Baldwin v R

1. [1]

   N ADAMS CJ at CL: I agree with the orders proposed by Muston J for the reasons provided by his Honour.

2. [2]

   HAMILL J: I agree with the orders proposed by Muston J and with his Honour’s reasons for dismissing grounds 2 and 3. I also agree with his Honour’s analysis of grounds 1 and 4 subject to the following observation. The High Court has emphasised that “a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion”: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15] confirmed in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [28]. Whether I would have reached the same conclusion as the sentencing Judge in relation to the questions which arose under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”) and the determination of the length of the sentence does not affect my agreement with Muston J that the conclusion reached by the sentencing Judge, which was supported by careful and legally sound reasons, was not unreasonable, unjust or plainly wrong.

3. [3]

   MUSTON J: The applicant entered a plea of guilty to having aided or abetted the suicide of his late wife, Joanne Marie Baldwin, contrary to s 31C of the Crimes Act 1900 (NSW). The applicant was convicted in the District Court on 10 May 2024 and, on 7 November 2024, sentenced to a term of imprisonment of 18 months, to be served by way of an Intensive Correction Order. He seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to bring appeal from that sentence.

4. [4]

   Some urgency attaches to the determination of this matter. The sentence from which leave is sought to appeal expires on 6 May 2026. In these circumstances, every effort has been made to determine this matter quickly.

5. [5]

   The applicant relies on four grounds of appeal, contending that the primary Judge erred:

   1. (1)

      in finding that the threshold for imprisonment was met (Ground 1);

   2. (2)

      in declining to find that the applicant had suffered from extra-curial punishment (Ground 2);

   3. (3)

      in placing excessive weight on victim impact statements (Ground 3); and

   4. (4)

      by imposing a sentence which was manifestly excessive (Ground 4).

6. [6]

   Grounds 2 and 3 relate to specific errors which, if committed by the primary Judge, will necessarily inform any assessment of the appropriate sentence. In these circumstances, it is convenient to deal with those Grounds before returning to consider the more general complaint regarding what is said to be the excessive nature of the sentence imposed, advanced through Grounds 1 and 4. Before doing so, I will touch upon the circumstances giving rise to the applicant’s offence.

The circumstances of the offence

1. [7]

   The applicant was sentenced on the basis of agreed facts, which can be summarised briefly.

2. [8]

   At the time of the offence, the applicant was 71 years of age. The deceased was 68 years of age. The two had met in the late 1990s, while the applicant was employed in a civilian position at the New South Wales Police Academy in Goulburn. He had previously spent over two decades working as a police officer. They later married in 2002.

3. [9]

   At the time of their marriage, the applicant had one adult child from a previous relationship. The deceased had three children from a previous relationship.

4. [10]

   In early 2013, the applicant and the deceased had a falling out with the deceased’s eldest child. From that time onward, the applicant and the deceased had very little to do with the deceased’s eldest child, his wife or their children; aside from each having attended infrequent family gatherings.

5. [11]

   In mid-2020, after a series of family disputes, the deceased wrote her second child a 10-page letter outlining a series of past grievances. After receiving this letter, the deceased’s second child and her family also ceased visiting or communicating with the applicant and the deceased.

6. [12]

   By this time, the applicant and the deceased were living in the Nowra area, having moved there in late 2019. Earlier that year, the deceased’s youngest child and his wife had moved to an address in Bomaderry to take up a navy posting near Nowra. The applicant and deceased’s move into the Nowra area was financially assisted by the deceased’s youngest child and coincided with the birth of his son.

7. [13]

   In 2022, the applicant and the deceased moved into a unit in Bomaderry, which had been purchased by the deceased’s youngest child and his wife. At this time, the applicant and the deceased were looking after her youngest child’s son on a regular basis. However, tensions developed between the two couples.

8. [14]

   In early 2023, after a series of financial and social arguments, the applicant and the deceased attended the home of her youngest child with a typed document outlining a series of grievances. This meeting ended in a yelling match and the deceased’s youngest child asked the applicant and the deceased to leave.

9. [15]

   On 22 April 2023, the deceased’s youngest child sent the applicant a text message that said:

10. [16]

    This text message represented the severance of the final intact relationship between the applicant, the deceased and any of their respective children. The applicant would later tell police that it was losing contact with the deceased’s youngest son and grandson that prompted their plan to take their own lives.

11. [17]

    On 1 May 2023, the applicant sent an email to his supervisor at Transport NSW resigning from his role as a School Crossing Supervisor. He indicated that his last day in this role – which he had held for around 18 months – would be 9 July 2023. The applicant cited a proposed move to Western Australia as the reason for his resignation; this was untrue.

12. [18]

    On 13 May 2023, the applicant sent an email to Narooma Marine Rescue, indicating that he wished to leave that organisation a donation and requesting that its employees scatter his and the deceased’s ashes after their deaths at some future date.

13. [19]

    On 20 May 2023, the applicant printed off information regarding “Forensic Cleaning in Nowra” and information from the website of “Bare Funerals & Cremations”.

14. [20]

    On 5 June 2023, the applicant and the deceased signed new Wills and Powers of Attorney.

15. [21]

    On 14 June 2023, the applicant and the deceased travelled to Phillip Island in Victoria and, a week later, spent two nights at the Whale Inn in Narooma, NSW.

16. [22]

    On 30 June 2023, the applicant sold the motor vehicle used by himself and the deceased for $8000 cash, telling the buyer that he was selling it as he had a heart condition and feared he was about to lose his license; this was also untrue.

17. [23]

    On 1 July 2023, the applicant attended Bomaderry Post Office and sent numerous packages via Registered Post, regular post and International Mail. It is apparent from victim impact statements read at the sentence hearing before the primary Judge that these packages were sent by the applicant – on his own behalf and on behalf of the deceased – to family members and a friend of the deceased.

18. [24]

    On 2 July 2023 (a Sunday), the applicant sent an email to his former employer requesting that they contact Nowra Police the following day and suggest a welfare check at the address in which he and the deceased resided. In this email, the applicant said:

19. [25]

    However, at 6:47 AM the following morning, the applicant sent a further email to his former employer telling them to disregard his earlier message and stating that:

20. [26]

    Immediately after sending this message, the applicant attended the IGA Supermarket in Bomaderry and purchased one 4 kg bag of “Redheads BBQ Briquettes”. At 11:51am, he returned and purchased another 4 kg bag. And at 4:25pm, he returned and purchased a final 4 kg bag, and a 10 pack of AAA batteries.

21. [27]

    At 12.30pm on 4 July 2023, the applicant phoned 000 and informed the dispatch office that the deceased had hanged herself earlier that morning. Two ambulances were dispatched immediately to the applicant and the deceased’s residential address.

22. [28]

    The first ambulance officers to arrive were met by the applicant in the driveway of his address. He appeared to them to be calm, and informed them that the deceased was around the back of the premises and was dead. Other ambulance officers who arrived not long after observed the applicant to be crying and distressed when he met them at the front of the house.

23. [29]

    The attending ambulance officers followed the applicant to the rear of the premises, where they observed the deceased to be seated in a camp chair with a green rope tied around her neck. The other end of the rope was fastened to an awning above her head. The deceased’s weight was leaning on the rope, which appeared to be holding her upright. No signs of life were detected in the deceased, and she had deep ligature marks around her neck.

24. [30]

    One of the attending ambulance officers cut the rope and the deceased was carefully rested in the chair. She was observed at that time to be cool but not cold to the touch. One of the attending ambulance officers estimated that she had been deceased for approximately 20 minutes.

25. [31]

    The applicant then told ambulance officers that he and the deceased had a suicide pact and that he had attempted to hang himself as well, without success. He told them that he and the deceased had also tried to “gas themselves” in a small garden shed at the rear of the property.

26. [32]

    The applicant was assessed by one of the attending ambulance officers and noted to have had minor soft tissue ligature marks at the front of his neck only, with some redness circumferentially. He denied any difficulty breathing or swallowing. He was moving his head freely. His voice was not hoarse, and he was speaking in normal, full sentences. He denied any neck or back pain, headache, shortness of breath, or chest pain. He declined the offer of a neck brace.

27. [33]

    A short time later, police arrived at the residence and made a number of observations of the scene.

28. [34]

    A table had been set up in the property’s garage with numerous documents neatly spread out over it; some were in plastic sleeves or large envelopes. There were several plastic containers stacked to the side of the garage. Each of these items was labelled with a name or direction. The documents included copies of the applicant and deceased’s Wills, identification and bankcards, lodgement receipts of postal packages, and letters addressed to various family members.

29. [35]

    There was a small card table next to the deceased (who remained in the camp chair) on which the following items were located: reading glasses, a Stanley knife, a mobile phone, a packet of cigarettes, a cigarette lighter, and a notepad on which the following words were written in the applicant’s handwriting:

30. [36]

    A matching camp chair and longer green rope was situated to the left of the deceased’s chair. That rope was longer and, unlike the rope around the deceased’s neck, had not been cut.

31. [37]

    A plastic sleeve was taped to a gazebo in the yard with a handwritten note and a set of keys inside. The note read:

32. [38]

    Inside a small shed in the backyard, police observed a small Weber-style barbecue sitting next to a trail of white soot. The barbecue contained the same white soot, and below it sat a number of empty bags of “Redheads” brand heat beads.

33. [39]

    A spiral notebook was located at the scene which contained handwritten notes written by the deceased. After alluding to the recent conflict between the applicant, the deceased and her youngest son, these notes stated that:

34. [40]

    The applicant said the following to police regarding the circumstances of the deceased’s death:

35. [41]

    The applicant was taken by police to Shoalhaven Hospital emergency department for a mental health assessment where he was declared to be a mentally ill person and detained under the provisions of the Mental Health Act 2007 (NSW). On 5 July 2023, he was transferred to Shellharbour Hospital, where he remained until 11 July 2023. He was then discharged into the care of his general practitioner with a referral to the Older Persons Mental Health Service.

36. [42]

    On 25 August 2023, the applicant was arrested. He participated in a brief electronically recorded interview, during which he answered “no comment” to all questions put to him by police.

37. [43]

    The deceased had a history of depression, stress and anxiety.

38. [44]

    Between 2009 and 2016, she made frequent presentations to her treating doctors relating to depression, stress and anxiety. Between 2009 and 2016, she was under a mental health care plan and consulting with a psychologist on a semi-regular basis to manage her moods and medication.

39. [45]

    In 2009, the deceased’s employment with the Greater Building Society had ceased and she became engaged in a workers compensation dispute. In mid-2014, after a protracted legal dispute, the deceased’s claim against her former employer was settled. The deceased’s depression, anxiety and the development of chronic conditions was reported on by medical practitioners in the context of this claim.

40. [46]

    Despite regular presentations for chronic physical conditions, the deceased’s medical records between January 2021 and her death in July 2023 make no mention of treatment for depression or anxiety.

41. [47]

    At the time of the offence, the applicant confirmed that neither he nor the deceased were suffering from any life-threatening or terminal illnesses. He told police that the deceased had suffered from depression and anxiety since 2009 but was not medicated for it at the time of her death as she “sorted herself out.”

Did the primary Judge err in declining to find that the applicant had suffered from extra-curial punishment? (Ground 2)

1. [48]

   The applicant contends that the primary Judge erred in failing to consider the extra-curial punishment that he has suffered through the loss of his wife. He says that this was a profound loss and the source of ongoing grief, which has manifested as a form of self-punishment. In support of this, he points to the fact that he was “observed to become tearful when talking about his late wife” during a psychological assessment conducted by Dr Mamta Sidhu on 9 July 2024.

2. [49]

   The concept of extra-curial punishment was considered by this Court in Melville v R [2023] NSWCCA 284. Wilson J (with whom Leeming JA and Davies J agreed) observed at [80] that:

3. [50]

   Before the primary Judge, the applicant relied heavily on the decision of this Court in Hughes v R [2008] NSWCCA 48; 185 A Crim R 155 (“Hughes”). In that case, the offender had entered a plea of guilty to a charge of dangerous driving causing death. The victim was the passenger in a prime mover being driven by the offender whilst under the influence of cannabis. She was also the offender’s life partner and, at the time of the accident, was carrying their unborn child. Although not expressly characterised as “extra-curial punishment”, Grove J (with whom McClellan CJ at CL and Simpson J agreed) referred (at [21]) to an uncontested finding that the offender was “genuinely and deeply remorseful” about the loss of his partner and their unborn child and went on (at [25]) to characterise this remorse as a “significant element of mitigation”.

4. [51]

   It has been recognised in other cases of dangerous driving occasioning death that the effect, on an offender, of the death of another person in an accident – and the consequent self-punishment of shame and guilt – can, in appropriate circumstances, be taken into account in sentencing as a form of extra-curial suffering: R v Wright [2013] NSWCCA 82; 229 A Crim R 245 (“Wright”) at [61]. However, this has not been universally accepted in this Court. In Casey v R [2015] NSWCCA 142, a similar claim of extra-curial punishment – there raised in the context of a close friend killed whilst riding as a pillion passenger on a motorbike crashed by the offender, who was intoxicated – was rejected (at [49]) by Hoeben CJ at CL (with whom Hidden and Adams JJ agreed) in the following terms:

5. [52]

   The claim of extra-curial punishment being considered by Grove J in Alameddine v R [2006] NSWCCA 317 at [17]-[20] was materially different to that which had been made in both Hughes and Wright.

6. [53]

   Grove J was again called upon to consider the issue in Christodoulou v R [2008] NSWCCA 102, observing at [39]-[42] that:

7. [54]

   The distinction between injuries which were deliberately self-inflicted and those which, although self-inflicted in the course of committing the crime, were unintentional, has subsequently been relied on in a number of decisions of this Court when addressing claims of extra-curial punishment. These more recent authorities were helpfully summarised by RS Hulme AJ in Betts v R [2015] NSWCCA 39 at [31]-[35]: see also Quinn v R [2018] NSWCCA 297 at [261]-[265]. Injuries falling within the former category have not been recognised as amounting to extra-curial punishment while those falling in the latter have.

8. [55]

   Finally, the Crown drew the Court’s attention to R v Gabriel [2010] NSWSC 13 – a manslaughter case in which the offender deliberately killed his wife but established that he was provoked into doing so – in which Price J rejected a claim of extra-curial punishment made by the offender deriving from the loss of his wife. While his Honour accepted (at [85]) that the offender’s wife was “a prominent figure in his life and in his plans for a life in retirement” he went on to observe that “the offender’s loss is an inevitable consequence of his having committed the offence.” On that basis, no weight was given to extra-curial punishment.

9. [56]

   The present case highlights the difficulties that can arise when seeking to approach, in a prescriptive way, an issue like extra-curial punishment, which is so heavily dependent on the particular facts of the case in question.

10. [57]

    As was submitted by the Crown, the death of the deceased does lie at the very heart of the offence to which the applicant pleaded guilty. Unlike dangerous driving occasioning death, aiding or abetting suicide is a crime of intention. The death of the victim is an inevitable consequence of the offending. However, in the particular circumstances of this case, the applicant says his loss should not be treated as having been deliberately self-inflicted.

11. [58]

    While such grief as the applicant might have suffered can be taken to have arisen from the deceased’s suicide, he says that had the suicide pact involving both the applicant and the deceased been wholly successful, he too would have perished; his grief would not have been experienced. One might take the view that it was the unsuccessful nature of the applicant’s attempt to take his own life – and, therefore, his survival – that has exposed him to life without the deceased.

12. [59]

    In my view, the authorities to which I have referred above did not preclude the primary Judge from giving weight – as a form of extra-curial punishment – to grief and despair suffered by the applicant through the loss of his wife. To give weight to this consideration, the primary Judge would need to have been satisfied that the applicant had suffered grief and despair at a level where it could properly be regarded as self-punishment. However, it was not put to her Honour by the Crown that she was prevented from doing so and there is nothing in her remarks on sentence which suggested that, in this respect, she considered herself constrained. Herein lies the fundamental difficulty with Ground 2.

13. [60]

    After referring to the applicant’s guilty plea, the primary Judge made the following observations in her remarks on sentence:

14. [61]

    The above remarks must be understood in the context of the argument on extra-curial punishment that had been put to the primary Judge by the applicant. As I have already noted, that argument centred on the decision of this Court in Hughes, in which the extra-curial punishment was described by reference to the “quality and depth of the remorse” experienced by the offender. In this context, the primary Judge’s remarks should be understood as a rejection of the factual premise upon which the applicant’s claim of extra-curial punishment rested.

15. [62]

    Whilst the reference to his knowledge of the likely impact of the suicide on the deceased’s family seems somewhat out of place, the remarks extracted above make clear the primary Judge was not satisfied that the applicant was genuinely remorseful. Her observations regarding the level of insight shown by the applicant are inconsistent with a conclusion that he was burdened by a sense of responsibility for the deceased’s death. As such, the primary Judge must be taken to have rejected the proposition that that applicant suffered grief which had manifested itself as a form of “self-punishment”.

16. [63]

    In these circumstances, Ground 2 is not made out.

Did the primary Judge place excessive weight on the victim impact statements? (Ground 3)

1. [64]

   Two victim impact statements were read at the sentencing of the applicant before the primary Judge. One was prepared by the deceased’s daughter. Another by an individual who described herself as “a lifelong friend” and “confidant” of the deceased; they had known one another throughout their adult lives.

2. [65]

   The friend who provided a victim impact statement is not a member of the deceased’s family. I infer that the Crown was satisfied that she was nevertheless a person with whom the deceased had a close relationship analogous to a family relationship so as to make her a “member of the primary victim’s immediate family” in the sense contemplated by s 26 of the Sentencing Act.

3. [66]

   Before the primary Judge, the applicant did not object to the reading of either statement.

4. [67]

   No application was made by the Crown to rely on either victim impact statement to establish that the harmful impact of the deceased’s death on family victims was an aspect of harm done to the community by the commission of the offence as contemplated by s 30E of the Sentencing Act. It was not suggested in this Court that the primary Judge used either of the victim impact statements in this way.

5. [68]

   The content of the statements was alluded to briefly by the Crown in its submissions to the primary Judge:

6. [69]

   This aspect of the Crown’s submissions was not addressed by the applicant’s then Counsel. In fact, no mention was made of the victim impact statements in his brief oral submissions.

7. [70]

   In her remarks on sentence, the primary Judge observed that:

8. [71]

   These observations are wholly axiomatic. There is nothing in the primary Judge’s remarks on sentence which suggest that her Honour found it necessary to rely on the victim impact statements in order to reach the views expressed in this aspect of her remarks.

9. [72]

   The primary Judge did go on to expressly refer to the victim impact statements. Her Honour did so briefly, and in the context of assessing the objective seriousness of the offence committed by the applicant as follows:

10. [73]

    Ground 3 is expressed as a complaint about the weight given by the primary Judge to the statements when sentencing the applicant. This is not a proper ground of appeal. As this Court observed in Ahmad v R [2021] NSWCCA 30 at [18]:

11. [74]

    For this reason alone, Ground 3 must fail.

12. [75]

    Recognising this difficulty, the applicant, in oral argument before this Court, endeavoured to recast Ground 3 as a complaint that the primary Judge’s observation regarding the victim impact statements contained two implicit findings that “traverse the very nature of the offence” to which the applicant has pleaded guilty.

13. [76]

    The first such finding is said arise out of a reference in the daughter’s statement to the deceased having been “taken from us”. By accepting the daughter’s statement, it was said the primary Judge implicitly accepted that the applicant had taken the life of the deceased whereas, in truth, the deceased took her own life by committing suicide.

14. [77]

    The second finding was said to arise out of a reference in the friend’s statement to “the so-called suicide letters” (emphasis added) sent to a variety of people. By accepting the friend’s statement, it was said the primary Judge implicitly accepted that those suicide notes had been falsified or were otherwise not bona fides, which was said to have amounted to a serious finding of dishonesty against the applicant.

15. [78]

    I do not accept that the primary Judge made any of the findings about which complaint is now made.

16. [79]

    Taken at their highest, those aspects of the primary Judge’s remarks on sentence extracted at [72] above, establish only that her Honour “read the victim impact statements”. They do not rise to an acceptance by the primary Judge of everything that is set out in those statements, let alone the implicit findings now relied upon by the applicant.

17. [80]

    It is true that the primary Judge did not work through the victim impact statements in her remarks on sentence and identify the particular aspects of them on which she relied and those she did not. However, it is not now open to the applicant to complain about that fact in circumstances where he made no submissions to the primary Judge as to the way in which she should approach those documents: Zreika v R [2012] NSWCCA 44; 229 A Crim R 460 at [80]-[81].

18. [81]

    In these circumstances, Ground 3 is also not made out. In the above exposition of my reasons for having reached this view, I have made several observations about the manner in which the applicant’s case was conducted before the primary Judge and the impact that this has on certain issues raised by Ground 3. I do not wish it to be thought that I am being in any way critical of the applicant’s then counsel. Having regard to the applicant’s guilty plea and the case on extra curial punishment he was advancing before the primary Judge, the decision of his counsel not to object to the reading of either victim impact statement or otherwise address their content in his oral submissions would seem to have been an available – and perfectly reasonable – forensic approach.

The proper approach to Grounds 1 and 4

1. [82]

   Both the applicant and the Crown have pointed to the overlap in Grounds 1 and 4 and approached them as though they each raise the same essential issue. While in a practical sense this may be correct, it is important to recognise that, in this Court, the question raised by each Ground may be subtly different. To explain why this is so, it is useful to identify the three stage process the primary Judge was required to have undertaken when sentencing the applicant: see Douar v R [2005] NSWCCA 455; 159 A Crim R 154 at [69]-[72] (“Douar”) and Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3 at [59].

2. [83]

   First, the primary judge was required to consider all possible sentencing alternatives and, having done so, determine whether she was satisfied that no penalty other than imprisonment would be appropriate. Section 5(1) of the Sentencing Act prevented the primary Judge from imposing a sentence of imprisonment unless she was satisfied, having considered all possible alternatives, that no penalty other than imprisonment was appropriate. At this stage in the process, the only consideration is whether a sentence of imprisonment should be imposed, and not the manner in which that sentence of imprisonment is to be served: Douar at [70].

3. [84]

   The primary Judge’s remarks on sentence make clear that she reached the requisite state of satisfaction in the case of the applicant. By Ground 1, the applicant seeks to attack this conclusion.

4. [85]

   Secondly, having satisfied herself that that no penalty other than a sentence of imprisonment was appropriate, the primary Judge was required to determine what the term of that sentence should be. Somewhat counterintuitively, she was required to do this without having regard to whether the sentence was to be immediately served or the manner in which it was to be served: Douar at [71].

5. [86]

   The primary Judge’s remarks on sentence do not expressly address this second stage in a sequential manner. However, it is clear from the sentence ultimately imposed and her observation – immediately after addressing the first stage in the sentencing process – that “I find that the sentence to impose falls within a range whereby the sentence may be served in the community” – that the primary Judge did separately embark upon this second stage of the process and determined that the term of the applicant’s sentence should be 18 months. Whilst it is preferable for a sentencing judge to articulate their conclusions at each of the three stages in the sentencing process, the primary Judge did not fall into error for failing to do so: R v Assaad [2009] NSWCCA 182 at [33]. It is the primary Judge’s determination of the appropriate length of the applicant’s sentence at this stage in the process that is attacked through Ground 4.

6. [87]

   Finally, once the length of the term of imprisonment had been determined, the primary Judge was required to consider whether any alternative to full-time imprisonment was available in respect of that term and whether any available alternative should be utilised: Douar at [72].

7. [88]

   It is readily apparent that the primary Judge properly turned her mind to this last stage of the sentencing process and determined that the applicant’s sentence could and should be served by way of an intensive correction order. Although not expressly articulated in her remarks on sentence, it is implicit in this conclusion, and what was said in her remarks on sentence, that the primary Judge:

   1. (1)

      was satisfied, having considered all possible alternatives that no penalty other than imprisonment was appropriate;

   2. (2)

      determined that the appropriate duration of that sentence was 18 months; and

   3. (3)

      having satisfied herself that the imposition of an intensive correction order was not precluded by ss 67 or 68 of the Sentencing Act – the applicant’s offence not being one of those listed in s 67(1) and the duration of the term of imprisonment to be imposed being less than two years in the sense required by s 68(1) – the primary judge ordered that the sentence be served in that way.

8. [89]

   Although arguably relevant to any assessment of Ground 4, no direct complaint is made about the approach taken by the primary Judge in the third stage of the sentencing process. That is to say, if the primary Judge did not err in either the first or second stages, I do not understand any complaint to be made by the applicant about her conclusion that the 18 month term of imprisonment could and should be served by way of an intensive correction order.

9. [90]

   In this context, and for the reasons that follow, it is appropriate to deal with Grounds 1 and 4 separately.

Did the primary Judge err in finding that the threshold for imprisonment was met? (Ground 1)

1. [91]

   In dealing collectively with Grounds 1 and 4, the Crown relied on the following useful summary of principle in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (“Obeid”) at [443]:

2. [92]

   The state of satisfaction required by s 5(1) of the Sentencing Act conditions the power to impose a sentence of imprisonment. The requisite state of satisfaction is binary; a sentencing judge either is or is not satisfied that no penalty other than imprisonment is appropriate. But it is also evaluative and plainly a matter on which reasonable minds may differ.

3. [93]

   It has been suggested that s 5(1) may not invite a sentencing judge to exercise a discretion: Sarhene v R [2022] NSWCCA 79 at [2]. In these circumstances, there may be room for debate about whether the applicant’s challenge to the primary Judge’s conclusion that the threshold for imprisonment should be considered through the lens of House v The King (1936) 55 CLR 499 – see Minister for Immigration v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [43]-[50] and The Hon Justice R Derrington, “Migrating towards a Principled Approach to Reviewing Jurisdictional Facts” (2020) 27 AJ Admin L 70.

4. [94]

   However, there are also cases in which that is precisely the way in which the issue has been approached: for example, Valenti v R [2016] NSWCCA 17 at [36] and He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [57]. And on any view the issue is informed by findings of a discretionary character; such as the assessment of objective seriousness.

5. [95]

   The standard of appellate review which is to be applied to a decision under s 5(1) of the Sentencing Act was not specifically addressed by the parties in this Court. It was not suggested by the applicant that any different standard of appellate review was to be applied in determining Ground 1. In these circumstances, it is not appropriate for me to address this question in the context of this appeal. Approached in this way, I am satisfied that the primary Judge’s conclusion that no penalty other than imprisonment was appropriate does not disclose error.

6. [96]

   In determining whether the s 5(1) threshold had been crossed, one of the matters the primary Judge was required to take into account was whether the sentence to be imposed would satisfy the purposes of sentencing in s 3A of the Sentencing Act: R v Sabbah [2025] NSWCCA 203 at [168]. Section 3A provides that:

7. [97]

   Each of these considerations was expressly referred to by the primary Judge in her remarks on sentence.

8. [98]

   Reference was also made to the fact that the offence of aiding and abetting suicide exists not only in recognition of the community’s regard for human life, but also for the protection of persons who are vulnerable because of, inter alia, emotional distress. In this respect, the primary Judge properly recognised that the offence to which the applicant had pleaded guilty was serious; it attracted a maximum penalty of 10 years imprisonment.

9. [99]

   In assessing the objective seriousness of the applicant’s offending, the primary Judge found that it fell “somewhere in between” what she described as “a case falling at the very lowest end of the spectrum for crimes of assisting suicide or otherwise aiding a person who professed a wish to die” and “the other end of the scale”, which she described by reference to an offender operating a commercial enterprise assisting members of the community to commit suicide for financial gain.

10. [100]

    In this Court, the applicant took issue with the primary Judge’s characterisation of the objective seriousness of his offending, submitting that her Honour’s remarks indicate a finding that it fell precisely at the midpoint of objective seriousness. The applicant submitted instead that it fell “between the lowest end, and the middle range, rather than in the middle range itself”.

11. [101]

    At the outset, I cannot discern any obvious inconsistency between the primary Judge’s finding on objective seriousness and that now contended for by the applicant. I do not read her Honour’s remarks on sentence as embodying a finding that the applicant’s offending lay precisely at the midpoint of objective seriousness and the sentence ultimately imposed by the primary Judge suggests that she was not proceeding on this basis.

12. [102]

    However, in combination, the remarks on sentence and the sentence ultimately imposed do suggest that the primary Judge assessed the objective seriousness to be somewhat higher than that now contended for by the applicant. Adopting the observations of this Court in Mulato v R [2006] NSWCCA 282 at [37] and [46], I see no proper basis for disturbing the approach taken by her in her assessment of that matter.

13. [103]

    In reaching her view on objective seriousness, the primary Judge had regard to the following:

    1. (1)

       The extensive planning undertaken by the applicant in preparation for the deceased’s suicide. As is apparent from the description of the preparatory steps in paragraphs [15]-[24] above, the applicant himself carried out considerable planning over a period of months in the lead up to the deceased’s suicide.

    2. (2)

       Throughout this planning period, there were many opportunities afforded to the applicant to rethink what was proposed and take steps to encourage the deceased to seek assistance and resolve the family issues which were the catalyst for her distress. He failed to do so.

    3. (3)

       Similarly, the applicant and the deceased’s earlier unsuccessful attempts at suicide ought to have been a trigger for him to reassess what was being attempted and seek help. He did not.

    4. (4)

       The axiomatic fact that the deceased’s family and friends were deprived of the opportunity to make amends with her and significantly impacted by the letters the applicant mailed to them, and their exclusion from the deceased’s funeral.

14. [104]

    The combination of the seriousness of the offence, the substantial maximum penalty specified by the Parliament, and the primary Judge’s assessment of the objective seriousness of the applicant’s offending conduct, called for the imposition of a stern sentence.

15. [105]

    The primary Judge gave a full discount for the applicant’s guilty plea and recognised both its utilitarian value and the contrition it demonstrated. She gave weight to the applicant’s prior good character, his excellent prospects of rehabilitation, and the mental health issues that may have impacted upon his offending.

16. [106]

    The primary Judge was nevertheless satisfied that no penalty other than imprisonment was appropriate. I am satisfied that it was not only open to her to have reached this conclusion but also that it was correct in the circumstances.

17. [107]

    For these reasons, Ground 1 must also fail.

Was the sentence imposed by the primary Judge manifestly excessive? (Ground 4)

1. [108]

   This aspect of the applicant’s case can be dealt with briefly. As I have already noted, Ground 4 principally challenges the finding made by the primary Judge at the second stage of the sentencing process. There can be no doubt that the principles summarised in Obeid, which I have extracted above, govern this aspect of the applicant’s case.

2. [109]

   As I have not disturbed the primary Judge’s conclusion that the threshold in s 5(1) of the Sentencing Act had been crossed, the only issue remaining to be determined is whether the 18-month duration of the applicant’s sentence was so far outside the range of sentences available that there must have been an error made by the primary Judge.

3. [110]

   Given the applicant’s age, his prior good character and his early plea of guilty, views might reasonably differ as to whether an 18 month term of imprisonment served by way of an intensive correction order was an excessively stern sentence. However, it does not lie so far outside the range of sentences available to the primary Judge that there must have been an error made. In my view, the applicant has failed to discharge the “very heavy practical burden” required to demonstrate manifest excess: see He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42(4)].

4. [111]

   Ground 4 has not been made out.

5. [112]

   For the above reasons, I would:

   1. (1)

      Grant leave to appeal; and

   2. (2)

      Dismiss the appeal.