then taken by a police officer to hospital to receive treatment. At the hospital, after the defendant had received his treatment, he went back into the hospital waiting room but noticed that no police officers were waiting for him. Seeing no police officers, he left the hospital and went home. The defendant was convicted by a jury of the common law offence of escaping from lawful custody. On appeal, the defendant argued that the trial judge had inadequately directed the jury as to the elements of the offence. The Court of Appeal allowed the appeal and quashed the defendant’s conviction because of the inadequate direction to the jury on the ingredients of the offence: at [26]-[27]. Steel J, delivering judgment for the Court, after conducting a review of the relevant UK authorities relating to the offence of escaping summarised them at [21]:

40. [59]

    In Reid, Lord Thomas of Cwmgiedd, the Lord Chief Justice of England and Wales, emphasised that the common law offence of escape from lawful custody was ultimately a question of fact. In that case, John Anslow was a prisoner and whilst being transported to court, a gang of three men attacked the prisoner transport van and facilitated Mr Anslow’s escape. The applicant, Mr Reid, had provided Mr Anslow with a telephone number in a coded Christmas card and copies of Mr Anslow’s passport were found at Reid’s home. It was alleged that the copies were to be used to assist Mr Anslow obtain further documents. The applicant was charged with conspiracy to escape.

41. [60]

    The Lord Chief Justice said at [13]:

42. [61]

    In my view, the approach taken by the Lord Chief Justice in Reid to the common law offence of escape is sensible. It is not constrained by the imposition of boundaries such as the lack of immediate pursuit, loss of control or being out of sight. It accords with common sense and does not overcomplicate this area of the law. However, there is a temporal limitation to the offence. Escape does not continue indefinitely as there will come a time that the escape has been completed such that the escapee becomes a fugitive from justice. The emphasis placed on a factual finding mirrors what was said in Ryan and Walker in the passage extracted at [44] above.

43. [62]

    In the present case, as I have stated at [38] above, the applicant was in the process of escaping when he entered the premises. A jury, properly instructed, could not reasonably reach any other conclusion.

44. [63]

    Neither party suggested that a five-judge bench be constituted, although convening such a bench is not always a necessity before this Court can consider whether to depart from an earlier intermediate appellate decision: Moriarty v Nye [2024] NSWCCA 116 at [98]-[99] (Kirk JA, Wilson and Yehia JJ).

45. [64]

    Given the conclusion I have reached above at [62], it is not necessary in the present case to resolve whether Tommy Ryan should be overruled. In any event, I am not persuaded that Scott and the New Zealand authorities discussed have established that Tommy Ryan is plainly wrong and that there are compelling reasons for this Court to depart from it: Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76; Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 at [72]-[76] (Bell CJ, Gleeson JA, Harrison, Adamson and Dhanji JJ agreeing).

46. [65]

    In my view, the New Zealand authorities should not be followed in this State. The common law offence of escape is a continuing offence. As to Tommy Ryan, I express my reservation about the offence continuing so long as the person escaping is kept out of imprisonment. It seems to me there will be a time when as a question of fact, the escape has been completed. However, that is not an issue that arises in the present case and my observation does not alone justify overruling Tommy Ryan.

47. [66]

    The applicant has not established that upon the agreed facts he could not in law have been guilty of the offence. I would dismiss Ground 1.

Ground 2 – commencement date of the aggregate sentence

1. [67]

   The applicant referred to the Crown sentencing summary before the judge, correctly noting that a number of offences had been committed while he was subject to an intensive corrections order (“ICO”) or parole. The document also correctly noted that the parole had not been revoked as a result of the offending with which the judge was dealing. This was confirmed by the applicant’s custodial history. The applicant pointed out that although there had been a previous revocation of parole, that revocation was rescinded, and in any event, related to prior offending which resulted in the imposition of an ICO. Although it was not referred to in the Crown sentencing summary, the applicant’s ICO was also not revoked as a result of his offending.

2. [68]

   The applicant’s complaint was that, when dealing with the appropriate commencement date of the aggregate sentence, the judge stated: [2]

3. [69]

   The applicant contended that in doing so the judge fell into error by taking into account irrelevant considerations, namely the applicant supposedly having “previously serv[ed] time” for revocations, which had not in fact taken place. The applicant submitted that the judge appears to have misunderstood his custodial history.

4. [70]

   Another argument was that if the Court was to conclude that the judge had not mistakenly thought that the applicant’s time in custody was referrable to revocations of parole and an ICO, it was nevertheless erroneous for his Honour to proceed on the basis of a “notional” revocation of those orders. The applicant cited Skondin v R [2006] NSWCCA 59 at [16]-[17] (Simpson J, Spigelman CJ and Adams J agreeing).

5. [71]

   The applicant accepted that he was not necessarily entitled to have his aggregate sentence commence on the date of his arrest, since subsequent to his arrest he was sentenced to imprisonment for a period of 6 months, commencing on 19 January 2022 and concluding on 18 July 2022 for an offence of driving whilst disqualified.

6. [72]

   The Crown argued that the judge’s language being “I think” relating to the “ICO or parole” does not demonstrate that the judge acted on the basis that the applicant’s ICO or parole had been revoked. The Crown also relied on the sentence summary provided to the judge at the sentence hearing which stated that parole was neither revoked nor could it be revoked, and on the applicant’s counsel’s advice to the judge that the ICO had not been revoked. Furthermore, both the Crown and the applicant’s counsel informed the judge that the applicant had served six months in custody for an offence of driving whilst disqualified during the period of pre-sentence custody. The Crown pointed out that it was by reference to this offence only that the Crown submitted to the judge that an appropriate commencement date was between December 2021 and July 2022.

7. [73]

   The Crown argued that the applicant’s submission that the judge may have regarded the balance of the ICO as being “notionally revoked” should be rejected as there was no mention of the ICO being notionally revoked. Furthermore, the submission was irreconcilable with the judge’s sentencing remarks.

8. [74]

   The Crown submitted that the judge’s mistaken attribution (in somewhat equivocal terms, that is, “I think”) to an “ICO and parole” was not a material error which had the capacity to guide or affect the determination of the commencement date of the sentence.

9. [75]

   In written submissions to the judge, the Crown had brought to his Honour’s attention that “although the [applicant] served a total of 1 year and 10 months overall in custody, 6 months was served in custody whilst serving a sentence for an unrelated matter”. [3] The Crown submitted that “a commencement of sentence date in between 30/12/2021 and 18/07/2022 might be warranted in [the] courts discretion”.

10. [76]

    The “unrelated matter” referred to by the Crown in written submissions was an offence of driving while disqualified for which the applicant was sentenced in the Local Court to a fixed term of imprisonment of 6 months to date from 19 January 2022 to 18 July 2022.

11. [77]

    In the applicant’s written submissions to the judge, his Honour was informed that the applicant had been arrested on 30 December 2021 and had remained bail refused. It was submitted that he had been in custody for about 1 year, 10 months and 19 days. However, during the period 19 January 2022 to 18 July 2022, he had served 6 months imprisonment for a sentence imposed in the Local Court.

12. [78]

    In the proceedings on sentence, during discussions concerning pre-sentence custody with the applicant’s counsel, his Honour was informed that the ICO was not revoked and his Honour should put that aside. His Honour then said: [4]

13. [79]

    It was made clear by the parties to the judge that the only sentence which required consideration in the exercise of his discretion in calculating the commencement of the sentence was the fixed term of imprisonment of 6 months. However, in his remarks on sentence, his Honour said: [5]

14. [80]

    By commencing the sentence on 20 March 2022, the judge backdated the sentence by 1 year and 8 months. As at the date of sentence, the applicant had served 1 year, 10 months and 22 days in custody, of which 1 year, 4 months and 22 days were solely referable to the offences for which he was being sentenced. The concurrency with the sentence that “he was previously serving time for” was 2 months, which suggests that his Honour had in mind the 6 month sentence imposed in the Local Court.

15. [81]

    As has often been stated, the commencement date of the sentence is a matter of discretion for the sentencing judge and a House v The King (1936) 55 CLR 499; [1936] HCA 40 error must be established for the applicant’s challenge to the commencement date to succeed: Delaney v R [2013] NSWCCA 150; (2013) 230 A Crim R 581 at [60] (Hoeben CJ at CL; Harrison and Beech-Jones JJ (as their Honours then were) agreeing); Refaieh v R [2018] NSWCCA 72; (2018) 272 A Crim R 245.

16. [82]

    Furthermore, it is well established that an error made by a sentencing judge must amount to a “material error” so that the sentencing discretion miscarried. As Wright J (with whom Basten JA and Price J agreed) observed in Rizk v R [2020] NSWCCA 291 at [71]:

17. [83]

    The expression by his Honour of the words “I think” suggests some uncertainty. However, I am not persuaded that his Honour had in mind any period in excess of 6 months which the applicant had served in pre-trial custody. Should his Honour have been mistaken in his understanding that that period of pre-trial custody resulted from a revocation of the ICO and balance of parole, I am not persuaded that the error had a material impact on the exercise of discretion as to the commencement date of the sentence. The commencement date of 20 March 2022 was well within the proper exercise of his Honour’s discretion.

18. [84]

    There is no merit in the applicant’s alternative submission concerning “notional” revocations of an ICO and parole.

19. [85]

    Ground 2 of the appeal has not been established.

Ground 3 – incorrect maximum penalty

1. [86]

   The Crown’s concession that his Honour was in error in indicating the sentences for the two driving whilst disqualified offences is correctly made and should be accepted. These are offences H85166214/2 and H85199222/5 in the table at [5] above. The maximum penalty for both offences, being driving whilst disqualified (with prior offending) contrary to s 54(1)(a) of the Road Transport Act 2013 (NSW), was a term of imprisonment of 12 months. The maximum penalty had been reduced from a period of 2 years imprisonment down to 12 months as a result of the amendments made by Schedule 1, item [3] of the Road Transport Amendment (Driver Licence Disqualification) Act 2017 (NSW), which commenced on 28 October 2017.

2. [87]

   During the proceedings on sentence, his Honour noted that “the maximum penalty has been halved”, however he appeared to overlook this when announcing the indicative sentences. Unfortunately, this seems to be due to the Crown sentencing summary which stated that the maximum penalty was 2 years imprisonment which was not corrected during the proceedings on sentence. During his remarks on sentence, his Honour said that he relied on the maximum penalties “as set out in the table” and “they are guideposts in my sentencing task”. [6]

3. [88]

   The indicative sentence for offence H85166214/2 was 12 months imprisonment with a 12 month licence disqualification. For offence H85199222/5, the indicative sentence was 14 months imprisonment with a 12 month licence disqualification. By indicating sentences of imprisonment which were either equivalent to the maximum or in excess of the maximum penalty notwithstanding a 25% discount for the guilty pleas, it is plain that his Honour acted on the incorrect maximum penalty.

4. [89]

   In my view, acting upon the erroneous maximum penalty had the capacity to materially impact the aggregate sentence imposed. I am satisfied that an error of the type referred to in House v The King has been demonstrated: Andreata v R [2015] NSWCCA 239 at [28] (Beech-Jones J, Ward JA (as their Honours then were) and Adams J agreeing); Kandemir v R [2018] NSWCCA 154 at [66] (Price J, Beazley P and R A Hulme J agreeing).

5. [90]

   Given that the sentence imposed was affected by error, it is accordingly necessary for this Court to re-exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ).

6. [91]

   Ground 3 of the appeal has been established.

Proposed Ground 4 – new and fresh evidence relating to the applicant’s sexual abuse in juvenile detention

1. [92]

   Before proceeding to re-exercise the sentencing discretion, it is appropriate to address proposed ground 4 as it is relevant to that process.

2. [93]

   As has been stated at [7] above, the applicant’s counsel at the commencement of the hearing sought leave to advance a fourth ground of appeal. The applicant’s counsel handed up to the Court written submissions in support of that application.

3. [94]

   Both parties were granted leave to file further written submissions.

4. [95]

   The Court has received written submissions from the Crown dated 22 November 2024 and further supplementary written submissions on behalf of the applicant dated 4 December 2024 and 18 December 2024.

5. [96]

   Shortly stated, the Crown opposes the application and submits that this Court should decline to admit the fresh and new evidence tendered by the applicant.

6. [97]

   The applicant’s fourth ground of appeal contends that the judge erred in the finding his Honour made in sentencing remarks that the applicant had “been physically mistreated but not sexually in a custodial environment as he articulates”. [7] The custodial environment referred to is Reiby Juvenile Justice Centre (“Reiby”).

7. [98]

   The applicant contends that the proposed ground is based upon the availability of fresh and new evidence. The fresh evidence was annexed to an affidavit affirmed by the applicant’s solicitor, Ms Howard, on 15 November 2024 (MFI A). The annexure is a letter from Gerard Malouf & Partners dated 15 November 2024, which states that the applicant had received a confidential settlement in relation to “a compensation claim for historical abuse”. In her affidavit, Ms Howard notes that she is instructed that the compensation claim settled after the sentence proceedings before the judge.

8. [99]

   In a further affidavit of Ms Howard, affirmed 15 November 2024 (MFI B), a letter dated 15 February 2023 by the Director of Communities and Justice to the applicant is annexed. The letter includes the following:

9. [100]

   Both the applicant and the Crown agree that the letter annexed to MFI A is “fresh evidence” as it relates to a settlement concluded after the sentence proceedings. Both parties also agree that the letter annexed to MFI B is “new evidence”. This evidence was available but not used, or in the exercise of reasonable diligence able to have been obtained at the time of sentence: Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 at [107] (Simpson J, Davies J and Grove AJ agreeing).

10. [101]

    The applicant submits that this additional evidence is material as his Honour’s rejection of the applicant’s account of sexual assault must have led to the rejection of Dr Allnutt’s conclusion, expressed in Dr Allnutt’s report of 16 August 2021 (“the Allnutt report”), of there being a causal connection between the abuse and the aggravation of the applicant’s various mental conditions.

11. [102]

    The applicant contends that on the basis of Dr Allnutt’s report, the judge ought to have concluded that his moral culpability was moderated to a greater extent than the judge found.

12. [103]

    A further affidavit of Ms Howard was filed on 4 December 2024 without the leave of the Court being sought. When reminded of the obligation to seek leave, the applicant’s counsel sought leave to read the affidavit in order to support the arguments advanced for the addition of ground 4. The applicant submits that this affidavit confirms the reason why the material in relation to the settlement was not in possession of the applicant’s solicitors. Furthermore, it provides the explanation that some of the documentation was not available at the sentence hearing because the finalisation of the civil settlement postdated the sentence hearing.

13. [104]

    The Crown opposed this affidavit being read.

14. [105]

    In this affidavit, Ms Howard annexes a copy of the statement of claim received on 27 November 2024 from Gerard Malouf & Partners and copies of two letters from these solicitors to the applicant dated 19 April 2024. The statement of claim is “new evidence” and the letters “fresh evidence”.

15. [106]

    The Crown submits that the additional evidence would not have had a real bearing on the exercise of the sentencing discretion. The first reason advanced by the Crown is that the “fresh evidence” does not identify the nature of the “historical abuse” or any terms of the settlement. Secondly, the findings of the judge as to the sexual abuse did not in this case have a real bearing on the exercise of the sentencing discretion as the judge did not reject Dr Allnutt’s opinion that the abuse suffered at Reiby aggravated the applicant’s pre-existing substance abuse disorder. The Crown submitted that the judge referred, without demurrer, to Dr Allnutt’s opinion to this effect. His Honour’s findings that the applicant had been physically abused at Reiby provided the evidential basis for acceptance of this opinion.

16. [107]

    The Crown referred to the judge declining to find that the applicant’s mental health conditions were causally related to the offending. The Crown pointed out that Dr Allnutt having prepared his report prior to the commission of the offences did not proffer an opinion on this issue. The Crown argued that this finding was not impacted by the judge’s finding about sexual abuse.

17. [108]

    The third reason advanced by the Crown was that notwithstanding the finding of no causal connection, the judge did accept that the applicant had reduced moral culpability, albeit “only to a limited degree”. [8]

18. [109]

    The Crown argued that neither the new nor the fresh evidence has the potential to impact his Honour’s finding or to increase the degree to which the moral culpability would be reduced.

19. [110]

    Another argument made by the Crown was that error by the judge had not been established as his Honour’s conclusion was reasonably open on the evidence. In written submissions in reply, the applicant emphasised that it is not suggested that the judge ought on the material before him have found that the applicant was sexually mistreated. The proposed ground of appeal was based on the availability of fresh and new evidence.

20. [111]

    The applicant submitted that the ultimate question is whether, if the evidence is admitted, this evidence leads this Court to conclude that a lesser sentence is warranted in law.

21. [112]

    The applicant argues that a finding he had been sexually mistreated would have provided insight into his psychological state and only with full appreciation of what occurred could the judge understand the degree to which the development of his antisocial personality disorder, in particular, had been affected by matters outside of his control.

22. [113]

    The Allnutt report was not prepared for the applicant’s sentence proceedings but for his personal injury claim arising from the abuse the applicant sustained in 2000 and 2001 at Reiby. The documentation provided to Dr Allnutt included a sealed copy of a statement of claim and the applicant’s statement dated 31 March 2021.

23. [114]

    Dr Allnutt recorded that the applicant was at Reiby for two months. The applicant reported that he was abused by three people – Julian, Big Mike and Nadia. The episodes of abuse occurred separately. Julian abused him by coming into his room and bashing him around the head and body because he was “cheeky”. On the second occasion, Julian came into his cell and started bashing him. Julian hit him so hard that he lost consciousness. The applicant woke up with his clothes ripped, the cell locked and blood coming out of his anus. Big Mike bashed him physically in his cell a number of times. Nadia would come into his cell, fondle his penis and stimulate him until ejaculation.

24. [115]

    Dr Allnutt was of the opinion that the applicant manifested a constellation of symptoms consistent with post-traumatic and depressive symptoms. He was also diagnosed with an antisocial personality disorder and substance use disorder in early remission.

25. [116]

    As to the causation of the applicant’s mental health difficulties, Dr Allnutt stated that “[r]eliably establishing causation is limited by the passage of time in cases of historical sexual abuse. Not all victims of childhood sexual abuse (CSA) develop mental health difficulties …” [9]

26. [117]

    Dr Allnutt went on to note that the applicant entered Reiby as a vulnerable youth. The abuse factors he experienced would have compounded his antisocial symptoms. Dr Allnutt opined that the “applicant has likely experienced ongoing chronic post-traumatic stress symptoms through his life, which have probably fluctuated in intensity”. [10]

27. [118]

    Dr Allnutt reported there was evidence that the applicant “was manifesting the emergence of an antisocial personality disorder (conduct disorder) and a substance use disorder before entering Reiby”. Dr Allnutt noted that “[a]bout half of children manifesting conduct disorder in childhood go on to develop an antisocial personality disorder in adulthood”. Dr Allnutt concluded, “[o]n balance, it is likely that [the applicant] would have continued to pursue an offending and substance-using lifestyle, but in my view, the index injury (given the circumstances) aggravated his antisocial personality and substance abuse disorder”. [11]

28. [119]

    Dr Allnutt opined that the applicant’s prognosis was relatively guarded. He stated that “[i]t is fair to say that as people with antisocial personality disorder age their offending begins to diminish particularly when they reach your client’s age, but his prognosis, at this stage, is guarded”.

29. [120]

    In addition to Dr Allnutt’s report, the written material before the judge included an unsworn affidavit of the applicant’s brother Youssef Elali who stated at [5]:

30. [121]

    Justice Health Records dated 22 May 2022 recorded that the applicant reported “trauma from physical and sexual abuse at [Reiby] when he was 13-14 years old”.

31. [122]

    In his oral evidence before the judge, the applicant confirmed that the first time he had told anyone of the abuse at Reiby was when he spoke to Dr Allnutt.

32. [123]

    The applicant does not suggest that the judge’s findings were not open on the evidence before his Honour. Rather, the applicant challenges the judge’s findings on the basis that the availability of new and fresh evidence placed before this Court was capable of affecting the outcome of the sentencing proceedings such that a different and more favourable finding would have been made in relation to the applicant’s sexual abuse at Reiby and in those circumstances, there has been a miscarriage of justice.

33. [124]

    It is apparent that the judge found there were some inconsistencies in the applicant’s evidence. As to the applicant’s testimony of the abuse at Reiby, his Honour remarked: [12]

34. [125]

    His Honour made the following findings later on in his sentencing remarks: [13]

35. [126]

    The Crown opposes leave being granted for the applicant to read the affidavit of Ms Howard filed on 4 December 2024: see [103]-[105] above.

36. [127]

    During the hearing of the appeal, this Court granted leave to the parties to file written submissions. No order was made granting leave to file additional evidence. This Court has emphasised that in only exceptional circumstances will parties be permitted to file supplementary submissions without leave after the hearing of the appeal: Nguyen v R [2008] NSWCCA 322 at [30]-[31] (Tobias JA, James and Price JJ agreeing); Roach v R [2019] NSWCCA 160 at [191]-[192] (Bathurst CJ, Bell P (as his Honour then was) and Johnson J). This principle must also apply to additional evidence. The hearing is the time and place to present evidence.

37. [128]

    The statement of claim and letters annexed to the affidavit could have been obtained from Gerard Malouf & Partners well before the hearing.

38. [129]

    The applicant has not demonstrated that exceptional circumstances are present so that the affidavit may be read.

39. [130]

    I turn now to the affidavits of Ms Howard affirmed on 15 November 2024 and marked respectively MFI A and MFI B.

40. [131]

    It is unfortunate that the applicant’s legal representatives in the proceedings before the judge appear not to have made some enquiries of the solicitors who were acting for him in his compensation claim for historical abuse against the State. The exercise of reasonable diligence would have obtained a copy of the letter from the Director of Communities and Justice annexed to MFI B which I have quoted in part at [99] above. The apology in that letter provides significant support for the applicant’s claim of sexual abuse. It is not necessary for this Court to consider any issue bearing upon the competence of the applicant’s legal representatives in failing to place that material before the judge and neither is there a ground of appeal that makes that challenge: Pym v R [2014] NSWCCA 182. However, it is relevant to have regard to the recent decision of Shortland v R [2024] NSWCCA 174 (“Shortland”), where Stern JA (with whom Cavanagh and Sweeney JJ agreed) held at [45]-[49] that irrespective of whether there was any incompetence of counsel, a miscarriage of justice may arise where “material evidence was available and relevant to the sentence” but the applicant was “deprived of the opportunity to have that material considered in mitigation of the sentence”: at [46].

41. [132]

    The principles relating to the admission of fresh or new evidence on appeal were summarised by Hamill J (with whom Gleeson JA and Ierace J agreed) in Barnes v R [2022] NSWCCA 140; (2022) 299 A Crim R 483 at [24]-[34] (“Barnes”).

42. [133]

    Whilst this Court does not readily receive new evidence, the Court’s jurisdiction is concerned with the prevention of a miscarriage of justice: Barnes; Shortland. In this case, the evidence sought to be relied upon by the applicant is both “fresh” and “new” evidence. Viewed in combination with the Director’s letter, a plainly available inference from the fresh evidence in MFI A is that the settlement embraced his claim for both physical and sexual abuse.

43. [134]

    The question remains whether the additional evidence may have had a “real bearing” upon the exercise of his Honour’s sentencing discretion: R v Goodwin (1990) 51 A Crim R 328 at 330 (Hunt J, Grove J agreeing); Kaveh v R [2017] NSWCCA 52 at [33] (Latham J, Basten JA and Campbell J agreeing).

44. [135]

    I am satisfied that had the fresh and new evidence been before the judge that his Honour would have found on the balance of probabilities that the applicant had been both physically and sexually abused at Reiby: Da Silva v R [2024] NSWCCA 216 at [18] (Stern JA, Dhanji and Faulkner JJ agreeing).

45. [136]

    I reject the Crown’s contention that a finding of sexual abuse would not have had any impact on his Honour’s assessment of moral culpability or on the question of causation: R v AGR (Court of Criminal Appeal (NSW), 24 July 1998, unrep); Nasrallah v R (2021) 105 NSWLR 451; [2021] NSWCCA 207 at [12] (Bell P, as his Honour then was); Shaw v R [2024] NSWCCA 241 at [56] (Yehia J, Davies and N Adams JJ agreeing). The profoundly detrimental effect upon a child of sexual abuse is well recognised by this Court: R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469 at [110] (Leeming JA, Johnson and Hall JJ). The applicant was 13-14 years old at the time he was physically and sexually abused at Reiby.

46. [137]

    A finding of sexual abuse is significant and not a matter that can readily be put aside in a sentencing exercise. I am satisfied that the additional material may have had a real bearing on the aggregate sentence imposed and had it been before the judge there would have been a material prospect of the applicant receiving a lesser sentence. The absence of that material during the sentencing proceedings deprived the judge of fully appreciating and considering the circumstances of the applicant’s sexual abuse at Reiby and in this exceptional case, results in a miscarriage of justice. As the applicant is to be re-sentenced, the sexual abuse will be taken into account.

47. [138]

    Accordingly, the additional evidence will be admitted. I grant leave to the applicant to add ground 4 to his appeal. I emphasise that without any criticism of the judge, ground 4 has been established.

Should the applicant be re-sentenced?

1. [139]

   While the Crown accepts that lesser indicative sentences are warranted for both offences of driving whilst disqualified, the Crown argued that when regard is had to the totality of the criminal offending and the generous finding of special circumstances (reducing the non-parole period to 50% of the aggregate sentence) no lesser aggregate sentence than 8 years imprisonment with a non-parole period of 4 years is warranted.

2. [140]

   Other than the agreed facts, the Crown tendered the Form 1 documents, the applicant’s criminal history, traffic record and a sentencing assessment report.

3. [141]

   The applicant’s criminal history is extensive with terms of imprisonment having been imposed for offences of dishonesty including aggravated break and entry to commit a serious indictable offence; break and enter a building; shoplifting and other offences including driving a conveyance without the owner’s consent and for dangerous driving in a police pursuit.

4. [142]

   At the time of the offending, as the judge said, he was subject to conditional liberty being an ICO and was also subject to parole.

5. [143]

   The author of the sentencing assessment report recorded that the applicant had struggled with drug addiction issues from the age of fifteen, despite receiving treatment through the opiate treatment program. The applicant had reported the motivating factor for stealing high end items was to support his $600 a day heroin addiction combined with Zanax and methylamphetamines. The applicant was assessed at a Tier 2 Medium/High risk of reoffending.

6. [144]

   The written material tendered on the applicant’s behalf included the Allnutt report; Youssef Elali’s affidavit sworn 16 November 2023 and a report prepared by Navin Goonniah, a psychologist. Mr Goonniah was of the opinion that the applicant’s symptoms at the time of the offending met the criteria for Anti-Social Personality Disorder, Post-Traumatic Stress Disorder, Substance Abuse Disorder, Adult Attention Deficit Disorder and Oppositional Defiant Disorder and Borderline Personality Disorder. Mr Goonniah opined that the applicant was suffering from mental health impairments for which treatment was available in a mental health facility.

7. [145]

   The applicant gave evidence before the judge. He confirmed that he had been using heroin since he was 21, and had been on methadone for the past six or seven years. He was also using methylamphetamine. He related that at the time he committed the offences in June and July 2021 he was using drugs.

8. [146]

   The applicant said that prior to his offending in November and December 2021, he had been stabbed in the back by his partner and he became homeless, living in his car. He was using drugs. He stole to sell the stolen items for cash and drugs.

9. [147]

   The applicant said he was sorry for the impact caused to the victims of his offending.

10. [148]

    A letter from the applicant was also tendered in which he expressed his regret for the offences; his change of attitude and his confidence in the future with the support of his brothers and sisters who live in Victoria.

11. [149]

    The judge’s findings on the objective seriousness of the offences were not challenged by the applicant or the Crown. The judge observed that the value of the jewellery stolen from the jewellery stores was not insignificant but were “not the most spectacular amounts”. [14] His Honour noted that the applicant seemed to be a leader in relation to the conduct of others. [15]

12. [150]

    As to the police pursuit on 29 December 2021, his Honour observed that the applicant was a disqualified driver and was driving the stolen Mercedes. His distance of pursuit was about 5.4 kms. His Honour noted the aggravating features of brake checking, unheralded turns, swerving, the extent to which he was above the speed limit, as well as his conduct towards the following cars and noted that this was in a suburban street or series of streets with the real possibility of other cars and other people coming upon them. [16]

13. [151]

    As to the offence of entering the building with intent to commit an indictable offence, his Honour said that it was not surprising that the two elderly victims at the premises on Victoria Road disclosed to the police that they were fearful for their safety due to what had occurred and the manner in which it had occurred and from the offender asking them to “hide him inside the house”. [17]

14. [152]

    Other findings that the judge made that were not challenged include:

15. [153]

    The applicant tendered on re-sentence an affidavit of Ms Howard affirmed on 14 November 2024, which annexed emails from his brother, Isaac Elali, and sister, Hanna Elali.

16. [154]

    In his email, Isaac refers to the applicant’s sexual abuse at Reiby and highlights the impact this trauma had upon his brother. He refers to the applicant’s significant remorse and genuine desire to change. He confirms his commitment to help his brother reintegrate into society.

17. [155]

    In her email, Hanna refers to the applicant’s genuine remorse and that the burden of incarceration has weighed heavily upon him, cutting him off from his daughter and family members. Hanna asks this Court to see her brother’s potential for rehabilitation and transformation.

18. [156]

    The Crown tendered on re-sentence an affidavit of Ms Gadsby, a solicitor in the Office of the Director of Public Prosecutions. The affidavit annexes the applicant’s custodial history and copies of misconduct reports for correctional offences on 10 March 2024, 4 August 2024 and 5 August 2024.

Re-sentence

1. [157]

   The applicant is now 39 years of age. He was born in November 1985 and was aged 35 to 36 years old at the time of the offences.

2. [158]

   The findings made by the judge [149]-[152] are well founded and I will adopt them in re-sentencing the applicant.

3. [159]

   I should also mention that the offences of break and enter are serious offences. The property the applicant stole from the residence at St Clair on 25 November 2021 amounted to a value of about $12,650 and has not been recovered. On 27 December 2021, after gaining entry to the Cars 24 site, the applicant stole a Mercedes GLA 250.

4. [160]

   The material contained in the affidavits tendered on re-sentence does not persuade me to take a more positive view on the applicant’s prospects of rehabilitation. The progress that the applicant has made in custody as a hard working sweeper is diminished by the correctional centre offences in March and August 2024. An assessment of the applicant’s prospects of rehabilitation and the likelihood of re-offending remains uncertain and is dependent upon his ability to overcome his prohibited drug use upon release.

5. [161]

   I am satisfied on the balance of probabilities that the applicant was both physically and sexually assaulted at Reiby. I accept Dr Allnutt’s opinion that this abuse aggravated his antisocial personality disorder and substance abuse disorder and contributed to his post traumatic and depressive symptoms. In my view, there is a causal link between the applicant’s mental conditions and his offending. The applicant’s moral culpability is reduced and I give less weight to general deterrence, retribution and denunciation: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. I am not satisfied that the need for specific deterrence is eliminated, having regard to the applicant’s history of offending, the commission of the offences whilst subject to conditional liberty and his guarded prospects of rehabilitation and re-offending.

6. [162]

   In assessing the indicative sentences, I have fixed an appropriate sentence for each offence. Critical to the sentence is the principle of totality which requires that the aggregate sentence must be “just and appropriate”: Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26.

7. [163]

   The following table discloses the sentences that would have been imposed but for the aggregate sentence after the 25% discount has been applied: s 53A(2)(b) Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSP Act”):

8. [164]

   I have reduced the aggregate head sentence and found special circumstances for the reasons expressed by the judge. The ratio between the head sentence and non-parole period of 50% has been maintained.

Orders

1. [165]

   The orders I propose are:

   1. (1)

      Leave to appeal against conviction for the offence of entering a building on 30 December 2021 with intent to commit an indictable offence contrary to s 114(1)(d) of the Crimes Act 1900 (NSW) is granted.

   2. (2)

      Appeal against conviction dismissed.

   3. (3)

      Leave to appeal against sentence granted.

   4. (4)

      Appeal against sentence allowed.

   5. (5)

      Quash the aggregate sentence imposed in the District Court on 21 November 2023.

   6. (6)

      In lieu thereof, sentence the applicant to an aggregate term of imprisonment of 7 years and 6 months consisting of a non-parole period of 3 years and 9 months commencing on 20 March 2022 and expiring on 19 December 2025 with a balance of term of 3 years and 9 months commencing on 20 December 2025 and expiring on 19 September 2029.

   7. (7)

      The earliest date the applicant will be eligible to be released on parole is 19 December 2025.

2. [166]

   IERACE J: I agree with Price AJA.

3. [167]

   McNAUGHTON J: I agree with Price AJA.