Sampson v R

1. [1]

   DAVIES J: The applicant pleaded guilty at a super call-over to one offence of intentionally causing grievous bodily harm contrary to s 33(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 25 years’ imprisonment and there is a standard non-parole period of seven years.

2. [2]

   He came before Judge Ellis in the Newcastle District Court for sentence on 13 December 2023. He asked Judge Ellis to take into account the offence on a Form 1, an offence of knowingly contravening an apprehended domestic violence order (“ADVO”) contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

3. [3]

   On that day Judge Ellis, taking into account the offence on the Form 1, sentenced the applicant to imprisonment for 5 years commencing 9 September 2022 and expiring 8 September 2027 with a non-parole period of 3 years expiring 8 September 2025.

4. [4]

   The applicant now seeks leave to appeal against his sentence on the following grounds:

The offending

1. [5]

   The applicant was sentenced on the basis of a statement of agreed facts which may be summarised as follows.

2. [6]

   The victim of the offending was Miri Morris-Duncan. She and the applicant had known each other for 11 or 12 years and had been in a relationship for about eight years. They have two children from the relationship, JS aged 11 years and LD aged four years. Each of those children was being brought up by their grandparents.

3. [7]

   At the time of the offending there was an enforceable ADVO in place for the protection of the victim and that included a non-contact provision. There was a history of domestic violence towards her.

4. [8]

   On the evening of 21 August 2022, the applicant and the victim were at the victim’s home in Adamstown. The applicant was under the influence of alcohol and illicit drugs, and the victim was under the influence of alcohol.

5. [9]

   At around 8:00pm the applicant began to argue with the victim, demanding her online passwords and accusing her of sleeping with other people.

6. [10]

   The victim went out onto the balcony. The applicant followed her. He picked up a garden stake from the balcony and said to the victim, "I'm gonna whack you". He then used a garden stake to strike the victim once. The stake made contact with the victim's right eye area.

7. [11]

   The victim screamed loudly and said, "Ring an ambulance, ring an ambulance". The victim's eye was bleeding significantly and she was crying. The applicant also started crying. He called an ambulance. Surrounding neighbours heard the screaming and called police who attended shortly thereafter.

8. [12]

   When the police attended at the property, the victim indicated that no one else was present, and said she had been assaulted by "Dane Brooks", who had since left the scene.

9. [13]

   Police noted an internally locked bathroom, and after some negotiation, including with the victim who said that nobody was in the bathroom, police forced entry. They found and detained the applicant. The applicant protested his innocence and denied assaulting the victim. He told the police that the offender’s name was Jordan Thomas McGrady.

10. [14]

    The victim was transported to John Hunter Hospital by ambulance and was ultimately referred to the Sydney Eye Hospital due to the severity of the injury to her eye.

11. [15]

    Shortly before she was discharged on 3 September 2022, she made a disclosure to an attending nurse about the offending being a domestic violence incident. The police were contacted and attended the hospital. The victim participated in a recorded Domestic Violence Evidence in Chief (“DVEC”) with the police and disclosed the offending. Thereafter the police arrested the applicant on 9 September 2022.

12. [16]

    The victim suffered the following injuries as a result of the offending:

13. [17]

    She underwent corrective surgery on 1 September 2022.

14. [18]

    A letter from Dr Shivram Nadkami, an ophthalmologist, dated 10 January 2023 said that the victim had a good outcome from a surgical perspective but that her vision was very poor due to the scarring at the centre of the macula. She was advised that it was unlikely that there would be substantial improvement in her right eye vision.

15. [19]

    On 27 November 2023, the victim’s general practitioner referred her to an optometrist at Specsavers. The doctor reported that the victim had presented today feeling that her right periorbital region was swollen and she was fearful that her vision might be worsening. The doctor said that her visual acuity in the right eye was hand movements only which is baseline.

Remarks on sentence (ROS)

1. [20]

   The sentence proceedings were heard on 13 December 2023, following which the sentencing judge delivered his ROS. Both the Crown and the defence provided detailed submissions and made brief oral submissions.

2. [21]

   Immediately before his Honour began to deliver his ROS, his Honour said this:

3. [22]

   In the ROS, his Honour set out the offence to which the applicant had pleaded guilty and the offence that the applicant had asked his Honour to take into account on a Form 1. His Honour then noted the applicant’s plea at the super call-over and said:

4. [23]

   His Honour then set out the facts and noted the medical reports concerning the victim’s eye. He concluded by saying:

5. [24]

   His Honour next noted the lengthy criminal record of the applicant and particularly his history of domestic violence matters concerning the victim that dated back to 2011. In particular, the sentencing judge noted a sentence of 3 months’ imprisonment imposed on the applicant on 12 September 2022 for a contravention of an ADVO against the same victim, which commenced on 9 September 2022. His Honour said he would apply the principle of totality by commencing the present sentence on the same date.

6. [25]

   The sentencing judge was provided with a report from Dr Richard Furst and he referred to that report in some detail. The applicant was then a 32 year old Indigenous man. His mother was an alcoholic and a drug addict who had had many partners, a number of whom were violent both towards her and towards the applicant when he was growing up. The applicant told Dr Furst that he had been sexually abused by an uncle when he was aged about ten years, and he was subsequently sexually abused by a male worker at the Acmena Youth Justice Centre in 2008 when he was aged 16 years.

7. [26]

   The applicant commenced drinking and using cannabis from the age of nine or ten years, and amphetamines and heroin from the age of 17 years. He was on monthly injections of buprenorphine. There was a family history of drinking and drug problems.

8. [27]

   The applicant had been negatively influenced by peers who used drugs. His experience of domestic violence, general violence and sexual violence led to him being diagnosed in childhood with post-traumatic stress disorder (“PTSD”). He never knew his biological father, and his mother’s maternal deficits had adversely impacted his social and emotional development, predisposing him to becoming an anxious and unhappy child and an emotionally troubled teenager.

9. [28]

   Dr Furst’s report noted that there was now strong evidence that the risk of addiction to alcohol and drugs is largely inherited, with genetic factors accounting for at least 50% of the causation of addiction. Dr Furst concluded that the applicant’s drinking, drug use and drug addiction were largely the product of his genetic vulnerability to drug addiction coupled with the traumatic effects of parental abuse and neglect, and childhood sexual abuse victimisation.

10. [29]

    The sentencing judge then said:

11. [30]

    When his Honour came to impose the sentence he said this:

Grounds of appeal

1. [31]

   The applicant submitted that his Honour rounded down the discount to even months so that instead of providing a discount of 6 months and 18 days, his Honour only discounted it by 6 months. The applicant submitted that such a rounding exercise is not permitted by what is provided in Div 1A of Pt 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) and what this Court said in Stubbings v R [2023] NSWCCA 69, Doyle v R (2022) 108 NSWLR 1; [2022] NSWCCA 81 and Baydoun v R [2024] NSWCCA 65.

2. [32]

   The applicant submitted that the error was not one which required the Court to re-exercise a sentencing discretion. Rather, the error could be addressed by an approximate mathematical correction to the head sentence and non-parole period.

3. [33]

   The Crown submitted that the use of rounding of sentences was orthodox and of long standing. The Crown submitted that the overall discount included the mandatory statutory 10% discount and an unspecified discount for assisting the administration of justice by pleading guilty at the super call-over. In that way it was within the proper exercise of the Judge’s sentencing discretion to adjust the head sentence to one of 5 years’ imprisonment, given that he was ultimately synthesizing both a mandatory and unquantified discount for the guilty plea.

4. [34]

   The Crown submitted that if there was error it could not be corrected by an arithmetical exercise. Rather, the resentencing discretion had to be exercised in accordance with what was said in Christian v R [2021] NSWCCA 300.

5. [35]

   While it is clear that the sentencing judge was providing a discount under s 25D of the Sentencing Act, what is less clear is what the other discount was provided for. As noted at [30] above, his Honour referred to “s 23 assistance”, and as noted at [22] above, his Honour referred to “assistance to authorities”. There was no evidence of such assistance. What the applicant had sought in his written submissions was “an additional discount for assisting the administration of justice by pleading guilty in the context of a super call-over”.

6. [36]

   It seems likely, therefore, that the further discount was accorded pursuant to s 22A of the Sentencing Act which provides:

7. [37]

   The relevance of s 22A to pleas at super call-overs was discussed by Yehia J (Wright and Cavanagh JJ agreeing) in BAP v R [2024] NSWCCA 206 at [58]-[62]. Despite s 22A referring to “an offender who was tried on indictment”, a discount under that section is not confined to the position where there has been a trial on indictment: R v Lambroglou [2024] NSWSC 829 at [82]; Doyle at [19]; BAP at [54].

8. [38]

   Division 1A of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) relevantly provides:

9. [39]

   In Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17 Simpson AJA (with whom Ierace and Dhanji JJ agreed) said at [2]:

10. [40]

    In Stubbings Gleeson JA (Davies and Wilson JJ agreeing) said at [15]:

11. [41]

    In Doyle Bell CJ (Bellew and Ierace JJ agreeing) said at [6]:

12. [42]

    In Baydoun Chen J (Wilson and Huggett JJ agreeing) said at [69]:

13. [43]

    Division 1A is a mandatory scheme subject only to the exceptions provided in s 25F(2) and (4). In the present case the sentencing judge, in fixing the discount for the plea, did not purport to rely on those exceptions. As inconvenient as it might have been because the discount involved part of a month, the sentencing judge was, nevertheless, obliged to provide the discount stipulated in s 25D. Although the failure to do so did not invalidate the sentence, it amounted to error.

14. [44]

    The Crown’s submission that it was within the proper exercise of the sentencing judge’s discretion to adjust the head sentence to one of 5 years’ imprisonment, given that he was ultimately synthesizing both a mandatory and an unquantified discount for the applicant's guilty plea is misconceived. What his Honour did in rounding the discount was effectively to reduce the discount. Had the discount been provided on an arithmetically correct basis, it would have been a discount of 6.6 months (10% of 66 months), that is 6 months and 18 days. The head sentence would, therefore, have been 4 years 11 months and 12 days.

15. [45]

    In that way, if his Honour was rounding the discount to provide for an unquantified discount for facilitating the administration of justice, the discounted sentence should have been rounded down (if the sentence was to start in whole months rather than days) at least to 4 years and 11 months rather than the 5 years his Honour ordered, which was a rounding up, contrary to s 25D and to the detriment of the applicant. In that regard, it is difficult to understand the Crown’s submission that his Honour was justified in rounding to 5 years because he had included the unspecified discount for assistance. Such an inclusion should have resulted in a lower sentence, not a higher one.

16. [46]

    The Crown also relied on decisions suggesting that the rounding of sentences is orthodox and of longstanding. In Williamson v R [2015] NSWCCA 250, R A Hulme J (with Macfarlan JA and Wilson J agreeing) said at [53]:

17. [47]

    What Simpson J said in the portion of Akkawi v R; Akkawi v R [2012] NSWCCA 11, cited by R A Hulme J, had become a common refrain in this Court. However, that was prior to the enactment of Div 1A which, apart from the two exceptions mentioned, provides for fixed and mandatory discounts.

18. [48]

    The rounding referred to in R v Stephens [2024] NSWCCA 170 at [231] (also relied upon by the Crown) appears to have been done without any argument being addressed to the mandatory requirements of Div 1A. It should not be regarded as authority for any practice of rounding in respect of Div 1A discounts.

19. [49]

    In my opinion, it was not open to the sentencing judge to round the discount provided in s 25D, either up or down. His Honour was obliged to discount his notional starting point by 6.6 months with the result (unfortunate as it is) that the head sentence ought to have been 4 years and 11 months and 12 days. It would then have been open to the judge to round that down to take account of the “lesser penalty” referred to in s 22A.

20. [50]

    I would uphold ground 1.

21. [51]

    The applicant submitted that if only ground 1 was upheld it was not necessary for this Court to engage in the resentencing process as required by Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The applicant submitted that the error could be corrected by an arithmetical correction to the head sentence and the non-parole period.

22. [52]

    In my opinion, this is not the type of error where there can be an arithmetical correction. The matter was discussed in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255, where Bathurst CJ, (Beazley P, R A Hulme, Schmidt and Wilson JJ agreeing) at [68] rejected the proposition:

23. [53]

    His Honour went on to say:

24. [54]

    In Zeiser v R [2020] NSWCCA 154, this Court (Payne JA, Fagan and Cavanagh JJ) construed Lehn as holding that even where a “discrete error” such as the application of a discount has affected a sentencing purpose and has been taken up in the exercise of the sentencing discretion, the Court cannot simply adjust for the error but must resentence in accordance with Kentwell.

25. [55]

    Lehn and Zeiser were discussed by Beech-Jones CJ at CL in Christian at [29]-[35]. His Honour went on to hold (at [36]) that the error of the sentencing judge in that case in failing to give effect to the finding of special circumstances (his Honour did not alter the statutory ratio) was an error that required a full Kentwell resentencing because “[t]he fixing of a non-parole period is an essential component of the overall sentence”.

26. [56]

    In the present case, there seem to me to be two problems with the notion that the present error is simply an arithmetical one. First, his Honour purported to include in the discount from the starting point of 5 years and 6 months not only the s 25D discount but also a discount under s 22A. That latter discount was not specified and appears to have been given largely for the purpose of rounding the total discount to produce a head sentence in whole months. If the s 25D discount is adjusted (as it must be), discretionary considerations then arise in respect of the s 22A discount.

27. [57]

    Secondly, it is not clear from the remarks of the sentencing judge whether he considered that a non-parole period of 3 years was the minimum sentence which should be imposed so that the applicant was appropriately punished for his offending or whether the non-parole period should be 60% of whatever overall sentence was imposed. In other words, his Honour’s focus may not have been on the 60% ratio that his sentence produced but on the 3 year non-parole period.

28. [58]

    Accordingly, since error has been found it will be necessary for the Court to resentence the applicant. Although not strictly necessary to do so because of the need to resentence the applicant, in deference to the submissions made, grounds 2 and 3 will be dealt with. What follows will also be relevant to the resentencing exercise.

29. [59]

    The applicant submitted that the sentencing judge did not in terms address the objective seriousness of the principal offence, but the applicant acknowledged that his Honour referred to the nature of the injury that had been caused. The applicant submitted, however, that his Honour did not address the submission that the objective seriousness of the principal offence was mitigated because it was not part of a planned or organised criminal activity.

30. [60]

    The applicant submitted that this submission, when seen within the context of the agreed facts, was an important one for determining the nature of the applicant's intention to cause grievous bodily harm and the seriousness of the offence. Reliance was placed on what was said by Howie J in R v Mitchell; R v Gallagher [2007] NSWCCA 296; (2007) 177 A Crim R 94 at [27].

31. [61]

    The applicant submitted that the facts, being a single strike to the face with a bamboo rod that the applicant picked up from the balcony before saying “I’m gonna whack you”, established that the intention to use the item and cause grievous bodily was unplanned and did not involve a great deal of deliberation or premeditation. The applicant submitted that the failure of the sentencing judge to take into account the fact that the offence was not planned was a material error.

32. [62]

    The Crown submitted that in the ROS the sentencing judge did not place the objective seriousness of the offence on some putative scale, although his Honour foreshadowed at the conclusion of the sentence proceedings that in his view the criminality of the offending was “slightly below the mid-range", which was consistent with the applicant's submissions on sentence. The Crown submitted that neither party took issue with that assessment.

33. [63]

    The Crown submitted that the mens rea of the offence was an intention to cause grievous bodily harm, and it is not clear what more the sentencing judge could have reasonably been expected to do in his analysis of the applicant's intention.

34. [64]

    The Crown submitted that while the offence was not obviously part of a planned or organised criminal activity, that factor was of little relevance or weight, and had little mitigating effect, when considering the objective seriousness of the offence, particularly in the context of domestic violence offences. The Crown submitted that such a factor could not be mitigating, given the applicant's repetitive behaviour of engaging in domestic violence against the victim over a lengthy period.

35. [65]

    The Crown submitted that on a fair reading of the ex tempore reasons, the applicant simply did not persuade the sentencing judge on the balance of probabilities that the degree of planning was a relevant, let alone mitigating, factor in this case.

36. [66]

    Although a written submission was made that the lack of planning was a mitigating factor, nothing further was said about the matter in oral submissions and, when the sentencing judge having almost finished his ROS asked counsel if there were any other matters he needed to deal with, nothing was said about that matter or the objective seriousness of the offence. Further, the defence submission had been that the offence fell below the midrange and his Honour expressed the view at the completion of the sentence hearing that the criminality was slightly below the midrange. That may be an explanation for nothing further being said about a lack of planning and its relationship to an assessment of objective seriousness.

37. [67]

    The applicant relied on what was said by Howie J in Mitchell at [27]:

38. [68]

    The applicant submitted that the lack of planning in the present case was relevant to “the nature of the intention to do grievous bodily harm” when the offence charged was one under s 33 rather than s 35. The applicant put the matter another way by submitting that on the facts of the present case there was little to distinguish a s 35 offence from the s 33 offence as charged. In that way the present facts, with a lack of planning, just made it to the threshold of an intention to do grievous bodily harm within s 33.

39. [69]

    It was apparent from the facts of the matter, which the Judge recited in his ROS, that there was little planning involved in the offending. The fact that there was little planning does not necessarily mean the offending was mitigated. Although planning, or a lack of it, is a factor to be considered both in s 21A(2) and (3) of the Sentencing Act, it was the applicant here who was seeking the benefit of s 21A(2)(n), and the onus was on him to establish that the offending should be mitigated by the fact of any lack of planning.

40. [70]

    A similar situation occurred in Kennedy v R [2022] NSWCCA 215. A ground of appeal in that case was an alleged failure to take into account that far more serious domestic violence offending was not planned. Justice Adamson (Garling and N Adams JJ agreeing) said:

41. [71]

    As that portion of Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [22] makes clear, and as Adamson J said in Kennedy at [53], there will be some cases where a lack of planning will not be mitigating. In my opinion the present is such a case. As in Kennedy it is difficult to see how the lack of planning could mitigate an offence which was typified by irrational jealousy brought about by insecurity and manifested by the attempt at control. The significance of that is increased by the history of domestic violence over 10 or 11 years inflicted on the victim by the applicant in the present case. The fact that this offence was unplanned was of little or no significance in the matter.

42. [72]

    Despite the reliance by the applicant on what was said by Howie J in Mitchell, the significant point being made in that judgment was that the nature of the injury inflicted is the important consideration for the assessment of the seriousness of the offending and the appropriate sentence. Mitchell was also a case involving a chance encounter between the victim and the offenders and, hence, no planning.

43. [73]

    I would reject this ground.

44. [74]

    The applicant submitted that although the sentencing judge accepted that the applicant met the DSM-5 criteria for PTSD and alcohol substance use disorder, and took the applicant's mental health issues into account in making a finding of special circumstances, at no stage did his Honour address the applicant's mental health issues in accordance with De La Rosa.

45. [75]

    The applicant pointed out that submissions made on his behalf to the sentencing judge had expressly suggested that his mental health issues made him a poor vehicle for general deterrence and somewhat moderated the need for specific deterrence. His Honour said nothing about those matters. The applicant submitted that the submission to the sentencing judge was supported by the unchallenged report by Dr Furst which noted the presence of PTSD in the applicant dating back to childhood.

46. [76]

    The applicant submitted that the failure to engage with the submission constituted error. In that regard the applicant submitted that the applicant's mental health issues were not entirely coterminous with the applicant's history of disadvantage, and the mental health issues required separate consideration.

47. [77]

    The Crown submitted that on a fair reading of the ROS, it is clear that the sentencing judge accepted the thrust of the applicant’s submissions that the applicant had a deprived upbringing and had mental health issues, and that his Honour took these into account in determining the appropriate sentence. The Crown pointed out that the applicant's mental health was clearly relevant in the finding of special circumstances and operated to reduce the statutory ratio to 60%.

48. [78]

    The Crown submitted that the sentencing judge was also required to take into account the fact that the applicant had a history of domestic violence offences dating back to 2011 and a criminal history involving other offences including relating to drugs and firearms. Accordingly, it did not automatically follow that the applicant’s long-standing mental health issues should lead to a reduction in the need for specific and/or general deterrence.

49. [79]

    The Crown drew attention to what was said in R v Wright (1997) 93 A Crim R 48 at 51, approved in Wang v R [2021] NSWCCA 282 at [98], which held that where an offender acts with knowledge of what they are doing and with knowledge of the gravity of their actions, the moderation of the need for general deterrence need not be great.

50. [80]

    The Crown submitted further that, in the light of the applicant's long history of domestic violence against the same victim and continuing breaches of ADVOs, and the way this offence occurred, all of these matters required that very considerable weight be given to the issue of specific deterrence to vindicate the victim and in relation to the protection of the community.

51. [81]

    This ground of appeal (and to a lesser extent ground 2) resulted in an issue being raised by the Court about which the parties sought leave to file additional written submissions. Such leave was given. The issue arose from two inquiries made by the sentencing judge of counsel, one prior to imposing the sentence, and, less importantly, one following the imposition of the sentence.

52. [82]

    Before the sentence was imposed, but otherwise at the conclusion of the ROS, his Honour said:

53. [83]

    It should be recalled that immediately prior to the delivery of the ROS his Honour said what is set out at [21] above, where his Honour effectively summarised what he intended to find and the sentence he intended to impose.

54. [84]

    Following the imposition of the sentence, his Honour said:

55. [85]

    In my opinion, the question posed after imposition of the sentence should be put aside. It is the sort of question that most judges ask after a sentence is imposed in case some arithmetical error or date error has been made in relation to the sentence. It is not an invitation for counsel to raise substantive issues.

56. [86]

    The issue identified by the Court in relation to the first question asked by his Honour before sentence was imposed raised issues about the sentencing judge’s obligations and the obligations of counsel, including whether there was any obligation on counsel to reiterate or reagitate a particular submission previously made whether orally or in writing.

57. [87]

    Before considering those matters, it is important to consider ground 3 without reference to the sentencing judge’s inquiry of counsel; in other words, is error demonstrated ignoring the judge’s inquiry of counsel?

58. [88]

    In the applicant’s written submissions to the sentencing judge, there appeared a long section under the heading “Moral Culpability”. The applicant there dealt with the report of Dr Furst in considerable detail and submitted that the applicant’s deprived background reduced his moral culpability and allowed the Court to place more weight on the need to rehabilitate him to reduce his risk of reoffending and to protect the community.

59. [89]

    Thereafter the written submissions under the heading “Mental Health” said this:

60. [90]

    As can be observed, the applicant relied on his mental health issues to submit that they moderated the need for specific deterrence somewhat and made him a poor vehicle for general deterrence.

61. [91]

    This was a case like many others where issues of a deprived or dysfunctional childhood and background were closely bound up with mental health issues that subsequently developed as a result. Dr Furst said in this report:

62. [92]

    It appears clear from the ROS ([29] above) that his Honour had regard to both childhood deprivation and the applicant’s mental health issues in holding that the principles from Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 applied, and it can be inferred that his Honour regarded the applicant’s moral culpability to have been reduced. It is apparent from Dr Furst’s report that he regarded the applicant’s mental health issues to be closely bound up with the applicant’s dysfunctional childhood. Although the applicant sought to have the two matters treated separately before the sentencing judge, there was no error in the approach taken by his Honour in that regard.

63. [93]

    It is also clear that both matters were taken into consideration for the finding of special circumstances and that the applicant’s time in custody would be harsher for those reasons.

64. [94]

    What his Honour did not engage with was the submission made as to the effect of the mental health issues on specific and general deterrence as identified in De La Rosa.

65. [95]

    It is accepted that the principles set out at [177] of De La Rosa say only that the mental health issues “may” have the consequence that an offender is an inappropriate vehicle for general deterrence and “may” reduce or eliminate the significance of specific deterrence. It is a matter for a sentencing judge in any case to consider whether mental health issues have such an effect.

66. [96]

    However, a specific submission was made in the present case which the sentencing judge said nothing about. Nor is it possible to infer from the way his Honour dealt with the mental health issues that, at least, the issue of general deterrence had been considered by his Honour. On the other hand, his Honour was alive to the fact that the applicant had engaged in domestic violence offences against the same victim over some 12 years with the result that specific deterrence was still likely to feature largely in any sentence imposed, as the applicant’s counsel accepted at the hearing of the appeal.

67. [97]

    The failure to make reference to general deterrence or the applicant’s submission about it was an error: Shine v R [2016] NSWCCA 149; (2016) 260 A Crim R 534 at [76].

68. [98]

    It must then be determined if his Honour’s question, set out at [82] above, and the applicant’s failure to respond to it, relieved his Honour of the need to address further the written submissions already made.

69. [99]

    In GAS v R; SJK v R (2004) 217 CLR 198; [2004] HCA 22 the High Court said:

70. [100]

    In Lee v R [2016] NSWCCA 146 Basten JA and McCallum J (with whom I agreed) said:

71. [101]

    In Warwick v R [2016] NSWCCA 183 a ground of appeal raised was that the sentencing judge had failed to apply the totality principle. In dealing with that ground, Adamson J (with whom Payne JA and R A Hulme J agreed) said:

72. [102]

    In Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 Kirk JA (White and Mitchelmore JJA agreeing) said at [43]:

73. [103]

    A number of propositions flow from what was said in those cases. First, it is ultimately the judge’s responsibility to determine and apply the law, and that task is not circumscribed by the conduct of counsel. Secondly, a failure of counsel to raise a matter of importance that affects the sentencing will not mean that a judge has not fallen into error where the judge does not mention the matter. Thirdly, some matters are of such significance that, regardless of whether submissions are made, the judge is obliged to deal with the issue or principle concerned. Fourthly, it is the obligation of the judge to provide reasons for resolving critical matters in the contest between the parties, and a failure to mention those matters may lead to the conclusion that the judge overlooked the matter, so that error is thereby demonstrated.

74. [104]

    There can be no doubt that general deterrence is a fundamental principle of sentencing: s 3A(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). That is particularly the case in sentencing for crimes involving domestic violence: Cherry v R [2017] NSWCCA 150 at [76]-[80]; Stephens at [175]-[176]. In Shen v R [2024] NSWCCA 252, Rothman J (Kirk JA and Yehia J agreeing) said at [26]:

75. [105]

    Even where general deterrence or some factor that is said to mitigate the weight to be given to general deterrence is identified, it is expected that a judge will make reference to the weight to be given to general deterrence when sentencing for offences, and whether mental health issues make an offender an inappropriate vehicle for general deterrence.

76. [106]

    If error can be established where a judge is misled by the approach taken by counsel, an omission of counsel to raise or reiterate a matter when the sentencing judge asks if he or she has overlooked any matter, will not mean that error has not been established if the matter is not dealt with in the sentencing judge’s reasons. In the present case, as noted earlier, the effect of the applicant’s mental health issues on general deterrence was expressly put forward as a submission on behalf of the applicant. The omission of counsel to raise the matter again in answer to the judge’s question does not mean that error has not been committed.

77. [107]

    I would uphold ground 3.

Re-sentence

1. [108]

   I agree with the sentencing judge’s assessment that the offence falls slightly below the midrange of objective seriousness. At the time of the offending the applicant was on bail for six offences: possessing a prohibited drug, supplying an indictable quantity of a prohibited drug and four counts of failing to comply with reporting obligations. That matter and the fact that the offending was committed in the home of the victim, are aggravating matters.

2. [109]

   I also agree with the sentencing judge that by reason of the deprived childhood of the applicant which led to his mental health issues as identified by Dr Furst, there should be a diminution in moral culpability in accordance with what was said in Bugmy. I do not consider, however, that the applicant’s mental health issues mean that lesser weight should be placed on specific deterrence. In regard to specific deterrence the applicant had a long history of domestic violence offending against the present victim.

3. [110]

   Dr Furst indirectly suggests that the applicant’s PTSD might have contributed to his offending because it caused a resort to drugs and alcohol, being a maladaptive means of coping with subjective distress. I would regard the applicant’s condition as one that renders him a less suitable vehicle for general deterrence than would otherwise be the case. Having regard, however, to his history and, in particular, his long record of domestic violence, this is a case where any amelioration of the weight to be given to general deterrence on the evidence given at sentence could properly be regarded as counterbalanced by the increased need for specific deterrence: R v Engert (1995) 84 A Crim R 67; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [54]. However, the evidence available on re-sentence, discussed below, is more positive and provides a basis for some small amelioration of the weight that I would otherwise have given to specific deterrence.

4. [111]

   Further, as the cases mentioned earlier make clear, general deterrence is of considerable significance in relation to domestic violence offences. In Wang, R A Hulme J (Meagher JA and Davies J agreeing) said at [98]:

5. [112]

   Nevertheless, I would place less emphasis on general deterrence than would have been the case but for the applicant’s mental condition. In all the circumstances, the reduction should be slight.

6. [113]

   I am not satisfied on the basis of the applicant’s late plea and his statement to Dr Furst, that he “regretted everything, [i]t shouldn’t have happened”, that he has shown remorse in terms of s 21A(3)(i) of the Sentencing Act.

7. [114]

   I agree with his Honour’s assessment that special circumstances are demonstrated in that the applicant is at risk of institutionalisation, his mental health issues will make his time in custody more difficult, he needs a longer period on parole to deal with his substance abuse issues, and he has been in custody while there have been COVID-19 restrictions.

8. [115]

   Evidence received on the usual basis from the applicant and his solicitor showed that the applicant has completed four EQUIPS programs including domestic and family violence, addiction and aggression. The case notes suggest that he has gained some insight into his behaviour as a result of completing the courses.

9. [116]

   The evidence also shows that the applicant was working as a sweeper when at Clarence Correctional Centre from January 2024 until January 2025. Although the applicant received a number of prison infringements since going into custody in respect of the present offences on 9 September 2022, the last such infringements were in December 2023 and January 2024. The applicant said that he is feeling healthy, he is continuing his Buvidal treatment and he has remained drug-free in custody. These matters and the completion of the EQUIPS programs point to a more positive outlook for his rehabilitation and are likely to reduce his risk of reoffending, but the prognosis must be guarded.

10. [117]

    Notwithstanding that this offence was a serious act of domestic violence by someone who had perpetrated domestic violence against the same victim for over 10 years, the progress he has made in prison justifies a slightly reduced starting point for the sentence now to be imposed. I consider that before a discount for his plea the appropriate sentence is imprisonment for 5 years. He is entitled to a discount of 10% pursuant to 25D of the Sentencing Act. I would not allow any other discount pursuant to s 22A because it would result in a sentence unreasonably disproportionate to the offending. I would maintain the present ratio between the non-parole period and the balance of term rounded down to whole months.

11. [118]

    Bearing in mind the totality principle I will commence the proposed sentence on 9 September 2022 being the same commencement date for the sentence imposed by the Newcastle Local Court on 12 September 2022 in respect of the offences referred to in paragraph [108] above.

12. [119]

    I propose the following orders:

    1. (1)

       Grant leave to appeal.

    2. (2)

       Appeal allowed.

    3. (3)

       Quash the sentence imposed in the District Court on 13 December 2023.

    4. (4)

       In lieu, taking into account the matter on the Form 1, sentence the appellant to a non-parole period of 2 years 8 months commencing 9 September 2022 and expiring 8 May 2025 with a balance of term of 1 year 10 months expiring 8 February 2027.

    5. (5)

       The applicant is first eligible for parole on 8 May 2025.

13. [120]

    DHANJI J: In this matter I have had the considerable benefit of reading the judgment of Davies J in draft. I agree with the orders proposed by his Honour and, in general, with the reasons for those orders. I would only add the following. The availability of a discount pursuant to s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) after a plea of guilty and in the absence of a trial was assumed by the parties on the appeal, and it appears by those who appeared at first instance. In the absence of full argument I am prepared to make the same assumption. Certainly, the current form of the provision is more amenable to such a reading than the form of the provision when first enacted.

14. [121]

    HUGGETT J: I have had the opportunity to read in draft the reasons for judgment and the orders proposed by Davies J. I agree with his Honour’s reasons and proposed orders.

15. [122]

    I also agree with the additional observations of Dhanji J at [120] regarding s 22A of the Sentencing Act. As was observed by Yehia J in BAP at [61], the extent to which s 22A of the Sentencing Act might be called in aid where a plea of guilty is entered during a “super call-over” warranting the imposition of a lesser penalty beyond the discount mandated by s 25D of the Sentencing Act, will depend on the facts and circumstances of a particular case.