Taitoko v R

1. [1]

   HOEBEN CJ at CL: I agree with the reasons and orders proposed by Leeming JA. I particularly endorse the observations by his Honour at [88] of his judgment and would go further than his Honour in his criticism of some of the submissions made on behalf of the applicant. In my opinion, proposed grounds 2, 3, 4, 5, 6 and 7 lack underlying merit and fall short of the standards this court expects of submissions advanced by counsel.

2. [2]

   LEEMING JA: Mr Tamaiti George Taitoko seeks leave to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against a sentence imposed by the District Court on 23 November 2018. He had pleaded guilty to five offences, based on conduct which took place during a period lasting just over an hour, between around 4:15 pm and 5:20 pm on 8 February 2017. There were four separate victims, whom I shall call Ms R, who worked in the Grand Hotel in Wyong, Mr H, a man who was sitting on the platform of Wyong train station, and Mr M and Ms A, who were driving along River Rd that afternoon. The two women were threatened, and were fearful for their safety; one had a drink poured on her. The two men were (separately) punched in their heads, causing wounds which required medical attention.

3. [3]

   The five offences to which the applicant pleaded guilty were:

   1. (1)

      One count of intimidation intending to cause fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which carries a maximum penalty of 5 years imprisonment and/or a fine of 50 penalty units; this related to Ms R;

   2. (2)

      Two counts of reckless wounding, first of Mr H, and secondly of Mr M, contrary to s 35(4) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 7 years imprisonment with a standard non-parole period of 3 years;

   3. (3)

      One count of common assault, relating to Ms A, contrary to s 61 of the Crimes Act 1900 (NSW) which carries a maximum penalty of 2 years imprisonment.

   4. (4)

      One count of destroying or damaging property contrary to s 195(1)(a) of the Crimes Act 1900 (NSW). This was a related offence brought before the court pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW), based on the damage to a glass window and the aluminium framing on a door of the Grand Hotel.

4. [4]

   After applying a 25% discount for his guilty pleas, the applicant was sentenced to an aggregate term of 4 years imprisonment with a non-parole period of 2 years and 8 months.

5. [5]

   In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge indicated the separate sentences which would have been imposed had an aggregate sentence not been employed. Those indicative sentences were as follows (in each case after a reduction of 25% for the plea): 9 months imprisonment for the intimidation, 2 years imprisonment with a non-parole period of 16 months for each of the reckless wounding counts, 6 months imprisonment for the common assault, and 3 months imprisonment for the destroy or damage property offence.

6. [6]

   The applicant was arrested shortly after the offending conduct, and had been remanded in custody for 240 days until granted bail by the Supreme Court on 5 October 2017. He continued on bail until sentenced slightly more than a year later, on 23 November 2018. The sentence was backdated by 240 days to commence on 28 March 2018. Accordingly, the sentence expires on 27 March 2022, with the non-parole period expiring on 27 November 2020.

7. [7]

   A notice of appeal against sentence was filed on 15 October 2019. This was almost one year after sentence was imposed, and more than 18 months after the sentence was taken to have commenced. One consequence of that delay was that the majority of the original non-parole period had already been served by the time the notice of appeal was filed.

8. [8]

   The notice contains nine proposed grounds of appeal:

9. [9]

   The nature of many of those proposed grounds (including 2, 3, 4, 7 and 9) is such that it will be necessary to deal in some detail with the evidence and submissions before the sentencing judge, as well as with the basic facts of the offending. In particular, proposed ground 7 requires attention to the so called “agreed” facts, and the written and oral submissions which sought to go beyond those facts.

10. [10]

    These reasons adopt the following structure:

    1. (1)

       they deal with the “Agreed Facts” and the attempts taken to expand upon and depart from that document;

    2. (2)

       they deal with the admission of the photographs (relevant to ground 4), the testimonial evidence of the applicant concerning provocation (relevant to ground 7) and the psychologist’s report (relevant to ground 9);

    3. (3)

       they summarise the reasons given by the sentencing judge, relatively briefly;

    4. (4)

       they then deal with the grounds of appeal, summarising within each ground the parties’ submissions and the relevant reasons of the sentencing judge;

    5. (5)

       finally, they explain the resentencing which I have concluded is warranted by reason of ground 1.

The “Agreed Facts” and the attempts to depart from them

1. [11]

   An document titled “Agreed Facts” was tendered at the sentencing hearing. It is best to reproduce that short document in its entirety:

2. [12]

   It will be seen that the Agreed Facts is a brief document. The transcript records that it was tendered in unsigned form, and was signed by the applicant early on in the sentencing hearing on Friday 2 November 2018. The applicant was represented at the sentencing hearing, and, according to the transcript, by the same counsel and solicitor who were involved with negotiating the Agreed Facts.

3. [13]

   However, the applicant, by his counsel, sought to depart from some aspects of the Agreed Facts and to give further context by way of explanation and mitigation, to those facts.

4. [14]

   Brief written submissions of just over four pages signed by counsel on behalf of the applicant, dated 1 November 2018, were provided which (a) went considerably beyond the Agreed Facts, and (b) repeatedly referred to provocation. It is necessary to summarise them in some detail.

5. [15]

   The first two pages summarised the offending and emphasised that all of it could have proceeded in the Local Court. The submission continued with a statement that “the facts are in essence, not in dispute” and an acknowledgment that “the offender had been drinking to excess and behaved appallingly”. It was said that while there was no excuse for such behaviour, “some of it can be explained by his personal situation, his psychological background and of course, the excessive drinking”. If the submissions had gone no further, then the issue concerning provocation, giving rise to proposed ground 7, would not have arisen.

6. [16]

   In relation to the first offence, which took place in the Grand Hotel in Wyong, it was said that:

7. [17]

   In relation to the assault upon Mr H, it was submitted that “[i]nstructions received from the offender are that the other friend reported to the offender that [Mr H] was a paedophile” and that his estranged partner had taken up with another man and it had been reported to the offender that this other man had interfered sexually with the offender’s son. The submissions continued:

8. [18]

   The submissions did not in terms assert “provocation” in respect of the reckless wounding of Mr H.

9. [19]

   In relation to the reckless wounding of Mr M, the submissions proceeded thus:

10. [20]

    The written submissions referred to the offender’s age, that he had felt depressed, particularly with respect to his son, and had been drinking heavily. The submissions continued:

11. [21]

    The submissions referred to the early guilty plea, the fact that the offender had been at liberty for over a year without engaging in criminal conduct, but instead had been “trying to sort through issues in his life to ensure that this conduct will not be repeated” and had engaged a psychologist to work through these issues in a structured fashion. Reliance was placed upon the offender suffering from a mental illness or condition at the time and reference was made to his strong community ties and his dedication to his parents and to his son. It was said that he had accepted responsibility for his actions and acknowledged the injury or damage he had done, that he had good prospects of rehabilitation, was unlikely to reoffend, and had accepted that “his self-induced intoxication whilst not a mitigating factor does help to explain his conduct, particularly when viewed with his mental state”.

12. [22]

    It will have been seen from [19] above that the applicant’s submissions stated of the injury to Mr M that “[t]he wound, in essence, amounts to a split lip”. At the commencement of the sentencing hearing, the Crown tendered three photographs which became Exhibit C. They were one photograph of Mr M and two of Mr H, taken at 4:30 pm and 8 pm on 8 February 2017, shortly after the offending, depicting the wounds to their lip and eyelid respectively.

13. [23]

    These photographs relate to proposed ground 4, which asserts that the photographs “were tendered over initial objection”. The transcript does not bear that out. The Crown is recorded as stating:

14. [24]

    The transcript then records the following:

15. [25]

    The Crown then explained the purpose of the tender:

16. [26]

    At the completion of the documentary tender, there was a final exchange concerning the photographs:

17. [27]

    The notion that there was any objection – whether that be an “initial objection” or otherwise – has no foundation in the evidence, despite the formulation of proposed ground 4.

18. [28]

    Thereafter, the Crown stated that it had “particular concern about most of the material referred to as page 3 of Mr Russell’s submissions”, and in particular “the generalised submission in relation to there being some provocation on the part of every victim of all these offences”. The sentencing judge then said “it seems a very ambitious submission”. The Crown then said that in its submission “there is absolutely no evidence, either in the agreed statement of facts or in the police brief of evidence that there was any provocation by any of these victims and the offences cannot be characterised as anything other than unprovoked [and] random”. The sentencing judge asked whether, if that submission was pressed, the Crown wished to adduce evidence as to those matters, and the Crown said that Mr Russell had been put on notice the previous day that he would be objecting to those portions of the submissions, and if he was intending to rely upon them then the offender would need to give evidence about it.

19. [29]

    The Crown and the sentencing judge then reviewed the portions of the written submissions dealing with provocation, which have been reproduced above.

20. [30]

    The first point that Mr Russell raised was that there had been a misunderstanding of his client’s instructions and that he had been told that his son had been physically abused, rather than sexually abused. The sentencing judge then observed that it would be necessary for the offender to give evidence of the matters in the written submissions which were said to be on instructions, and Mr Russell confirmed that evidence could be given of that. That occurred, the evidence was adduced, and no complaint was made of this.

21. [31]

    The sentencing judge then turned to provocation. It must have been obvious to Mr Russell from the exchange between the sentencing judge and the Crown that there was perceived to be some difficulty in the submissions on provocation. The following exchange warrants reproduction in full.

22. [32]

    On the question of “provocation” concerning the assault of Mr H, Mr Russell confirmed that the provocation was not said to have come from the victim, but from one of the people on the train station who had said that Mr H was a paedophile. There followed this exchange:

23. [33]

    In relation to the offending involving Mr M and Ms A, there was this exchange:

24. [34]

    Thereafter, the sentencing judge offered an adjournment so that Mr Russell could get instructions and could then call his client.

25. [35]

    What was put forward was on any view a significant reformulation of the primary facts relevant to the offending. The exercise of the sentencing discretion would have been quite different if the heavily intoxicated applicant had been provoked by each of his victims. Notwithstanding the reformulation, the sentencing judge was minded – no doubt because of its obvious importance to sentence – to permit this case to be advanced.

26. [36]

    The submissions made in this Court appear not to appreciate the role of the Agreed Facts:

27. [37]

    The impression with which I am left from this exchange, combined with the transcript of the sentencing hearing, is that counsel appearing for the applicant was and continues to be unaware of the effect of his client agreeing to facts for the purpose of sentencing. In particular, it is difficult to understand how on the same morning, the applicant actually signed in the presence of his lawyers the document which had previously been negotiated by them with the Crown, and his counsel then articulated and maintained a case which went materially beyond that document.

28. [38]

    The point of signing the Agreed Facts was for that agreement to bind the applicant and to form the foundation of the sentencing discretion. It is ordinarily quite wrong for submissions to be made contrary to facts to which an offender has agreed. There can be no proper basis for criticism if evidence is adduced contrary to what the offender has agreed (and in the present case, had signed with legal assistance earlier that morning) for that evidence to be tested against the document to which the offender had adhered.

29. [39]

    The applicant made an affidavit in which he said how disgusted he was with himself for his behaviour, how ashamed of himself he was and how deeply sorry he was for the pain and suffering he had caused. He said that there was no excuse for what he had done. He referred to the impact his behaviour had on people he had never met. He said he wished he could see them and apologise to them. As the sentencing judge observed, these unqualified expressions of responsibility were in contrast with the submissions made on his behalf concerning provocation.

30. [40]

    He said that in addition to the people he had threatened or injured, his actions had had a deep impact on his family. The 240 days he had spent in custody had been a period during which he had been unable to work and provide for his family, especially his son. He said that his son had been a good student, and that prior to spending time in gaol he had been able to provide him with emotional support and encourage him towards achieving good grades. He said that “he is a boy who can lack the self-esteem and this can adversely affect the level of effort”, and that it was the applicant’s own fault that his grades had gotten so bad. He said that “I am meant to teach him how to be a man and how to behave in this world. I have failed at this”.

31. [41]

    He confirmed that he had been seeing the psychologist Mr Cohen to address those issues, including by providing him with anger management counselling. He confirmed the accuracy of what he had told Mr Cohen.

32. [42]

    He had been able to find work after being released on bail. He concluded:

33. [43]

    The applicant gave evidence at the sentencing hearing. Much of this was led from him in chief about the events preceding the offending conduct, which was consistent with the written submissions, but contrary to, or omitted from, the Agreed Facts.

34. [44]

    The applicant elaborated on the circumstances preceding each of the instances of offending conduct. He said that he got upset when told to leave the hotel by Ms R “Because she was talking down to me and it felt like everyone was just putting shit on me all the time”. He said that he was told by an unknown person that Mr H was a “paedophile”, that he asked Mr H whether he was a paedophile and that Mr H “looked in my eyes and didn’t say anything”, and in response the applicant thought “Why is he not denying it? Because if it was me I would deny it and I would be angry that someone was asking me about that”. In relation to Mr M, he said that he was “jerking the car forward as if he was going to run me over”, and that “his girlfriend told me to get the fuck off the road”, and that Mr M “started going off at me” and told him to get off the road.

35. [45]

    Almost all of this was absent from the Agreed Facts. In cross-examination, the applicant agreed that he had a poor recollection of the events of that afternoon, having had between 15 and 20 full strength beers since 10am that morning (in examination-in-chief, he had said that he had moved on to “bourbons” – presumably a reference to the pre-mixed drink he poured onto Ms A). The cross-examination dwelt on the absence of the exculpatory material from the Agreed Facts. The applicant accepted that particularly after leaving the hotel, having had 15 to 20 drinks of full-strength beer, he really had no recollection of events.

36. [46]

    In the course of that cross-examination, there was the following objection:

37. [47]

    The applicant was 31 years of age at the time of sentence. He had a minor criminal history which the sentencing judge considered irrelevant.

38. [48]

    A history taken by a psychologist stated that the applicant was adopted at 6 weeks and had had no contact with his birth parents, which he stated was distressing for him. Since leaving school he had worked in asphalting, vinyl laying and steel stressing. The report stated that the applicant “has a number of diagnosable mental illnesses which range from alcohol abuse to intermittent explosive disorder”. He purported to apply “the Psychiatric Handbook DSMV”, presumably a reference to the 5th edition of the Diagnostic and Statistical Manual of Mental Disorders prepared by the American Psychiatric Association. Mr Cohen held a Bachelor’s Degree in Arts, with honours in Psychology, and a Master’s Degree in Psychology. There is nothing to suggest he had any medical or psychiatric training.

39. [49]

    According to Mr Cohen’s report, the applicant had been in a relationship for three years between 2007 and 2010. There was one child of that relationship who was nine years old at the time of sentencing. The applicant had a close relationship with the child. There was a period of separation where the applicant did not see the child for extended periods in the context of asserted breaches of family court access orders. Court intervention was required to restore the applicant’s access rights. The sentencing judge noted that these matters had a negative impact on the applicant’s mental health due to the stress and cost of the legal process.

40. [50]

    The applicant remained in custody for 240 days and was then released on bail. During his time in custody the applicant’s child’s school performance suffered and the applicant could not provide emotional support for the child.

41. [51]

    The applicant reported to Mr Cohen that the circumstances around the offending behaviour were that he had “been drinking from 10 am, trying to relax from the family legal issues”, that he “went into a rage”, and that he rarely drank but does “binge from time to time, ten to twenty-full strength beers”.

42. [52]

    The report was tendered without objection, but accompanied by a warning that it should be given “such weight as it deserves”.

43. [53]

    In addition to the Mr Cohen’s report, a sentencing assessment report from an officer at Community Corrections at Wyong was tendered. It was more guarded in its assessment of the applicant’s remorse and prospects of rehabilitation. It also contained some mistakes, and led to its author (who had almost finished a criminal justice degree) giving evidence and being cross-examined. The report stated “Mr Taitoko has a minimal criminal history, although appears to show an escalation to his offending behaviour”. Its author confirmed that he had not meant to suggest that over time the offending had been increasing on some sort of progressive scale, but merely that the current offending was worse than anything that had preceded it.

44. [54]

    The report also recorded that the applicant had “failed to identify the causes to his aggression”, stating that he was “too intoxicated to remember”, and that the applicant “appeared unable to demonstrate any insight to the impact of his offending upon the victim”.

The reasons of the sentencing judge

1. [55]

   The sentencing proceedings evidently went for most of Friday 2 November 2018 (the short cross-examination of the author of the sentencing report is recorded as starting at 3.10pm, after which submissions resumed). The judge reserved his decision until 23 November 2018. On that day, the sentencing judge summarised the offences to which the applicant pleaded guilty, the evidence and read extensively from the Agreed Facts. His Honour noted that the applicant’s counsel had “attempted to downplay the responsibility of his client by suggesting there was some provocation”, and said that he would return to this. His Honour rejected the factual case which had been sought to be established going beyond the Agreed Facts, and no issue was taken with this in this Court.

2. [56]

   The sentence judge identified the elements of the offences (one aspect of which is relevant to proposed ground 2) and then addressed objective seriousness at [32]-[42]. What was said in that section concerning the photographs is relevant to proposed grounds 4 and 5. Relevantly to proposed ground 7, his Honour rejected the submission based on provocation “without any hesitation”.

3. [57]

   The sentencing judge regarded the intimidation offence as falling at the “lower end of the mid-range”, the common assault was in the low range, and the two counts of wounding both fell in the mid-range.

4. [58]

   In relation to the applicant’s subjective case, the primary judge summarised what had been reported to Mr Cohen and confirmed by the applicant in evidence. His Honour referred to the references which related to proposed ground 8, and then referred to his remorse, as follows:

5. [59]

   The sentencing judge addressed the conflict in evidence between the offender and the author of the sentencing assessment report, concluding:

6. [60]

   The sentencing judge then addressed Mr Cohen’s report, and his lack of relevant expertise, and the role of mental illness in sentencing, to which reference will be made when dealing with proposed ground 9. His Honour’s conclusion was that he treated Mr Cohen’s report “with great caution, particularly in the absence of any contemporaneous medical records suggesting the Offender was suffering from any psychiatric condition at the time”.

7. [61]

   The sentencing judge made a finding of good character, noted the evidence of remorse, found that the prospects of successful rehabilitation were “just moderate”, with moderate likelihood of re-offending. His Honour found special circumstances, and imposed an aggregate sentence for reasons to which I shall return.

The proposed grounds of appeal

1. [62]

   The first proposed ground is that the sentence was manifestly excessive. That ground reflects what Dixon, Evatt and McTiernan JJ said in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40:

2. [63]

   In Dinsdale v The Queen (2000) 202 CLR 321 at 325; [2000] HCA 54, Gleeson CJ and Hayne J pointed out that manifest excess

3. [64]

   However, it has been said that the identification of specific error may assist to explain why a sentence is manifestly erroneous (see, in the context of Crown appeals on the basis of manifest inadequacy, R v Harris [2015] NSWCCA 81 at [46] and R v AB [2017] NSWCCA 88 at [58]). It follows that it is appropriate first to address the various grounds involving patent error.

4. [65]

   These four related grounds go to the same issue, namely, the way in which the primary judge assessed the objective seriousness of the two most serious charges, the counts of reckless wounding.

5. [66]

   Proposed ground 2 was not based on any submission made in advance of or during the sentencing hearing. After his Honour had reserved his decision, counsel for the applicant supplied a further two-page submission, dated 8 November 2018. This occurred without leave being given or sought, although seemingly with the consent of the Crown. In this Court, Mr Russell maintained that he was entitled to take that course.

6. [67]

   It seems necessary to reiterate what was put by Mason J in Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 at 258; [1981] HCA 20:

7. [68]

   It would have been open to the sentencing judge to ignore the unsolicited submission, supplied without leave and unaccompanied by any application for leave. However, his Honour said that he had received the supplementary submission, marking it MFI 3, and considered it.

8. [69]

   The supplementary submission devoted precisely one sentence to this point, as follows:

9. [70]

   The sentencing judge said that he had regard to the elements of the offence, and correctly observed that “wounding” occurred as a result of the breaking or cutting of the interior layer of the skin and the breaking of the outer layer, and that the injuries suffered by Mr M and Mr H were wounding.

10. [71]

    That is entirely correct. “Wounding” remains undefined in the Crimes Act, but in Shepherd at [31] Kirby J referred to authorities to the effect that a wounding was generally “the infliction of an injury which breaks the continuity of the skin”.

11. [72]

    It by no means followed that the wounding of Mr H and Mr M was wounding in “the most technical sense”. The laceration suffered by Mr H to his upper eyelid was so deep that it exposed muscle and required five stiches. Mr M’s laceration above his lip extended almost to his nose and required closure. Neither wound is fairly described as a “split lip” or a “split eyelid”, and both required medical attention.

12. [73]

    The sentencing judge quoted the records of the injuries in Mr H’s discharge referral from Wyong Hospital, and in Mr M’s presentation at the hospital, expressly. Thus the primary judge considered the elements of “wounding” and explained, contrary to what was implicit in the supplementary submission supplied by the applicant’s counsel, how the injuries sustained by each of Mr H and Mr M were more serious than a “technical” wounding.

13. [74]

    The applicant tendered two medical reports without objection, towards the conclusion of the hearing, saying that “I forgot to tender two medical reports”. Thereafter, no mention was made in oral submissions (or in the supplementary written submissions) of either report.

14. [75]

    That is an unpromising start to a proposed ground 3, which is based on a failure to consider the two documents. Ordinarily, in order to make out such a ground, it is necessary for the judge exercising a discretion to have been directed to the documents. In Hanna v Environment Protection Authority [2019] NSWCCA 299, Macfarlan JA (with whom Walton and Bellew JJ agreed) said at [35]-[37]:

15. [76]

    Both reports were in familiar form, recording care administered by nursing and medical staff upon each patient. Neither report demonstrates that the injuries suffered by Mr H or Mr M were not serious. Contrary to one matter on which reliance was placed, the fact that a nurse recorded Mr H as saying that he was “happy to wait in the waiting room” at the hospital does not detract from the seriousness of his injury (and in any event, little turns on that without knowledge of the circumstances of the other patients who were waiting in the Emergency Department). It was no part of the function of those documents to record an opinion of the seriousness of the wounding. It is true that both documents confirm that no complicated surgical procedure was required, however, there was and is no dispute as to that.

16. [77]

    Turning to proposed ground 4, the complaint about the sentencing judge’s reliance on the photographs, as previously noted, it is wrong to assert that the photographs had been tendered over initial objection. So far as the transcript records, no objection was raised to their tender at any stage during the sentencing hearing. Further, there were in fact three photographs, rather than the two to which the ground refers.

17. [78]

    The sentencing judge had regard to the photographs in [33]-[35] of his reasons, dealing with objective seriousness:

18. [79]

    It will be seen that the sentencing judge had regard to all three photographs in conjunction with the Agreed Facts. There was no error in doing so. In particular, the wound suffered by Mr M does indeed extend upwards of his lip towards his nose. The photographs served the useful purpose of clarifying what had been agreed, namely, “Laceration/wound above right side of lip – requiring closure”.

19. [80]

    True it is that care must be taken when photographs are deployed. I regard it as self-evident that photographs (and, especially, the reproductions of photographs in appeal books) can contain obvious distortions of distance, colour and shape. They can also contain non-obvious distortions of distance, colour and shape. I sought to explain this in Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 at [213]-[224], including by giving an example central to that appeal: the parallax error in photography of horses travelling around an oval racetrack.

20. [81]

    The care which must always be taken in the use of photographs is inherent in their nature, as has regularly been observed in judgments. I would not read those observations as establishing some rule of law or principle of evidence; cf Amante v R [2020] NSWCCA 34 at [4]-[8]. Read fairly and in context, the statements in decisions such as in Angel v Hawkesbury City Council [2008] NSWCA 130 at [69]-[72] and Blacktown City Council v Hocking [2008] NSWCA 144 at [167]-[172] relate to the particular use of the particular photographs in those cases (respectively, photographs which distorted distance, taken after the event, sought to be used to displace the testimonial evidence of witnesses, and photographs of the lip of a pit used to establish its condition seven or eight years earlier), rather than some general rule or principle. Each case will depend on the particular photograph and the particular purpose for which it is sought to be deployed.

21. [82]

    Ultimately, the applicant’s submission was that:

22. [83]

    There was no misuse of the photographs, read with the Agreed Facts as to the treatment required, in determining the nature of the wounding inflicted by the applicant upon Mr H and Mr M. The photographs were properly able to be deployed to refute the applicant’s submission that Mr M’s injury was “in essence a split lip” and to explain the documentary evidence that there was a “Laceration/wound above right side of lip – requiring closure”.

23. [84]

    The submissions advanced in support of proposed ground 5 were sparse – two sentences in the written submissions, and three sentences in oral submissions.

24. [85]

    In writing, the applicant pointed to a “specific concession” by the Crown at trial. The concession was that these aspects of the wounding fell “just below the middle-range”. The sentencing judge then sought clarification, and it was confirmed that this meant “low mid-range, the low end of the mid-range”, and agreed this was an artificial way of describing the offending. In oral submissions, this was all that was said in support of this proposed ground.

25. [86]

    The applicant also relied, in support of this proposed ground, on a concession that time served was at the low end of available sentencing outcomes. That concession in no way casts doubt upon his Honour’s assessment of objective seriousness.

26. [87]

    The question of objective seriousness is quintessentially a matter for the sentencing judge (some of the authorities are collected in Lees v R [2019] NSWCCA 65 at [55]). No error has been shown, or has come close to having been shown, in the use of evidence bearing upon the woundings inflicted upon Mr H and Mr M, or upon the assessment of the objective seriousness of these two offences.

27. [88]

    These proposed grounds, the first of which was based on submissions which should not have been made to the sentencing judge, the second of which was based on failing to have regard to something in respect of which no submissions were made to the sentencing judge, the third of which is wrong as a matter of fact about there being an “initial objection”, and none of which has any underlying merit, fall short of the standards this Court expects of submissions advanced by counsel. I propose that leave should be refused to rely on any of proposed grounds 2, 3, 4 and 5.

28. [89]

    The applicant submitted orally and in writing that the matter could have proceeded in the Local Court. He also conceded that the prosecutorial discretion to proceed in the District Court was unreviewable. In this Court Mr Russell came close to not pressing this ground, introducing his submissions with the words “I don’t wish to spend too much time on that particular point” and nowhere developing how it amounted to error.

29. [90]

    There were four victims, all of whom were merely going about their ordinary business on a Wednesday afternoon. Two received injuries requiring their being admitted to hospital, one was threatened with death accompanied by damage to the hotel door, and one was assaulted inside the car in which she was a passenger. Although none of the offences was strictly indictable, there was sound reason for the prosecutorial decision to proceed in the District Court.

30. [91]

    This offending is a long way removed from the “rare and exceptional” set of circumstances to which Johnson J referred where the possibility of summary disposal is relevant to the sentence imposed by the District Court: Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [83]; see also Turner v R [2016] NSWCCA 208 at [24]-[34]. Rather the position is as stated by Basten JA in Baines v R [2016] NSWCCA 132 at [13]:

31. [92]

    I would not grant leave to appeal on this barely pressed ground.

32. [93]

    It was said that various extracts from the remarks on sentence:

33. [94]

    In my opinion, this criticism is without foundation.

34. [95]

    The written and oral submissions have been reproduced above. The proceedings were listed for the purpose of imposing sentence. It was surely so obvious that it did not require explicit statement that one question was whether the applicant by his counsel would seek to establish the mitigating factor in s 21A(3)(c) of the Crimes (Sentencing Procedure) Act, namely, “the offender was provoked by the victim”. “Provocation” has a number of meanings in criminal law and in general usage. It may operate to reduce murder to manslaughter, as the applicant stated, although since the amendments effected by the Crimes Amendment (Provocation) Act 2014 (NSW) “extreme provocation” as defined in s 23(2) of the Crimes Act is required. “Provocation” is a term which is used much more loosely outside the courtroom. But the matter was listed for sentence, and when counsel made written and oral submissions alleging provocation in terms, it was to be expected that they would be understood as directed to s 21A(3)(c).

35. [96]

    The natural way of reading the applicant’s written submissions, supplied the previous day, is that they were an attempt to make out a case that the applicant’s offending was provoked by the conduct of the hotel manager (“[Ms R] approached the offender in an aggressive manner” and “there was some element of provocation towards the offender”). The claim that “instructions are, and the facts appear to support, the offender[’]s belief that the car which contained both [Ms A] and [Mr M] had tried to run him over”, such that “some element of provocation resulted in the offender acting as he did”, likewise are naturally read as an attempt to make out the mitigating factor in s 21A(3)(c).

36. [97]

    True it is that the submission was advanced that another man, not Mr H, told the offender that Mr H was a paedophile, and that nothing in the applicant’s submissions pointed to Mr H doing anything. The written submissions refrained from asserting provocation as a mitigating factor in respect of that offence. However, in oral submissions, Mr Russell maintained that provocation nonetheless occurred.

37. [98]

    All of this presented the sentencing judge, and the Crown, with the prospect that although provocation as a mitigating factor was entirely absent from the Agreed Facts, it was sought to be advanced at the sentencing hearing.

38. [99]

    The gravamen of this ground is that the sentencing judge misunderstood the repeated references in writing and orally to “provocation”, which were intended in some way falling short of a mitigating factor, to “explain [the applicant’s] conduct but not to excuse it”, as it was put.

39. [100]

    The transcript shows that the primary judge articulated his concerns in a lengthy exchange with the Crown. Counsel for the applicant was thereby given some notice of the difficulties he would face in establishing provocation (a) based on the absence of any suggestion in the “agreed facts” and (b) in relation to the wounding of Mr H, where the claim was patently hopeless.

40. [101]

    Nonetheless, having heard that exchange, counsel confirmed that he was asking for findings of provocation in relation to the entirety of the offending. The hearing proceeded on that basis, and evidence was adduced in chief and tested in cross-examination.

41. [102]

    The sentencing judge rejected all aspects of provocation, saying:

42. [103]

    This led to the following submission being put to this Court:

43. [104]

    I did not understand the applicant to contend that there was any error in failing to make a finding in accordance with s 21A(3)(c). Indeed, I confess that I do not really understand what this ground is directed to, bearing in mind that the sentencing judge expressly relied on the testimonial evidence of the applicant which accepted that he was entirely at fault for his conduct, and distancing that evidence from the submissions made on his behalf.

44. [105]

    Insofar as this ground is a challenge to the criticisms expressed by the sentencing judge of the submissions made by counsel, I would reject it. “Unfortunate” was a restrained and accurate description of counsel’s submissions on provocation.

45. [106]

    This proposed ground is without foundation. It does not warrant a grant of leave.

46. [107]

    This proposed ground was based on various references which had been placed before the Court, of which the sentencing judge said, correctly, that they all spoke of the surprise about the offending behaviour, the applicant’s frustration with the Family Court proceedings, and that he was not usually an aggressive person. The sentencing judge added “Of course, all unsworn and untested statements of that type must be treated with circumspection”.

47. [108]

    It was put in writing that the references were tendered by consent and without any application to cross-examine any of the referees, and that no submission was made inviting their being treated with circumspection. This ground was not significantly developed in oral submissions.

48. [109]

    I see no error in what the sentencing judge said. Moreover, there was a basis for circumspection. The first reference refers to only three of the offences, as though that was the entirety of the offending conduct, and even then it does not suggest that the referee knew the facts underlying even those three offences. The second, third and fourth references do not disclose that the referees were aware of the details of any of the offending conduct.

49. [110]

    Further, the sentencing judge made a finding of good character. It has not been explained how, in light of that finding, the statement by the sentencing judge could have had any impact on the sentence imposed.

50. [111]

    I would not grant leave to appeal on this ground.

51. [112]

    Mr Cohen’s report is mentioned above. It is plain that he expressed opinions regarding – and indeed purported to diagnose – psychiatric conditions. He was not qualified to do this.

52. [113]

    As was observed during the hearing in this Court, this is far from the first occasion where this has occurred. In R (Cth) v Petroulias (No 36) [2008] NSWSC 626, Johnson J observed at [164]:

53. [114]

    Those views were endorsed in this Court in WW v R [2012] NSWCCA 165 at [58]. That is not to deny that in some cases a psychologist’s opinion may be persuasive: see for example Masters v R [2019] NSWCCA 233 at [11]-[12]. Where, as in the present case, a psychologist’s report is tendered without objection, then it formed part of the evidence before the sentencing judge to be given such weight as it deserved, as Johnson J observed in Jung v R [2017] NSWCCA 24 at [41]-[42].

54. [115]

    If the reference to “unchallenged psychologist report” is intended to convey that the sentencing judge’s caution took the applicant by surprise, it is not borne out by the record. The exchange between the sentencing judge and the Crown to the effect that “the Court should treat [it] with caution” and that although no objection was taken to its admission, it should be given “as much weight as ... it deserves” make it clear that this was disclosed during the hearing.

55. [116]

    The sentencing judge was familiar with the approach stated in the authorities mentioned above. Under the heading “Mental Health”, his Honour addressed the issue:

56. [117]

    The sentencing judge went on to make a specific finding relevant to those considerations, concluding:

57. [118]

    His Honour expanded on his bases for that finding in an orthodox way:

58. [119]

    The applicant framed his submissions in support of this ground as follows:

59. [120]

    I do not accept the submission. The extracts reproduced above are ample reasons for the approach taken by the sentencing judge, which accorded with the authorities. The sentencing judge expressly referred to the possibility that mental illness impacted upon the applicant’s moral culpability. This was a matter as to which the applicant bore the onus. It is clear that the sentencing judge regarded that as not established by the psychologist’s report prepared more than 20 months after the event. There was no error in that course.

60. [121]

    While I would grant leave to appeal on this ground, it is not made out.

61. [122]

    In order to succeed on this ground the applicant must establish that the sentence was “unreasonable” or “plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. There is no single correct sentence and sentencing is not a mathematical exercise, and so this ground proceeds on the basis that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principle. This Court will not interfere with a sentence merely because it may have exercised its discretion differently.

62. [123]

    Relevantly to the application of this ground to an aggregate sentence, Bathurst CJ said in Kerr v R [2016] NSWCCA 218 at [114] that:

63. [124]

    The sentencing discretion reposed in the District Court in this case was far from straight-forward, having regard to the severity of the individual offences, their randomness and their proximity in time, the number of victims, and the subjective case which was not without force. That task was not assisted by the complications introduced by the course taken in the proceedings.

64. [125]

    The sentencing judge mentioned totality, but ultimately imposed a sentence of 4 years, reflecting a starting point of 5 years and 4 months, for what was in substance a single incident over slightly more than an hour on a Wednesday afternoon.

65. [126]

    Conscious as I am of the physical and psychological harm to the victims, I nonetheless conclude that an undiscounted head sentence of imprisonment for a term of 5 years and 4 months, imposed on a young man of good character, with a substantively clean criminal record, who had never previously been sentenced to a period of imprisonment, who gave evidence of remorse and who had fair prospects of rehabilitation, was too high.

66. [127]

    I am confirmed in that conclusion by some of the reasoning used by the primary judge when imposing the aggregate sentence.

67. [128]

    The sentencing judge provided indicative sentences of 9 months for the intimidation, 2 years for each of the two woundings, 6 months for the common assault and 3 months for the destruction of property. The sentencing judge was conscious that there needed to be a deal of notional concurrency, having regard to the need for totality. His Honour also said:

68. [129]

    Less importantly, I respectfully do not agree that there are cases where there is a substantial temporal disconnect or a difference in nature which preclude the power conferred by s 53A, although of course a sentencing judge may choose not to deploy that power. The only prerequisite to the exercise of the power conferred by s 53A is that an offender is being sentenced “for more than one offence”.

69. [130]

    More importantly, I respectfully disagree with the second sentence from the passage reproduced above. In principle, precisely the same effective sentence may be imposed whether or not an aggregate sentence is employed. The purpose of aggregate sentence is not to achieve a lesser effective sentence than would have been imposed by a traditional individual sentence structure. The purpose may be seen in what has recently been referred to as the “seminal explanation of the aggregate sentencing provisions” in JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [39]-[40] (cited in Vaughan v R [2020] NSWCCA 3 at [92]). It is not necessary to reproduce the entirety of that passage. It is sufficient to note that the purpose was not to enable a sentence to be imposed which was not “crushing”, and that the statement of principle commences with the observation that:

70. [131]

    Later in his reasons, the sentencing judge stated that “the total indicative sentence, after discount, is five years and six months”. It is unclear what purpose that statement was intended to serve. However, it does highlight that the effect of the degree of notional concurrency reflected in the indicative sentences and an aggregate sentence of 48 months was that only 18 months of a total of 66 months.

71. [132]

    There is no rule that proximity in time necessarily leads to large degrees of concurrency for the sentences imposed for separate offending in a short time period. However, in the present case, the entirety of the offending occurred in slightly more than an hour, all following the applicant’s sustained drinking from 10 am that morning, and all was of the same general nature, although the harm was directed upon different victims. It is clear that this is a case where a deal of the criminality in each offence is best seen as comprehending and reflecting the criminality of the other offences, in accordance with what was said in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]:

72. [133]

    The same approach applies when ensuring that an aggregate sentence accords with totality. An example may be seen in this Court’s decision in Berryman v R [2017] NSWCCA 297, and indeed the reasoning at [57] is apposite, although in Berryman there were were two, rather than four, victims:

73. [134]

    So too here. On any view, the first and fifth counts, which occurred in the hotel, happened within seconds of each other. On any view, so did the third and fourth, the wounding of Mr M and the assault upon Ms A. True it is that there was separate conduct giving rise to the separate offences, but each was part of the same encounter.

74. [135]

    More generally, all of the offending, over a period of just over an hour, is fairly seen as a single course of conduct in a short timeframe. When this is borne in mind, the sentence of 4 years imprisonment, after a discount of 25% for the guilty pleas, is manifestly excessive.

Orders and resentence

1. [136]

   For those reasons, there should be a grant of leave, confined to grounds 1 and 9, the appeal should be allowed, the sentence imposed on 23 November 2018 quashed, and in lieu thereof the applicant must be resentenced.

2. [137]

   While in custody, in June 2019 the applicant was found in a fight with another inmate, and was reported to be aggressive during the inquiry, and punished by two weeks off buy-ups. According to the evidence provided to this Court, that was the only breach of discipline during his imprisonment. Subsequently, in September 2019, the applicant completed the EQUIPS Aggression Program. He has been classified, since a week after commencing his term of imprisonment, as C2 Minimal Security. In my view this evidence, which was supplied to the Court on the usual basis in the event that the sentencing discretion fell to be re-exercised, does not materially alter the position.

3. [138]

   I would not interfere with the assessment by the sentencing judge of the objective seriousness of any of the offences. Nor would I depart from the cautious assessment of the prospects of rehabilitation and re-offending, not least because I am conscious that the sentencing judge had the advantage of seeing the applicant give evidence. Like the sentencing judge, I would conclude that the applicant is of good character and is remorseful for his offending. He is a young man with supportive family members. The fact that he adhered to his bail conditions over around a year before sentence was imposed is confirmatory of the desirability that there be a finding of special circumstances so as to extend the time during which he can be in the community but subject to supervision by a parole officer. The applicant is entitled to a discount of 25% for his pleas of guilt.

4. [139]

   The offending is such that a full-time custodial sentence is warranted.

5. [140]

   I would impose an aggregate sentence of 3 years and 3 months, reflecting a starting point before discount of 4 years and 4 months, with a non-parole period of 2 years and 2 months. That is the same ratio as determined by the sentencing judge.

6. [141]

   I indicate the that the individual sentences would have been 9 months for the intimidation count, 2 years with a non-parole period of 16 months for each of the reckless wounding counts, 6 months for the common assault and 3 months for the destroy or damage property. The indicative sentences are the same as those stated by the sentencing judge, but the significantly lesser aggregate sentence reflects my view that the intimidation and destroy or damage property counts should be almost entirely concurrent, as should the second reckless wounding count and the common assault, and also that there should be a substantially greater degree of notional concurrency than was implicit in the sentence imposed at first instance, having regard to its proper characterisation as a single series of events taking place in slightly more than an hour following the applicant’s excessive consumption of alcohol.

7. [142]

   That sentence should be backdated to allow for time served, so as to commence on 28 March 2018. The sentence will expire on 27 June 2021, and the non-parole period will expire on 27 May 2020. The earliest date when the applicant can apply for parole is 27 May 2020.

8. [143]

   LONERGAN J: I agree with the reasons and the orders proposed by Leeming JA.