Sabongi v R

1. [1]

   HOEBEN CJ at CL: I agree with Hamill J.

2. [2]

   JOHNSON J: I agree with Hamill J.

3. [3]

   HAMILL J: Raymond Sabongi (“the applicant”) seeks leave to appeal against sentences imposed on him in the District Court by Judge Hoy SC on 7 March 2014.

The charges and sentences imposed

1. [4]

   The sentences followed the applicant’s plea of guilty to four counts on an indictment relating to offences committed in the central business district of Sydney over a thirty minute period late on the evening of 3 July 2010 (“the 2010 offences”). Judge Hoy SC also sentenced the applicant in relation to five domestic violence offences committed between June 2007 and March 2008 (“the domestic violence offences”). Sentencing for the domestic violence offences arose because the 2010 offences constituted a breach of a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Act”). That bond had been imposed by the Local Court in relation to the domestic violence offences. Judge Hoy SC determined that the good behaviour bond should be revoked under s 98(2)(c) of the Act. A faint submission that his Honour might properly have taken no action on the breach was not pressed.

2. [5]

   There was a substantial passage of time between the offences – in particular the domestic violence offences – and the imposition of sentence. The delay is a matter of some significance and was emphasised in the applicant’s submissions.

3. [6]

   The offences for which the applicant stood to be sentenced were, first, the four offences committed on the evening of 3 July 2010:

4. [7]

   Then there were the five domestic violence offences:

5. [8]

   The domestic violence offences were dealt with in the Local Court. The common assault charges (Sequence 5, 10 and 13) had a maximum penalty of two years if dealt with on indictment (s 61 Crimes Act) but (at that time) there was a jurisdictional limit of 12 months if dealt with summarily. Sequences 2 and 11 were subject to a maximum penalty of 5 years (s 59 Crimes Act) and a jurisdictional limit of 2 years. As to the jurisdictional limit, see s 268 Criminal Procedure Act 1986 (NSW). The maximum accumulated penalty for matters dealt with summarily is 5 years: s 58 Crimes (Sentencing Procedure) Act.

6. [9]

   Giving full weight to the youth of the applicant and his lack of prior convictions, it was appropriate for the Magistrate to impose a bond for the domestic violence offences. However, in view of their seriousness, it was a lenient disposition of the case. The bond commenced on 5 December 2008 and was due to expire on 4 December 2010, five months after the commission of the 2010 offences.

7. [10]

   Associated with the domestic violence offences, there was also a stalking charge in relation to the same victim. This was disposed of at the same time and the applicant was sentenced in the Local Court to a period of community service. On 14 February 2014 the District Court quashed the community service order and imposed a $1000 fine. Except for its relevance as part of the applicant’s criminal history for offences of violence, that penalty has no further relevance to the current proceedings.

8. [11]

   For all of these offences the learned sentencing Judge imposed a total effective sentence of 8 years with a total effective non-parole period of 6 years. This was achieved through individual sentences relating to each of the offences partially accumulated and partially concurrent. All offences attracted a fixed term sentence with the exception of count 7 where a non-parole period was specified. The domestic violence offences attracted a total effective fixed term of 18 months, 6 months of which was subsumed by the sentence imposed in relation to the remaining accounts. In other words, there was an accumulation of 12 months between the two sets of offences.

9. [12]

   The following individual sentences were imposed:

10. [13]

    The commencement dates of the sentences were adjusted immediately after sentence was imposed when the parties brought to his Honour’s attention the fact that the applicant had spent 9 days in custody from the date of his arrest until the date of his release to bail (14 July 2010 to 23 July 2010).

The Facts

1. [14]

   The facts were largely agreed. Exhibit B was a document entitled “Crown Facts” and, with one exception, these facts were not disputed. However, the one exception was a matter of significance and was emphasised in the submissions of counsel for the applicant.

2. [15]

   The agreed facts were as follows:

3. [16]

   In spite of a recorded interview in which the applicant gave an entirely different account of the events, the only disputed fact concerned the prosecution’s assertion that it was the applicant who wielded the bottle that caused the injuries to the victim Ryan Riley. This was relevant to count 7. The prosecution relied upon the applicant’s conduct in the time leading up to Mr Riley’s injury showing him to be the most aggressive party present as well as a description given by a witness at the scene. It also relied upon the fact that two members of the applicant’s group (Mitchell Temaipi and Gildo Zenairi) denied that they were responsible for wielding the bottle. Both Mr Temaipi and Mr Zenairi had been dealt with for different offences and in separate sentencing proceedings.

4. [17]

   It was clear, and agreed between the parties, that it was not the applicant who brought the bottle into the fight. Rather, one of the victim’s group (Evan Hill) brought the bottle into the fight.

5. [18]

   The applicant’s case was that he did not use the bottle. In his electronically recorded interview on 21 December 2010, the applicant nominated Mitchell Temaipi as the person who used the bottle. The applicant said that he had not specifically seen this but that Temaipi later told him that he was responsible. Temaipi denied that he used the bottle and (in his own sentencing proceedings) was sentenced on the basis that it was the applicant who did so. The factual basis upon which Temaipi was sentenced had no relevance to the resolution of the factual dispute between the parties in the applicant’s sentencing proceedings. The applicant had also signed a statement on 21 December 2010 indicating his willingness to give evidence that it was Temaipi who had wielded the bottle. Clearly, the prosecution did not accept that this was an honest account.

6. [19]

   It is unnecessary to go into further detail of the evidence and submissions made in relation to this factual dispute. The learned sentencing Judge resolved the issue in favour of the applicant in a judgment published on 10 December 2013. His Honour correctly applied the onus and standard of proof to the evidence with which he was confronted. He commented that suspicion was insufficient, no matter how grave, and determined that he could not be satisfied beyond reasonable doubt that it was the applicant who used the bottle causing the devastating injuries to Ryan Riley. The applicant’s plea of guilty to count 7 (recklessly causing grievous bodily harm to Ryan Riley) was based upon principles of common purpose or joint criminal enterprise. In other words, he was sentenced on the basis that he was criminally responsible for the injuries to Ryan Riley, whoever had directly caused them, on the basis of his involvement in the series of violent incidents that resulted in those injuries.

7. [20]

   In addition to the agreed statement of facts and the material received in the hearing directed towards the resolution of that factual dispute, the learned sentencing Judge also received medical and other expert evidence relating to the injuries suffered by Ryan Riley and a victim impact statement which set out the impact of the injury upon Mr Riley and his life. The victim impact statement was prepared by Mr Riley’s mother because Mr Riley’s brain injury made it impossible for him to prepare such a document for himself. The victim impact statement was in the following terms:

8. [21]

   The offending in relation to those four offences occurred over a relatively short period of time. The incident outside of Capitan Torres occurred at 11:30 PM whereas the incident involving the affray and the awful injuries to Mr Riley occurred at around midnight. However, they were two separate incidents of violence. They were alcohol fuelled. The applicant was the major aggressor in relation to each of the incidents. The victims in each instance were doing no more than attempting to enjoy the night-life of Sydney when confronted with the applicant’s outrageous and aggressive behaviour.

9. [22]

   This type of conduct, which is to say alcohol fuelled and random acts of aggression by young men in the central business district of Sydney, has been subject to much commentary both in the media and in recent decisions of this court: see for example R v Loveridge [2014] NSWCCA 120 at [102]; Pattalis v R [2013] NSWCCA 171 at [23]; AI v R [2011] NSWCCA 95 at [69]; MB v R [2013] NSWCCA 254 at [27]; R v Carroll; Carroll v R [2010] NSWCCA 55; Hopley v R [2008] NSWCCA 105; R v Gallagher [2007] NSWCCA 296 at [29]. It is clear that the community expects that such acts of violence will be met with significant punishment, particularly where death or (as in this case) really serious injury is occasioned to an innocent victim.

10. [23]

    The applicant does not contest the sentencing Judge’s summary of the facts of the domestic violence offences:

11. [24]

    The sentencing Judge described these facts as serious acts of cowardly violence over a continuous and extended period. There is nothing to gainsay Judge Hoy SC’s description of that offending. It is entirely apt.

Subjective and Mitigating features

1. [25]

   The applicant pleaded guilty to each of the offences. The discount allowed by the sentencing Judge (12.5%) is the subject of one of the supplementary grounds of appeal (Ground 5).

2. [26]

   On a personal level the applicant relied on the contents of a presentence report which described him as:

3. [27]

   “a quiet and thoughtful young man who seems well aware of the seriousness of the subject proceedings and of the possible outcome for himself. To his credit, he appears to have had some insight in regard to his offending behaviour and has addressed those issues that led to the committal of the offences. It is noted that [the applicant] maintains the support of his partner, his mother and his employer.”

4. [28]

   The report had earlier described his family and social circumstances and his education and employment. At the time of sentence, the applicant was 28 years of age and was living with his fiancée with whom he apparently had a loving and supportive relationship. She remained supportive throughout the process. The applicant was born in Australia and moved to Lebanon when he was around 1 year of age. His parents often argued and he returned to Australia with his mother when he was aged around 4-5. His father returned to Australia a few years later and the marriage between his parents never fully reconciled. The applicant was not close to his father but maintained a supportive and close relationship with his mother.

5. [29]

   The applicant achieved his Higher School Certificate and commenced a Diploma in Construction at TAFE. He did not finish the course at TAFE but in 2013 completed his diploma at a private training institute. At the time of sentence he was eligible to apply for a builder’s licence. He had been employed in the building industry for some time prior to sentence as a foreman and project manager. His employer confirmed this information.

6. [30]

   A reference was tendered from a family friend (George Sedhom) who said that the applicant had very strong family values and work ethic as well as being adaptable and possessing leadership attributes. Reference was made to his representing both Penshurst Marist College and Kogarah Marist High School at the highest level in athletics and rugby league. The family friend described a significant change in the applicant over the 3 years since the 2010 offences and noted that he “has removed all bad elements from his lifestyle, and has purely been devoted to his family, his career, and his fiancée Maryann.”

7. [31]

   His uncle (Mr Matar) gave evidence in the sentencing proceedings that accorded with the reference of Mr Sedhom. Each noted a significant change in the applicant over the previous several years. Mr Matar was candid when he said that he offered the applicant work basically because he was his nephew. However, having employed him, he observed the applicant at close quarters and was very positive in asserting that the applicant was “a changed man”. Mr Matar also gave evidence that the applicant had demonstrated a problem with alcohol in his late teenage years this. His opinion was that the offences were out of character for the man he knew but agreed with the applicant’s own assessment that he deserved punishment. Mr Matar said that he would be there to support the applicant upon his ultimate release from jail.

8. [32]

   A builder (Robert Dale) gave evidence. He was aware of the history of offending which he described as “disturbing and very disgusting” but was of the opinion that the applicant was a “changed man”. The applicant was working for his company as its “one and only site foreman” and he was so impressed by the applicant that he told the Court that he would provide him with a job upon his release from jail provided that he was still in business. He had observed the applicant’s relationship with his current fiancée and described it in positive terms.

9. [33]

   As I have said, reliance has been placed in on the lengthy effluxion of time between the offending and the sentencing proceedings. The sentence proceedings occurred more than 6 years after the domestic violence offences and more than 3 years after the offences which occurred in July 2010. During that period of time, the applicant had complied with the conditions of the bond until the serious breach on 3 July 2010 and complied with his bail conditions from the 13 July 2010 until bail was revoked on 14 February 2013.

10. [34]

    While the sentencing Judge observed that the applicant was “not assisted by his criminal record”, his Honour was referring to the domestic violence offences. Apart from the matters for which the was to be sentenced, the only other offences on his record were a traffic offence in 2013 (not give way when entering a round-about) and a very minor offence in 2008 which attracted a $200 fine.

Parity

1. [35]

   There was no ground of appeal asserting that the disparity between the sentences imposed on the applicant and those imposed on Temaipi and Zenari would justify intervention by this Court. While some of the submissions hinted at such a ground, and used the language of “grievance” (see Lowe v The Queen [1984] HCA 46; 154 CLR 606) the differences in the charges faced by the three men and their vastly different roles and cases means that there is no merit in the suggestion that the sentence infringed principles of equal justice. Counsel who appeared before the primary judge acknowledged that the cases were so different that parity of sentencing had little or no role to play.

The grounds of appeal

1. [36]

   Submissions in support of a single ground of appeal were initially filed on behalf of the applicant under the hand of experienced senior counsel. That ground of appeal was in the following terms:

2. [37]

   No oral arguments were addressed to ground 1 but it was adequately addressed in the written submissions.

3. [38]

   A short time before the hearing of the appeal, the applicant changed legal representatives and on 6 February 2015 a document styled supplementary grounds of appeal was filed. On 9 February 2015 substantial written submissions were filed in support of those additional grounds. The additional grounds of appeal are in the following terms:

4. [39]

   There is some overlap between a number of the applicant’s contentions and grounds of appeal. However, it is convenient to deal with the grounds separately. I will deal with the supplementary grounds and then return to the ground that was originally filed.

Ground 2

1. [40]

   There are at least two propositions rolled up in this ground of appeal. The first is that the effective sentences imposed in relation to the two separate offences were excessive because the Judge erred in his treatment of the breach of the bond. The second is that the Judge erred in his approach to the accumulation of the individual sentences.

2. [41]

   As to the first proposition, there is no patent error disclosed in the judgment on sentence. His Honour’s remarks on the relevance of the breach of the bond were orthodox and legally correct. He treated the breach of bond as an aggravating feature of the 2010 offences. This accords with principles of common law and with s 21A(2)(j) of the Act. His Honour specifically and correctly eschewed the suggestion that the breach of bond should lead to a greater sentence in relation to the domestic violence offences when he said:

3. [42]

   In context, the reference to the “present offences” was a reference to the domestic violence offences.

4. [43]

   As to the second proposition, questions of the degree of accumulation and concurrency are matters that fall squarely within the discretionary judgment of the sentencing Judge: see, for example, R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 at [7] (Simpson J). In Johnson v The Queen [2004] HCA 15; 205 ALR 346; 78 ALJR 616 the Gummow, Callinan and Heydon JJ said at [26]:

5. [44]

   In the absence of any identifiable error of principle in the judgment, it is necessary to consider the sentences actually imposed. The total sentence for the domestic violence offence (18 months) is a severe one for a first time offender of the applicant’s age. However, the offending was very serious and repeated over an extended period of time. Offences of domestic violence must be denounced by the Courts in order to send a clear message to the community that they cannot be tolerated: see for example, R v Edigarov [2001] NSWCCA 436 at [41]; R v Hamid [2006] NSWCCA 302 at [64]ff; R v Mahon [2015] NSWSC 25 at [102-103]; R v Johnson [2015] NSWSC 31 at [62].

6. [45]

   While I will further consider the sentence and non-parole period in considering grounds 1 and 7, I would otherwise reject ground 2.

Ground 3

1. [46]

   In written submissions, the applicant contended that the learned sentencing Judge failed properly to consider whether or not he might have taken no action on the breach of the bond and failed to consider whether any sentence apart from a full-time custodial sentence was appropriate in relation to the domestic violence offences. It was submitted, for example, that “one available option for his Honour was the imposition of a fine”. It was further put in the written submissions that “the use of fines as a sentencing option in respect of the bond matters would not interfere with the appellant serving any sentence of imprisonment for the indictment matters”. The submission continued that fines would be an appropriate option. A number of reasons were given for that contention. It was accepted, as I understand the submission, that no other sentencing option (for example community service, suspension of sentence or home detention) was either appropriate or even technically available due to the fact that a full-time custodial sentence was the inevitable outcome of the sentencing for the 2010 matters.

2. [47]

   Experienced counsel who appeared for the applicant on sentence conceded that a custodial sentence was the only available sentencing option. In view of the seriousness of the offences and the fact that the only options were a fine or a full time gaol sentence, the concession was a sound one. The learned sentencing Judge plainly, if implicitly, accepted and acted on the concession that the only appropriate sentence was one of full-time custody. There is no error in having accepted that concession.

3. [48]

   In argument, Mr Glissan QC appeared to retreat from the suggestion that it would have been appropriate for the sentencing Judge to take no action on the breach or to impose a fine. Rather he suggested that a “short sharp sentence” may be appropriate.

4. [49]

   The submissions under ground 3, and the ground itself, are without merit. For one thing, they seem to disregard the savage and sustained nature of the domestic violence encompassed in those matters originally dealt with by way of a bond. It is true that by the time of the breach proceedings they were relatively stale offences. It is also true that the matters were dealt with in the Local Court as a result of an election by the prosecutor. Neither of those matters, nor anything raised in the written submissions of the applicant, justify the disposition of those matters by way of the imposition of a fine or a discretionary decision to take no action on the breach.

5. [50]

   Ground 3 must be rejected.

Ground 4

1. [51]

   The contention under this ground is that once the learned sentencing Judge resolved the factual dispute in relation to who struck Mr Riley with the bottle in favour of the applicant, it was not open to find that he was the “principal offender”. That submission appears to suggest that the only party that could properly be described as the principal offender was the person wielding the bottle. This is not correct. The sentencing Judge was extremely careful to make it clear that the applicant was being sentenced on the basis of his involvement in a joint criminal enterprise in which major injuries were occasioned to the victim but in circumstances where it could not be established to the necessary standard who had wielded the bottle. However, the sentencing Judge also noted that the offender appeared to be the initiator of the violence which was described as random and unprovoked. His remarks on sentence described the applicant as the “principal protagonist in all these incidents. He initiated the attacks. He was very provocative spreading a rampage of violence upon innocent victims.”

2. [52]

   Earlier, in accepting a concession that parity with the co-offenders had little (or no) part to play, the sentencing Judge correctly identified the fact that the applicant’s position was far more serious than that of his co-offenders due to the nature of the charges with which they were sentenced and their involvement being “to a lesser degree”.

3. [53]

   Nothing in the remarks on sentence suggests that his Honour sentenced the applicant on the basis that he hit Mr Riley in the head with the bottle. However, the applicant pleaded guilty to an offence whereby he accepted criminal responsibility for the injuries that had been occasioned to Mr Riley. Those injuries were extreme in their nature and have left Mr Riley with a seriously diminished quality of life. The victim impact statement read by his mother provided eloquent testimony to this. The descriptions of the applicant as the initiator of the violence, as the provocateur and principal protagonist were all justified by the agreed facts which were not disputed either at first instance or on the hearing of this appeal. Had the applicant not instigated the initial fight that led to the fracas and the introduction (by somebody else) of the bottle, Mr Riley would not have suffered the injuries which he did.

4. [54]

   The submissions made under this ground bordered on a traversal of the plea of guilty, but Mr Glissan QC was quick to indicate that that was not the intention of the submission.

5. [55]

   In my opinion there is no error in the approach adopted by the learned sentencing Judge and the plea of guilty to the charge under s 35 was well justified by the material available to both the defence and prosecution. I would reject ground 4.

Ground 5

1. [56]

   In the proceedings before the primary Judge there was a dispute as to the discount that was appropriate for the utilitarian value of the plea of guilty. Counsel for the applicant submitted that the discount should be in the “region of 10 to 15%”. Counsel for the prosecution submitted that “5% would have to be their maximum”. In written submissions the learned Crown Prosecutor submitted that there “should be little if any discount for the plea”. Judge Hoy SC provided a discount of 12.5%.

2. [57]

   In spite of the submission by counsel at first instance, the applicant seeks to persuade this Court that the exercise of discretionary judgment which resulted in the 12.5% reduction was vitiated by error. That submission must be rejected.

3. [58]

   The offences were committed on 3 July 2010 and the applicant was charged on 14 July 2010. The plea of guilty was not entered until 27 July 2013, which is to say more than 3 years after he was charged. In the meantime, the applicant had been committed to stand trial and a trial of the offences had been listed and commenced. A jury was discharged whereupon a further trial date was set. A trial listed in April 2013 was vacated and yet a further trial date was set in July 2013 with a direction from the Chief Judge that the matter must proceed. It was on the day that the third trial was listed that the applicant entered his plea of guilty.

4. [59]

   Counsel at first instance explained this delay on the basis of the applicant’s lack of understanding of the concept of joint criminal enterprise and common purpose. Such a lack of understanding does not increase the utilitarian value of a plea of guilty.

5. [60]

   The features which are pertinent to an assessment of the appropriate discount for the plea are essentially (i) the timing of the plea and (ii) the complexity of the issues about which evidence will have to be gathered and reduced. The greater the length and complexity of the trial the greater the utilitarian value of the plea: See R v Thompson and Houlton [2000] NSWCCA 309 at [154] (Spigelman CJ).

6. [61]

   On the hearing of the appeal, Queen’s Counsel attempted to persuade the Court that this was a matter of great complexity as a result of the engagement of those principles relating to joint criminal enterprise. I do not accept that the matter was particularly complex. In any event, the evidence which needed to be gathered to establish the applicant’s guilt was not evidence of much complexity. Directions of law may have had a degree of complexity but the complexity would not have greatly increased the length of the trial. The trial proceedings would not have been particularly lengthy.

7. [62]

   Clearly the complexity of the issues was a matter that led the learned sentencing Judge to reject the Crown’s submission at first instance and to provide the applicant with a 12.5% discount. It could not have been the timing of the plea. The timing of the plea was such that the Crown was justified in making the submissions that had been made at first instance, albeit that the learned sentencing Judge was justified in taking a more generous approach in the exercise of discretion.

8. [63]

   Parts of the submissions on this ground tended to suggest that the applicant was submitting that the difficulties that the Crown may have had in proving its case were matters which affected the utilitarian value of the plea. That submission was specifically, and correctly, eschewed when counsel was confronted with it on the hearing of the appeal. The strength of a prosecution case is not a matter properly to be taken into account in assessing the utilitarian value of the plea of guilty: see R v Thompson and Houlton at [137] see also R v Borkowski [2009] NSWCCA 102 at [32]; R v Sutton [2004] NSWCCA 225 at [12].

9. [64]

   I would reject ground 5.

Ground 6

1. [65]

   The terms of this ground itself demonstrate the difficulties which attend its success. The weight to be given to an offender’s subjective or personal circumstances was a matter entrusted to the sentencing Judge. There is nothing in Judge Hoy SC’s careful remarks in sentencing the applicant to suggest that he failed to take these relevant matters into account, that he mistook the facts or that he took into account extraneous considerations so as to attract appellant interference with the exercise of a discretionary judgement: House v The King [1936] HCA 40; 55 CLR 499 at [55].

2. [66]

   I would not uphold this ground of appeal. However the “time-lapse” between the offences and the sentences and the applicant’s good conduct and “restricted freedom” are matters of significance to the appropriate outcome of this appeal. The delay may be a factor going to special circumstance and to the length of the non-parole period: see R v EGC [2005] NSWCCA 392 at [38] (Latham J).

Grounds 1 and 7

1. [67]

   I have found no error in relation to grounds 2-6 but before dealing with ground 7 and the ultimate question that arises under s 6(3) of the Criminal Appeal Act 1912 (NSW), I will address the ground and submission originally filed on the applicant’s behalf.

2. [68]

   As to the reference in ground 7 to “the overall assessment of the total criminality of the offender” I should refer to the decision of this Court in Mulato v R [2006] NSWCCA 282 where Spigelman CJ said at [37]:

3. [69]

   Simpson J “emphatically agreed” with those comments and added at [46]:

4. [70]

   In Kaminic v R [2014] NSWCCA 116 at [79]-[89] I expressed reservations about the authority of Mulato v R [2006] NSWCCA 282 in light of the observations of the High Court in Carroll v The Queen [2009] HCA 13; 83 ALJR 579 at [24]: see also Carroll v The Queen [2010] NSWCCA 55; 77 NSWLR 45 at [57] per Allsop P and Johnson J and MH v R [2011] NSWCCA 230 per RS Hulme at [43]-[44] (cf Campbell JA at [2] and Hoeben J at [75]).

5. [71]

   The majority in Kaminic v R (Ward JA and Fullerton J) applied Mulato v R with Ward JA observing that the comments of the High Court in Carroll v The Queen were dicta. Mulato v R (and the majority approach in Kaminic v R) has been applied in subsequent cases: see, for example, Stoeski v R [2014] NSWCCA 161 at [46] (Adamson J); Khanchitanon v R [2014] NSWCCA 204 at [24] (Adamson J). There was no appeal to the High Court from the decision in Kaminic v R and on Friday 13 February 2015 special leave to appeal was refused in Stoeski v R [2015] HCATrans 19.

6. [72]

   Accordingly, I consider the questions that I raised in Kaminic to be resolved. The observations of Spigelman CJ and Simpson J in Mulato should be applied in New South Wales. In the present case, Judge Hoy SC found that the offence of recklessly inflicting grievous bodily harm fell “at about the middle range of objective seriousness”. He also made a reasoned assessment of the totality of the criminality involved in both sets of offences. There was nothing in the judgment to suggest that he fell into “House error” and his assessment of the objective criminality of the offences was open to him in the exercise of discretionary judgment.

7. [73]

   I now turn to Ground 1, the question of special circumstances and length of the non-parole period. The learned sentencing Judge imposed fixed terms in relation to all of the offences with the exception of the most serious offence being the offence of recklessly inflicting grievous bodily harm (count 7). In accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW), his Honour identified the reason for imposing fixed terms:

8. [74]

   This is an orthodox approach to sentencing for multiple offences.

9. [75]

   His Honour was invited to find special circumstances pursuant to s 44(2). Written submissions for the applicant merely contended “a finding of special circumstances is available.” The following is a recorded argument on 14 February 2014:

10. [76]

    As was put in argument, his Honour did not receive a great deal of assistance on this and a number of other issues. Counsel did not address the question of whether the accumulation of sentences in itself would constitute special circumstances or address any submissions to the relevance of the extensive delay and periods of rehabilitation to the question of special circumstances. Where an offender seeks a finding of special circumstances, it is important that their legal representative say so in clear terms and identify those circumstances which are said to be relevantly “special”.

11. [77]

    His Honour made a finding of special circumstances and having identified certain matters in the course of argument, also identified the fact of the accumulation as a matter relevant to that question. His Honours judgment includes the following at [19]:

12. [78]

    Another matter that clearly pointed in the direction of a finding of special circumstances was the passage of time between the offences and the sentence hearing and the periods during which the offender had complied with the terms of the bond and bail. In R v ECG, Latham J rejected a submission that delay, of itself, warranted intervention. However, her Honour went on to observe at [38]:

13. [79]

    In the present case, the sentencing Judge did make an adjustment to the “statutory ratio” when he imposed the non-parole period in relation to count 7. There was no occasion to make any adjustment with respect to the other sentences as fixed terms were imposed in relation to them. However, the complaint under ground 1 is that, in spite of the finding of special circumstances and the fact that the matter identified went beyond the circumstance of accumulation of sentences, the total effective sentence was in accordance with the “statutory ratio”. That is to say, the non-parole period (6 years) was precisely 75% of the total effective sentence (8 years).

14. [80]

    Similar grounds of appeal have been raised in a number of cases: see for example: R v LWP [2003] NSWCCA 215; R v Thornberry [2000] NSWCCA 526; R v Keen [2004] NSWCCA 86; R v Street [2005] NSWCCA 139; R v Heron v R [2006] NSWCCA 215; CM v R [2013] NSWCCA 341; AB v R [2014] NSWCCA 31; Houri v R [2013] NSWCCA 279; Fina’i v R [2006] NSWCCA 134.

15. [81]

    As RA Hulme J observed in CM v R at [40]:

16. [82]

    Where a sentencing Judge makes clear that they are aware that the total sentence is in accordance with the “statutory ratio”, it is rare that this Court would intervene. In Houri v R the court declined to intervene in a case where an adjustment in respect of one sentence resulted in a sentence wherein the non-parole period was marginally greater than 75% of the overall term. R A Hulme J said at [34]:

17. [83]

    Similarly in AB v R the Court declined to intervene when the sole basis of the finding of special circumstances was “by reason of the accumulation of sentences”.

18. [84]

    Conversely, in cases where the finding of special circumstances was more broadly based then the accumulation itself and where the sentencing Judge has not clearly indicated their awareness of the fact that the total effective sentence will remain in accordance with (or close to) the “statutory norm” the court has intervened: see R v LWP; R v Thornberry; R v Keen; R v Street; R v Heron v R; M v R.

19. [85]

    In the present case, the respondent relies upon the fact that the learned sentencing Judge, in explaining the sentence to the applicant, identified the precise effect of the total effective sentence and non-parole period. After imposing sentence his Honour said:

20. [86]

    I accept the respondent’s submission that the reference to the “main sentence” is a reference to the sentence on count 7. However, contrary to a submission made orally, the sentencing Judge did not state that “the effective total non-parole period would be 75% of the total sentence”. At no stage did the sentencing Judge make clear that his intention was to impose a total sentence whereby the non-parole period would be 75% of the total sentence. His Honour did not indicate that his purpose in finding special circumstances was merely to reinstate the statutory proportions pursuant to s 44 of the Act.

21. [87]

    This case falls between the extremes represented by cases where there is no acknowledgement by the sentencing Judge of the total effect of the sentence and, on the other hand, those cases where the finding of special circumstances were based entirely on the accumulation or where the sentencing Judge specifically says that they are aware that the impact of the adjustment will result in the normal “statutory ratio” between the non-parole period and the overall sentence.

22. [88]

    Whilst it is clear that the learned sentencing Judge was aware of the total effective non-parole period and total effective overall sentence, nowhere in the Judgement on sentence, the transcript of the submissions or the explanation to the applicant of the impact of the sentence after sentence was imposed did his Honour make plain that he fully intended and was aware that the adjustment to the non-parole period on count 7 would achieve no more than resulting in the applicant spending 75% of the total sentence in custody.

23. [89]

    In coming to a final conclusion, it is significant that the finding of special circumstances was not based solely upon the accumulation. His Honour referred to the “need for extended rehabilitation”, the fact that it was the offender’s first time in custody and his “relatively young age”. It was after referring to those matters that his Honour said that “accumulation of sentences may also be regarded as a special circumstance.”

24. [90]

    As James J held in Cicekdag v R [2007] NSWCCA 218 at [46-49]

25. [91]

    In spite of the learned sentencing Judge clearly articulating the numerical results of the partial accumulation in explaining the sentence to the applicant, I have come to the conclusion that the sentencing discretion miscarried. The finding of special circumstances, based as it was around important subjective matters such as the applicant’s extended need for rehabilitation in the community, ought to have sounded in a somewhat greater adjustment to the proportion between the non-parole period and the total effective sentence. Having said that, the offences were of such seriousness both individually and in their cumulative effect that any adjustment downwards must be a modest one.

26. [92]

    The need for the applicant to have an extended period of supervised parole was highlighted by the things that had transpired in the course of the period of time between the domestic violence offences and the sentencing hearing. As Judge Hoy SC pointed out in his judgment on sentence, he had remained of good behaviour during much of that period, with the exception of the 2010 offences all of which occurred in the course of one hour. The learned sentencing Judge pointed out that “one can be forgiven for thinking that this [period of good behaviour] is because it has been imposed by the court”. His Honour was there referring to the fact that the applicant had been on the bond imposed by the Local Court and then on stringent bail conditions. As the learned sentencing Judge impliedly or implicitly recognised, this was a matter that justified an extended period on parole.

27. [93]

    For those reasons, I have reached the conclusion that ground 1 should be upheld.

Section 6(3) and re-sentencing

1. [94]

   Having come to the conclusion that the sentencing discretion miscarried in this way, it is necessary to consider whether a different, less severe, sentence is warranted and ought to be imposed: s 6(3) Criminal Appeal Act 1912 (NSW). In doing so, I take into account the evidence submitted by the applicant “on the usual basis”, that is to be considered only on the question of re-sentencing if error was established. This material came in the form of a bundle of documents produced by the Department of Corrective Services under a freedom of information request. A good deal of the material tendered is not relevant but the following entries might properly inform the appropriate length of the sentence:

2. [95]

   Even taking this promising material into account, I am unable to conclude that the total effective sentence of 8 years or the individual sentences imposed by his Honour should be disturbed. However, I am of the opinion that there should be some adjustment to the length of the non-parole period in order to provide for a longer period for the applicant to be supervised upon his eventual release from gaol. Such an outcome is beneficial, obviously enough, to the applicant but also reflects one of the purposes of punishment in s 3A namely “to promote the rehabilitation of the offender”. There is a community interest in his rehabilitation. The other purposes of punishment (adequate punishment, deterrence, protection of the community, denunciation, recognition of the harm done to the victim and making the offender accountable for his actions) are all served by the overall sentence and what will remain a lengthy period of incarceration.

3. [96]

   To achieve the outcome it is unnecessary and undesirable to interfere with the sentences imposed other than by making a further adjustment to the non-parole period imposed in relation to count 7. For the sake of clarity, my intention is that the applicant be subject to a total effective sentence of 8 years with a total effective non-parole period of 5 years and 3 months.

4. [97]

   I propose the following orders:

   1. (1)

      Application for leave to appeal granted.

   2. (2)

      Appeal allowed.

   3. (3)

      The sentences imposed in relation to sequences 10, 5, 11, 13 and 2 are confirmed.

   4. (4)

      The sentences imposed in respect of counts 1, 3 and 4 are confirmed.

   5. (5)

      The sentence imposed in respect of count 7 is quashed and in lieu thereof impose a sentence compromising a non-parole period of 3 years and 3 months commencing 5 February 2016 and expiring on 4 May 2019 with a balance of term of 2 years and 9 months commencing 5 May 2019 and expiring on 4 February 2022.

   6. (6)

      The applicant will be eligible for release to parole at the expiration of the non-parole period relating to count 7.