Ladas v R

1. [1]

   BEECH-JONES CJ at CL: I have had the benefit of reading the judgment of Dhanji J. Subject to what follows I agree with his Honour’s reasons.

2. [2]

   In relation to ground 1, the sentencing judge’s finding that the applicant’s moral culpability was reduced was a matter that his Honour was required to consider in determining the appropriate sentence, especially so far as his Honour had to consider the weight to be attached to the various sentencing factors such as general deterrence, specific deterrence, the promotion of rehabilitation and the need to protect the community. The balance of the sentencing judgment and a consideration of the sentences imposed leads to the conclusion that either the finding was not taken into account or at the very least there was a failure in this case to explain how it was considered. In relation to the latter, in some cases how such a finding was considered will be implicit. In relation to the former, as observed by Dhanji J, by reference to the passages from Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [46] and Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [57], it does not automatically follow from a finding that an offender’s moral culpability is reduced, that a sentence will be lower than it might otherwise have been, and that is especially so in cases involving domestic violence where a consideration of the need to protect the community is often especially important.

3. [3]

   Otherwise, that the sentencing process went awry in this case is best illustrated by the indicative sentences for sequences 27, 36, 40 and 45 in respect of which, prior to any allowance for the applicant’s plea of guilty, the sentence was at, or very close to, the maximum in circumstances where the finding of objective seriousness could not justify such a sentence (even allowing for the inclusion of offences on a “Form 1”).

4. [4]

   In relation to resentencing, I agree with the indicative sentences proposed by Dhanji J. I also agree that a finding of special circumstances is warranted. However, given the period of time over which the offences were committed and the weight that should be afforded to community protection, I consider that the appropriate aggregate sentence is 8 years imprisonment with a non-parole period of 5 years.

5. [5]

   Accordingly, I propose the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is allowed.

   3. (3)

      The sentence imposed on the applicant by Colefax SC DCJ in the District Court on 9 November 2020 is quashed.

   4. (4)

      In lieu thereof, impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and fix:

6. [6]

   WILSON J: I agree with Dhanji J, save for those matters referred to by Beech-Jones CJ at CL in his judgment. I agree with the matters there raised by his Honour, and the orders proposed by him, for the reasons he has given.

7. [7]

   DHANJI J: The applicant, Mr Spiros Ladas, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence of imprisonment imposed on him by Colefax SC DCJ sitting in the District Court at Campbelltown on 9 November 2020.

8. [8]

   The applicant pleaded guilty to a series of offences that occurred over approximately two and a half years, which were reduced to nine substantive counts, with ten offences taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Form 1 offences”) and one related offence contained on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). The applicant was sentenced to an aggregate term of imprisonment of 10 years commencing on 9 March 2020 and expiring on 8 March 2030, with a non-parole period of 7 years and 6 months expiring on 8 September 2027. A table setting out the offences, the sentencing judge’s finding of objective seriousness with respect to the offence and the indicative sentence (including the starting point), is annexed to this judgment.

9. [9]

   The applicant seeks leave to appeal on the following grounds:

   1. (1)

      The sentencing judge erred in failing to take into account or properly take into account the applicant’s disadvantaged upbringing when considering his moral culpability;

   2. (2)

      The sentencing judge erred in failing to find special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act; and

   3. (3)

      The sentence was manifestly excessive.

Factual background

1. [10]

   It is important to place in context the matters for which the applicant was sentenced. The sentencing judge outlined that context at R v Ladas [2020] NSWDC 832 at [9]-[15]:

2. [11]

   The following is taken from the sentencing remarks. The paragraph numbers refer to the paragraphs in his Honour’s reasons.

3. [12]

   The applicant was also sentenced for sequence 50, an offence of contravening an apprehended violence order before the Court on a certificate pursuant to s 166 of the Criminal Procedure Act:

4. [13]

   The sentencing judge also dealt with the applicant’s breach of a s 9 bond which was imposed on the applicant in the Local Court on 31 January 2017 for an offence of possessing or using a prohibited weapon without a permit, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW). No action was taken on the breach and the matter does not, consequently, form part of this application for leave to appeal.

Proceedings on sentence

1. [14]

   Proceedings on sentence were conducted on 3 November 2020. The Crown bundle contained the notice of committal, charge certificate, s 166 certificate, statement of agreed facts, Forms 1A-1G containing the Form 1 offences, the applicant’s criminal history, custodial history, the sentencing assessment report of Christine Chenoweth dated 5 August 2020, the Crown bundle on the call up of the breach of the Local Court bond and a certificate pursuant to s 35A of the Crimes (Sentencing Procedure) Act. The defence bundle contained three character references, a medical certificate issued by St George Hospital dated 27 May 2020 and a Campbelltown Hospital discharge referral dated 13 August 2020 evidencing that his mother is terminally ill with pancreatic cancer, a community care plan dated 13 May 2019 for Angelo Ladas, his disabled brother, and a report of Angela Parasher, registered clinical accredited mental health practitioner dated 29 September 2020. The applicant and Ms Parasher also gave oral evidence.

2. [15]

   The applicant gave evidence of his drug use from the age of 15, his heavy alcohol use and specifically, the use of cocaine and anti-depressants at the time of the offences. The applicant gave evidence that his drug use ceased before entering custody for these offences and that he had not consumed alcohol for approximately 15 or 16 months.

3. [16]

   In his oral evidence, the applicant also confirmed that the matters contained in the sentencing assessment report accurately reflected what he had told the author of the report. That report stated that trauma led to “unresolved mental health issues at the time of the offences” and noted the use of “numerous substances at the time of the offences and for many years, as a means of escaping reality and coping with trauma he suffered years ago.” The report also outlined that the applicant had engaged in “regular counselling sessions” to “address his trauma after being arrested for [domestic violence] related offences in March 2019 and realising the impact his mental health has had on his increasing aggression and offending behaviour”.

4. [17]

   Although counsel then acting for the applicant sought to ask the applicant about the type of trauma he experienced when he was 17, the applicant was hesitant to elaborate and it appears from the sentencing judge’s interjection at this point that his Honour was prepared to rely on the account outlined in the report of Ms Parasher with respect to this topic. The applicant indicated that he was benefiting from counselling with Ms Parasher with respect to his alcohol and drug dependencies, and dealing with prior trauma, and he indicated a willingness to continue counselling.

5. [18]

   During cross-examination, the sentencing judge asked the applicant whether it was the combination of drugs he was taking at the time that caused him to commit the offences, to which he stated that “[i]t was the anger I had inside” which was the “root of it”. However, he also said that he did not seek to use this anger to justify his actions and expressed his regret for his conduct.

6. [19]

   The report of Ms Parasher set out details of the applicant’s dysfunctional childhood, provided to her by the applicant. The report stated that he experienced “domestic violence while growing up and had been kicked out of the family home at an early age”. This led to homelessness. The report said he was eventually “picked up by a group of people with major addiction concerns”, from which point he was exposed to a number of drugs, was sexually abused, tied up and exploited. Ms Parasher reported that, after freeing himself, the applicant continued to depend on drugs and alcohol to “numb his nightmares [and] flashbacks”, and that he has been angry, volatile, rebellious and aggressive due to the abuse he endured. Ms Parasher found that the applicant “presented [as] extremely remorseful” for his actions.

7. [20]

   While Ms Parasher was cross-examined as to the contents of her report, the cross-examination did not elicit anything of note.

Remarks on sentence

1. [21]

   As noted above, the sentencing judge’s findings of objective seriousness in respect of each of the offences are contained in the table annexed to this judgment.

2. [22]

   With respect to the applicant’s subjective circumstances, his Honour was satisfied on the balance of probabilities that his childhood and adolescence, as captured in the report of Ms Parasher, was dysfunctional, with the result that his moral culpability was reduced. His Honour also noted that this dysfunctional upbringing led to his long-term issues with drugs, although his Honour found that it was the untreated anger within the applicant as a consequence of his dysfunctional background, as opposed to drugs, which was the likely cause of the offending, possibly aggravated by the applicant’s use of steroids at the relevant time. His Honour also noted that, although he found that the applicant had a dysfunctional upbringing with associated untreated anger management issues, he had not been diagnosed by any expert medical practitioner with any condition.

3. [23]

   The sentencing judge additionally found that the applicant was not entitled to leniency as a result of his criminal history (although this was not an additional aggravating factor), that he had developed some, albeit limited, insight into his offending behaviour, and that his expressions of remorse were genuine. His Honour found that his prospects of rehabilitation were presently guarded due to the “limited nature of the counselling to date” and the nature and severity of his dysfunctional upbringing.

4. [24]

   After noting his entitlement to 25% discounts to his indicative sentences on account of his early pleas, and declining to make a finding of special circumstances, his Honour set out the indicative sentences and imposed the aggregate sentence referred to above.

The grounds of appeal

1. [25]

   As noted above, the applicant gave evidence and relied upon a report from Ms Parasher to establish matters with respect to his background, and in particular, the presence of dysfunction and trauma in that background in an attempt to establish that his moral culpability was consequently reduced. The submission was based on the High Court’s decision in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 where the plurality said (at [44]):

2. [26]

   Having found that this Court erred in the application of principle concerning the relevance of the appellant’s deprived background to the sentencing exercise, their Honours noted (at [46]):

3. [27]

   While there was a contest before the sentencing judge as to whether the evidence of trauma and dysfunction should be accepted, that contest was resolved favourably to the applicant and has not been the subject of challenge on this appeal. The sentencing judge said in this regard (at [130]-[136]):

4. [28]

   As set out above, the sentencing judge found that the applicant’s moral culpability was reduced. In these circumstances, a ground which asserts a failure to properly take into account the applicant’s disadvantaged upbringing when considering moral culpability appears, at first blush, ambitious. Despite the manner in which the ground was framed, it is apparent from the submissions that the real complaint was one of error in “failing to account for the applicant’s background and its [e]ffect on [the] assessment of moral culpability such that the sentence imposed was not reduced to reflect that fact”. This has the appearance of a complaint of a failure to give weight to a particular factor. Such complaints are, generally, difficult to establish. As McHugh J said in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], in a passage adopted by the Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26], sentencing by way of instinctive synthesis requires that:

5. [29]

   In a particular case where a discount (here, for the pleas of guilty) was appropriate, that discount is applied to the result of the instinctive synthesis. Further, when sentencing for multiple offences, a judgment will be made with respect to each individual offence and the total. In the present case it might be thought the judge identified the applicant’s background as a relevant factor, discussed its significance (that is, it impacted on the applicant’s moral culpability) and then made a value judgment as to the appropriate sentence with respect to each offence, applied an appropriate discount to arrive at the indicative sentence for the offence, and then made a further judgment as to the appropriate total.

6. [30]

   However, as can be seen from the table annexed to this judgment, the indicative sentences with respect to sequences 27 and 36 were arrived at from a starting point of five years, which was the maximum available penalty. There was no suggestion that these offences were so grave as to warrant the imposition of the maximum penalty, prior to the application of the discount for the plea: see The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [17]-[20]. The findings of objective seriousness did not put these offences at the top of the range for such offending. Nor were the applicant’s subjective circumstances unworthy of consideration.

7. [31]

   The appeal is, of course, sought to be brought against the aggregate sentence and not the indicative sentences. However, the requirement to specify indicative sentences is "clearly directed to ensuring transparency in the process of imposing an aggregate sentence and in that connection, imposing a discipline on sentencing judges": Khawaja v R [2014] NSWCCA 80 at [18]; see also JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [39]. It is consequently permissible to have regard to the indicative in the context of a complaint about the total: Kliendienst v R [2020] NSWCCA 98 at [76]-[103].

8. [32]

   It is true that there were Form 1 matters attached to each of sequence 27 and 36. In relation to sequence 27, sequences 28 and 29 were taken into account. His Honour regarded the former as requiring a “slight increase” in the penalty for the principal offence and the latter as requiring a “significant” increase in the penalty. Sequence 36 took into account sequence 53 which his Honour said warranted a “meaningful” increase in the penalty for the principal offence. Putting to one side whether multiple Form 1 offences (as was the case in sequence 27) can have differential impacts when considering the weight to be given to personal deterrence and retribution for the principal offence, the fundamental principle is that, while regard is had to the Form 1 matters, the sentence is the punishment for, and merited by, the principal offence. To start at the maximum for an offence that is not at the top of the range of objective seriousness offends the principle of proportionality. In addition, it is difficult to see, given these starting points, how the finding of reduced moral culpability was taken into account, at least with respect to these counts.

9. [33]

   The respondent relied on a subsequent paragraph in his Honour’s reasons where he said (at [143]):

10. [34]

    In Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 which was handed down on the same day as Bugmy, the High Court was concerned, as was the case in Bugmy, with an Aboriginal offender who had, as a child, been exposed to the “negative influences of alcohol and family violence” (at [17]). The offence in that case was the manslaughter of the appellant’s de facto spouse. The majority found in the circumstances of that case (at [57]) that:

11. [35]

    The Western Australian Court of Appeal had found the sentence imposed at first instance to be manifestly inadequate: see The State of Western Australia v Munda (2012) 43 WAR 137; [2012] WASCA 164. In reaching this conclusion, McLure P (with whom Mazza JA agreed) found at [67] of the Court of Appeal judgment that the appellant was not “raised in circumstances of such deprivation and difficulty as to render his addictions mitigatory”. Her Honour held (at [68]) that the sentence at first instance failed to “give due recognition to the seriousness of the offence, the seriousness of the circumstances in which it was committed and the need for both personal and general deterrence”. The other member of the Court, Buss JA, found (at [134]) that, to the extent that the appellant’s personal circumstances were relevant, they were “decisively outweighed by other sentencing factors (namely, the protection of vulnerable women, personal deterrence and general deterrence) in the context of the very serious nature of the offending” and the appellant’s criminal history. The majority of the High Court found no error in the Court of Appeal’s exercise of its sentencing discretion which warranted its interference with the sentence and accordingly affirmed the Court of Appeal’s decision.

12. [36]

    It can be seen from the above that there will be cases in which the mitigatory impact of a dysfunctional background on a sentencing purpose will be counterbalanced by an increased need for weight to be given to other purposes of sentence, most commonly the protection of the community and personal deterrence. Indeed, the same observation was made in Bugmy at [44]-[45], with reference to the well-known observations of Gleeson CJ in R v Engert (1995) 84 A Crim R 67. And, while their Honours observed (at [44]), that the effects of profound deprivation do not diminish with the passage of time and that such a background should be given “full weight” in every sentencing decision, their Honours continued:

13. [37]

    The difficulty in the present case is that the sentencing judge, having found that the applicant’s moral culpability was reduced and would be taken into account “in the manner that the High Court of Australia has directed”, did not qualify or otherwise explain the relevance of this factor. There is admittedly, some force in the Crown’s argument that his Honour’s observation that “both specific and general deterrence are fully engaged” could be read as a finding that the significance of the applicant’s reduced moral culpability was effectively counterbalanced, not unlike the reasoning of the Western Australian Court of Appeal in Munda. However, this was not articulated. Further, immediately following the reference to specific and general deterrence being fully engaged, his Honour said “[t]he need to encourage your rehabilitation is also fully engaged” (at [143]). It is not possible to reconcile the statement that the applicant’s reduced moral culpability would be taken into account, and the “full” engagement of rehabilitation, with a starting point at the maximum for two offences, despite his Honour’s references to the “full” engagement of general deterrence and specific deterrence.

14. [38]

    The present case can be distinguished, in the above regard, from a case such as BT v R [2019] NSWCCA 147 (see at [26]-[30]). It might also be distinguished on the basis that, in BT, there was no evidence of remorse, the offender had a low level of insight into his offending, a substance abuse problem, a sexual interest in underage girls (in the context of a sexual offence committed against a child) and had not engaged in any rehabilitation program, such that his prospects of rehabilitation were described as “regrettably not good”. That was a case where this Court found it was open to the sentencing judge to give weight to general and personal deterrence. Here, however, even if the judge was entitled to give weight to general and personal deterrence, a starting point that was the maximum penalty in relation to two of the indicative sentences, prior to the application of the discount for the guilty plea, indicates that, contrary to the sentencing judge’s expressed intention, the applicant’s background was given no weight at all.

15. [39]

    The reasoning above applies directly to sequences 27 and 36, but also, inferentially to the other offences. There is no reason to think the applicant’s reduced moral culpability was applied differentially across the offences. In any event, an error in failing to have regard to a relevant consideration in relation to a single offence is sufficient to vitiate the sentence imposed.

16. [40]

    Having regard to the reasoning above, it may be that the ground could have been argued on the basis that any of the apparently mitigatory matters established was not taken into account. Be that as it may, I am satisfied that the applicant has established error on the basis of a failure to account for the applicant’s reduced moral culpability in the commission of the offences. Ground 1 is made out.

17. [41]

    Having regard to the view I have reached in relation to ground 1, it is necessary to re-exercise the sentencing discretion, and this ground can consequently be dealt with relatively briefly. This ground complains that the sentencing judge erred in failing to find special circumstances for the purposes of s 44(2B) of the Crimes (Sentencing Procedure) Act. Such a finding would have enabled a reduction to the non-parole period to a level below 75% of the total sentence. It cannot be reasonably disputed that a finding of special circumstances could have been justified on the facts of the case (as is true in most cases). This enlivened a discretion, rather than mandated a finding of special circumstances. In R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534, Spigelman CJ said (at [73]):

18. [42]

    In the present case the sentencing judge was of the view that a period of 2 years and 6 months provided a sufficient parole period to meet the circumstances of the case. This finding was open. Ground 2 is not made out.

19. [43]

    Having regard to the need to re-exercise the sentencing discretion, it is unnecessary to determine this ground.

Resentence

1. [44]

   The facts of each offence have been set out above. The applicant committed a large number of serious offences against his domestic partner over a period of some two and a half years. While the offences are of varying levels of seriousness, each of them must have had a terrible impact. Further, the applicant engaged in the manipulation of the victim in order to maintain the relationship, only to engage in further violent abuse. The cumulative impact of his offending on the victim can only have been significant.

2. [45]

   The majority of the offences were committed in the victim’s home. It is only sequence 12 (an offence of intimidation involving the sending of text messages), sequence 43 (the menacing driving with intent charge) and sequence 50 (the contravention of the apprehended violence order offence on the s 166 certificate) that were not. While the sentencing judge regarded the commission of offences in the victim’s home as an aggravating factor, the seriousness of the offences is, to my mind, better informed by the domestic relationship between the applicant and the victim involving, as it did, trust and consequent vulnerability. It was a corollary of these factors that resulted in the victim being assaulted in her own home, but which also informed the insidious nature of the offences committed outside the home.

3. [46]

   The findings of the sentencing judge as to objective seriousness made at first instance have not been challenged, though I note that none of the offences were standard non-parole period offences such that, while it was necessary to assess the objective gravity of the offence, it was not necessary to express any such finding in standard non-parole period terms. In relation to the assault occasioning actual bodily harm offences, the degree of injury varied but was not, in any case, at the upper end of actual bodily harm, noting that such injuries include all injuries up to the level of grievous bodily harm. The level of injury in each case is, perhaps only through good fortune, generally the primary factor in the applicant’s favour in the assessment of objective gravity. This is qualified by noting that in the case of sequence 36, the pain that resulted lasted for some three months. It should also be noted that, in the case of sequence 36, some care also needs to be taken that, to the extent the complainant was choked such that she was rendered incapable of resisting, the applicant was not to be punished for an offence against s 37(1) of the Crimes Act 1900 (NSW): The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31, and see the recent decision of GS v R; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65 as to the meaning of “chokes” for the purposes of that offence.

4. [47]

   Sequence 17 and the principal offences committed thereafter, were all aggravated by the fact the applicant was on conditional liberty, that being a good behaviour bond with respect to an offence of possessing a prohibited weapon without a permit which was in place from 31 January 2017 to 30 January 2019. (The only offence in relation to which the applicant was not on conditional liberty was sequence 49 which was on a Form 1 attached to sequence 52.)

5. [48]

   In relation to sequence 50 (the s 166 matter) there is no evidence as to the content of the message the applicant sought to indirectly send to the complainant, and certainly no suggestion it was in any way threatening.

6. [49]

   The applicant is now 39 years of age. He was 33 years old at the time of the first offence and 36 at the time of the last offence. The applicant’s criminal record at the time of the offending was not particularly lengthy. Significantly, while the applicant had served a sentence of imprisonment for the supply of drugs there was only one entry for an offence of violence, an offence of assault occasioning actual bodily harm committed in 2001 in relation to which he received a fine. Subsequent to the commission of the present offences the applicant was convicted of an offence of stalk or intimidate committed in March 2019, and was charged with contravening an apprehended violence order and a further offence of stalk or intimidate in April 2019. While I do not regard the subsequent offending as having a significant bearing on the exercise, I regard the applicant’s record as such as to disentitle him to leniency.

7. [50]

   I have regard to the applicant’s reduced moral culpability as a consequence of his background. I would, as a result, ameliorate to some extent the role of general deterrence. I would also ameliorate the weight given to retribution, though I hasten to add that that reduction is attenuated in the case of the offences to which Form 1s attach, and in any event, such reduction should not, in my mind, be significant. Having regard to the serious nature of the offending, general deterrence and retribution must continue to have a role. Personal deterrence is also of significance, although the sentence required on the basis of the purposes of sentencing already discussed, and my view as to his prospects of rehabilitation discussed below, are such that I would not give this factor additional weight.

8. [51]

   The sentencing judge found the applicant to be remorseful, a finding which has not been challenged. Clearly, the applicant was not sufficiently affected by remorse to desist from the course of assaults in which he engaged over the period of the offending. However, I accept that his arrest and prosecution has brought about a realisation of the wrongfulness of his conduct. This is supported by the applicant’s evidence before the sentencing judge. Further, the pleas of guilty spared the victim from giving evidence. Those pleas were also entered in circumstances where the prosecution case was, in relation to the majority of the offences, reliant on a single witness and where some time had elapsed between the event and the police investigation. I am, having regard to these matters, satisfied the applicant is genuinely remorseful for his actions.

9. [52]

   The applicant gave evidence that he had been drug free from a time before entering custody as a result of his arrest in May 2019, a period of some 16 months (although the applicant was in custody for approximately three and a half months before being granted bail). Similarly, he said he had not consumed alcohol for about 15 or 16 months. He said he was anxious to continue counselling with Ms Parasher. Having regard to this evidence, and to my finding above with respect to remorse, the applicant’s record and his age, I regard the applicant as having reasonable prospects of rehabilitation. It is difficult to be more optimistic, having regard to the offences and the lengthy period over which they were committed. Much will also depend on the applicant continuing to manage his issues with addiction.

10. [53]

    I have regard to the maximum penalty in relation to each offence. In relation to the Form 1 offences, those matters will be taken into account to increase the weight given to personal deterrence and retribution with respect to each corresponding principal offence. Community protection is also entitled to weight. The nature of the crimes is such that I regard it as important to recognise the harm done to the victim and the community more generally. In the case of each offence, having regard to the context in which it is being considered (that is, sentencing for multiple offences), there can be no question that there is no alternative to a sentence of imprisonment. As noted above, the sentencing task requires consideration of each offence prior to the application of the discount for the applicant’s pleas of guilty.

11. [54]

    I propose an aggregate sentence. I regard the following indicative sentences as appropriate.

    1. (1)

       In relation to sequence 51, using an offensive weapon with intent to commit an indictable offence (intimidation), taking into account the offences on the Form 1 (sequences 5 and 6, both offences of assault occasioning actual bodily harm), I regard an appropriate sentence to be one of 3 years. After application of a discount of 25% the indicative sentence is 2 years and 3 months.

    2. (2)

       In relation to sequence 10, assault occasioning actual bodily harm, taking into account the offences on the Form 1 (sequences 12 and 13, intimidation and assault occasioning actual bodily harm), I regard an appropriate sentence to be one of 2 years. After application of a discount of 25%, and with rounding, the indicative sentence is 18 months.

    3. (3)

       In relation to sequence 17, assault occasioning actual bodily harm, taking into account the offences on the Form 1 (sequence 22, assault occasioning actual bodily harm), I regard an appropriate sentence to be one of 2 years. After application of a discount of 25%, and with rounding, the indicative sentence is 18 months.

    4. (4)

       In relation to sequence 25, intimidation, I regard an appropriate sentence to be one of 2 years. After application of a discount of 25%, and with rounding, the indicative sentence is 18 months.

    5. (5)

       In relation to sequence 27, assault occasioning actual bodily harm, taking into account the offences on the Form 1 (sequences 28 and 29, damage property and a common assault), I regard an appropriate sentence to be one of 2 years and 6 months. After application of a discount of 25%, and with rounding, the indicative sentence is 1 year and 10 months.

    6. (6)

       In relation to sequence 36, assault occasioning actual bodily harm, taking into account the offence on the Form 1 (sequence 53, assault occasioning actual bodily harm), I regard an appropriate sentence to be one of 2 years and 6 months. After application of a discount of 25%, and with rounding, the indicative sentence is 1 year and 10 months.

    7. (7)

       In relation to sequence 40, intimidation, taking into account the offence on the Form 1 (sequence 43, menacing driving with intent), I regard an appropriate sentence to be one of 2 years and 6 months. After application of a discount of 25%, and with rounding, the indicative sentence is 1 year and 10 months.

    8. (8)

       In relation to sequence 45, intimidation, I regard an appropriate sentence to be one of 2 years and 6 months. After application of a discount of 25%, and with rounding, the indicative sentence is 1 year and 10 months.

    9. (9)

       In relation to sequence 52, using an offensive weapon with intent to commit an indictable offence (intimidation), taking into account the offence on the Form 1 (sequence 49, common assault), I regard an appropriate sentence to be one of 3 years. After application of a discount of 25% the indicative sentence is 2 years and 3 months.

    10. (10)

        In relation to sequence 50, contravention of the apprehended violence order on the s 166 certificate, I regard an appropriate sentence to be one of 6 months. After application of a discount of 25% and rounding down, the indicative sentence is 4 months.

12. [55]

    Having regard to the related nature of the offending there will be a degree of notional concurrence between these indicative sentences. The sentencing judge backdated the sentence to allow for the applicant’s pre-sentence custody and a period on strict bail that was treated by the judge as “quasi-custody”. It is appropriate that the same date be adopted. I would impose a total sentence of 6 years. I would find special circumstances having regard to the applicant’s need for treatment with respect to his issues arising from his background and related drug addiction.

13. [56]

    I propose the following orders:

    1. (1)

       Leave to appeal is granted.

    2. (2)

       The appeal is allowed.

    3. (3)

       The sentence imposed on the applicant by Colefax SC DCJ in the District Court on 9 November 2020 is quashed.

    4. (4)

       In lieu thereof, impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and fix: