Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kirby v R [2021] NSWCCA 162 Hearing dates: 31 May 2021 Date of orders: 19 July 2021 Decision date: 19 July 2021 Before: Harrison J at [1] Beech-Jones J at [2] Cavanagh J at [49] Decision: (1) Grant the applicant leave to appeal against sentence. (2) Dismiss the appeal. Catchwords: SENTENCING – police officer victim of offence under s 33B(1) of Crimes Act – whether erroneous to refer to their status as aggravating circumstance – no error established - sentencing judge only considered status of victim in characterising objective seriousness of offence - alleged double punishment revealed by indicative sentences – no common elements – sentence not manifestly excessive – leave to appeal granted but appeal dismissed. Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Cases Cited: BJS v R [2013] NSWCCA 123 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 JM v R [2014] NSWCCA 297 Lee v R [2020] NSWCCA 244 PD v R [2012] NSWCCA 242 Pearce v R (1998) 194 CLR 610; [1998] HCA 57 Portolesi v R [2012] NSWCCA 157 Category: Principal judgment Parties: Neil Mark Kirby (Applicant) Regina (Crown) Representation: Counsel: Mr S Lawrence (Applicant) Ms E Wilkins SC (Crown) Solicitors: Legal Aid (NSW) (Applicant) Director of Public Prosecutions (Crown) File Number(s): 2018/237762 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 16 December 2019 Before: Robison DCJ File Number(s): 2018/237762 Judgment 1. HARRISON J: I agree with Beech-Jones J. 2. BEECH-JONES J: This is an application for leave to appeal from an aggregate sentence imposed by his Honour Judge Robison for eight offences of violence that his Honour found to be committed following a judge alone trial. 3. On 16 December 2019, his Honour sentenced the applicant to an aggregate term of imprisonment of 7 years and 6 months with a non-parole period of 4 years imprisonment. The sentence commenced on 1 August 2018 and expires on 31 January 2026. 4. None of the eight offences carried a standard non-parole period. The indicative sentences specified for each of the offences pursuant to s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the "Sentencing Procedure Act"), their maximum penalty, and Judge Robison's finding as to objective seriousness were as follows: Count Offence Finding of Objective Seriousness Maximum Penalty Indicative Term 1 Common Assault, Crimes Act 1900, s 61 "Low end" 2 years imprisonment 3 months imprisonment (Victim: Kennedy) 2 Assault occasioning bodily harm, Crimes Act 1900, s 59 "Above mid-range, towards the high range" 5 years imprisonment 1 year 9 months imprisonment (Victim: Kennedy) 3 Intentional choking, Crimes Act 1900, s 37(1) "Comfortably falls within the mid-range" 10 years imprisonment 4 years imprisonment (Victim: Kennedy) 4 Use weapon with intent to assault police; Crimes Act 1900 s 33B(1) No express finding made 12 years imprisonment 3 years 9 months imprisonment (Victim: SC Lodyga) 5 Assault police, Crimes Act 1900, s 60(1) "Mid-range of offending" 5 years imprisonment 1 year 6 months imprisonment (Victim: SC Lodyga) s 166 (Seq 1) Intimidation, Crimes (Domestic and Personal Violence) Act 2007, s 13(1) No express finding 5 years but 2 years maximum 6 months (Victim: Kirby) s 166 Damage property, Crimes Act 1900, s 195 No express finding 5 years but 2 years maximum 3 months (Seq 2) s 166 Resist police, Crimes Act 1900, s 58 "Between the low to mid-range of objective seriousness" 5 years but 2 years maximum 3 months (Seq 3) 1. As can be seen, his Honour dealt with three summary offences under s 166 of the Criminal Procedure Act 1986 (NSW). Even though for sequences 1, 2 and 3 the maximum penalty for the offence was 5 years imprisonment, the maximum sentence that his Honour could impose was 2 years imprisonment (Criminal Procedure Act, ss 168(3), 267 and 268). The Offences 1. The following recitation of the facts of the offences is taken from both Judge Robison's reasons for conviction as well as his sentencing judgment. 2. On 1 August 2018, the applicant and the victim, Ms Marinda Kennedy, were at premises occupied by the applicant's aunt. The applicant and Ms Kennedy used to be in a domestic relationship. 3. The applicant was intoxicated. An argument arose between the applicant and his aunt in the kitchen about who owned the house. Ms Kennedy intervened. The applicant became agitated by the involvement of Ms Kennedy in the argument. He slapped Ms Kennedy three times across her face. She was not injured. This assault constituted count 1 on the indictment. 4. The police were then called and attended the house. No complaint was made about the assault at that time. The applicant and Ms Kennedy were asked to leave the house, which they then did. 5. Shortly after leaving, the applicant and Ms Kennedy walked up a road. As they approached a causeway, the applicant and Ms Kennedy continued their argument. The applicant then punched Ms Kennedy to the face several times. She begged him to stop but he continued striking her to the head. In her evidence, Ms Kennedy described seeing flashes as a result of the blows. She placed her hands around her head to protect herself. Blood was coming from her nose. At some point, Ms Kennedy was on the ground, having been 'dragged down'. Neither the conviction judgment nor the sentencing judgment recount the injuries Ms Kennedy suffered as a result of this attack. However, the Crown's submissions on sentence, which his Honour accepted, stated that she suffered bruising to her right eye cheek bone, bruising to left upper arm, superficial grazes to both knees and her right arm, a scratch to her left ear, and scratch to her left upper back. This assault on Ms Kennedy by the applicant constituted count 2 on the indictment. 6. While Ms Kennedy was on the ground, the applicant came from behind and placed his hands around her throat. According to the sentencing judge, Ms Kennedy was "going in and out of a level of consciousness". His Honour found she was "absolutely terrified". She managed to escape and ran to a nearby house. The conduct of the applicant in choking Ms Kennedy constituted count 3 on the indictment. 7. Following the assault of Ms Kennedy, the applicant returned to his aunt's home. From outside the home, he used words to the effect of: "You old cunt, you're not getting this fucking house, you can die". This caused his aunt to contact the police in fear of her life. This applicant's conduct in intimidating her constituted sequence 1 on the s 166 certificate. 8. The police attended the home again. While one police officer, Senior Constable Lodyga, was inside the home, the applicant approached the front door of the home and smashed the front window near the entry. This constituted the offence of damaging property which was sequence 2 on the s 166 certificate. 9. Senior Constable Lodyga went to the front door following the breaking of the window. He observed the applicant running and told him: "Stop, Police, don't move" about five times. Senior Constable Lodyga then observed the applicant running towards him. The applicant was holding a large long object in his hands. Senior Constable Lodyga did not know what it was, but thought it was a piece of timber. In fact it was a machete. 10. Senior Constable Lodyga said: "Stop, police, drop the weapon." The applicant continued to run towards him. Senior Constable Lodyga observed the applicant swing the object in his direction as he approached. Senior Constable Lodyga attempted to get some distance to maintain "a reactionary gap between himself" and the applicant. However, SC Lodyga felt force applied to his left upper arm. He was struck twice with the machete, but no physical injury was sustained due to the clothing he was wearing. Senior Constable Lodyga then performed several defensive strikes. The applicant knew that SC Lodyga was a police officer. The conduct of the applicant towards SC Lodyga, constituted counts 4 and 5 on the indictment. The relationship between the two counts is addressed below. 11. The applicant then resisted apprehension until he was handcuffed. This was the offence of resist arrest which was sequence 3 on the s 166 certificate. The Sentencing Judgment 1. The facts of the offending and Judge Robison's finding as to level of objective seriousness for most of the offences are noted above. As the table set out in [4] indicates, his Honour did not make any express finding about the objective seriousness of count 4 in terms of where it lay on some hypothetical spectrum of offending. Nevertheless, as explained below, his Honour addressed its relative seriousness in a manner that is the subject of complaint by grounds 1 and 2 of the appeal. 2. Judge Robison also addressed the applicant's subjective case. As at the time of sentencing, the applicant was 35 years of age. He had a long history of substance abuse. Relevantly, in New South Wales he had convictions for assault in 2008 and convictions for contraventions of apprehended violence orders in 2012. However, he had a lengthy history of convictions for violent offences in Victoria dating back to 2002, many of which resulted in him serving a term of imprisonment. His Honour stated that he was "mindful of any risk of institutionalisation" in relation to the applicant. His Honour also found that his recent completion of a program that addressed substance addition "bodes well for any prospect of rehabilitation" and that overall the applicant had made "some progress already". His Honour made a finding of "special circumstances for the purposes of s 44(2A) of the Sentencing Procedure Act. 3. The most significant part of the applicant's case on sentence was his disadvantaged background. Judge Robison accepted that background as set out in a report from a psychologist, Ms Dombrowski. His Honour accepted that it engaged the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ("Bugmy") (at [44]) such that his moral culpability can be taken to have been reduced. 4. In her report, Ms Dombrowski, described the applicant's background. He is an Indigenous man. For reasons that are unclear, his parents sent him to live with his grandmother when he was 13 years of age. From when he was 14 he "resided with various family members, friends and in youth detention/adult correctional facilities". He was expelled from school in year 8 and left all schooling in the middle of year 10. The applicant told Ms Dombrowski that he "frequently witnessed violence and substance use" in the communities in which he grew up. He commenced sniffing petrol when he was 13 but later stopped. However, he started drinking alcohol and consuming cannabis when he was 14. Ms Dombrowksi opined that "[n]eurological factors may also be important in understanding his offending behaviour (and associated emotional and behavioural regulation difficulties) and require further investigation". 5. Of significance to Bugmy, Ms Dombrowski stated: "Mr Kirby has a history of significant disadvantage. He has grown up witnessing community violence and substances abuse, received inconsistent caregiver guidance and supervision during his childhood, and has served periods in youth detention. These experiences, within the broader context of social marginalisation and disadvantage associated with his Aboriginality, have resulted in the development of a man who has normalised early and heavy substance use and the use of violence as a legitimate conflict resolution strategy and experiences difficulty regulating his emotions and behaviour (particularly when he perceives provocation). These difficulties have compromised his education, limited his employment experience, disrupted his interpersonal relationships, and resulted in frequent periods of incarceration. His ongoing difficulties with emotional and behavioural regulation (which have been a significant contributing factor to past and present offending) have continued in adulthood and raise concerns regarding the development of an unstable personality structure with antisocial features". 1. As noted, Judge Robison can be taken to have accepted this assessment. Ground 1: Error in (allegedly) treating as an aggravating factor on count 4 that the victim was a police officer 1. Ground 1 of the appeal contends that the sentencing judge erred in taking into account as an aggravating factor the fact that the complainant was a police officer. 2. To address this ground, it is first necessary to identify the Crown case and his Honour's findings on counts 4 and 5. 3. Count 4 was an offence under s 33B(1) of the Crimes Act 1900 (NSW) which provides: "(1) Any person who-- (a) uses, attempts to use, threatens to use or possesses an offensive weapon or instrument, or (b) threatens injury to any person or property, with intent to commit an indictable offence or with intent to prevent or hinder the lawful apprehension or detention either of himself or herself or any other person or to prevent or hinder a police officer from investigating any act or circumstance which reasonably calls for investigation by the officer is liable to imprisonment for 12 years. " 1. The concluding part of s 33B(1) has three alternative limbs namely "intent to commit an indictable offence", "intent to prevent the lawful apprehension or detention" etc or "to prevent or hinder a police officer" etc. Only the third limb has, as a necessary element, the involvement of a police officer. Regardless of which of these limbs is selected, it is not a necessary element that the person who is threatened with injury, as referred to in s 33(1)(b), is a police officer. 2. Count 4 of the indictment charge the applicant with "us[ing]" an offensive weapon with intent to commit an indictable offence, namely, assaulting a police officer acting in the execution of their duty contrary to s 60(1) of the Crimes Act. Thus it invoked the first limb of the concluding part of s 33B(1). Count 5 charged the applicant with a substantive offence under s 60(1). 3. Both offences related to the attack on Senior Constable Lodyga. In his sentencing judgment, Judge Robison observed that "there is indeed some overlay in respect to" counts 4 and 5. In particular, it seems that the "use" of the machete that was the subject of count 4 was the first strike on SC Lodyga with the machete and the second strike was the assault the subject of count 5. Thus count 4 alleged an intention to commit an indictable offence and count 5 involved the commission of that very offence. Counsel for the applicant was critical of charges being framed in this way. However, the present issue concerns the approach to sentencing not the basis upon which the applicant was convicted. 4. In its written submissions on sentence that were before Judge Robison, the Crown identified a number of factors in relation to count 4 as informing an assessment of the objective criminality of the offending including that the victim was a police officer and that the "person [the applicant] used the weapon to assault was a police officer, at the home to protect the home owner". The submissions later stated: "Relevant section 21A factors for consideration Section 21A(2)(a) Victim being a police officer: The Crown alleged that the offender 'used' the weapon with intent to commit an indictable offence being an assault on a person who was a police officer. It is not an essential element that the indictable offence be one of assault police officer. However, the conduct by the offender on a person who was a police officer is inextricably connected to the intent. The Crown submits that the court should adopt a cautious approach, thus to avoid 'double counting: and be minded to utilise the fact that the victim was a police officer in the assessment of objective criminality relating to Count 4. With respect to Count 5. The fact that the victim was a police officer was an essential element in this offence and therefore this aggravating circumstance should not be applied. Further - resist police section 166, also not applicable as is an element of the offence" 1. The sentencing judge addressed that submission as follows: "The Crown has carefully reminded the Court about the cautious approach to avoid double counting when it comes to Senior Constable Lodyga being a police officer at the time and I have done so in the task that falls to me today. Being a police officer of course is an office of importance with coercive powers that are commensurate with that office. The conduct as submitted by the Crown by the offender on a person who is a police officer is indeed inextricably connected to the question of intent and the Crown submits that the Court should adopt that cautious approach to avoid double counting as I observed earlier. The Court also needs to be mindful to utilise the fact that the victim was a police officer in the assessment of the objective criminality relating to count 4 and I have done so in this task. Certainly, this aggravating circumstance should not be applied when it comes to count 5 and resisting police of course is an element of the offence and not to be taken into account as an aggravating feature. I accept the Crown's written submission under the heading next to the number 4 when it comes to aggravating factors pursuant to s21A of the Crimes (Sentencing Procedure) Act ..." (ROS 9-10). 1. The applicant submitted that this approach was erroneous in that the offence of assault police officer was the particularised offence for count 4. It was contended that it was an error for his Honour to then 'double count' by further taking into account that the victim was a police officer for the purposes of determining punishment. 2. I do not accept that submission. The effect of the Crown's submission on sentence was that, because the offence under s 60(1) of the Crimes Act was only a particular of the "intent to commit an indictable offence" limb of count 4, then it is permissible under s 21A(2)(a) of the Sentencing Procedure Act to treat the status of the victim of the offence, being a police officer, as an aggravating factor of the offence. It is not necessary to decide whether that submission is correct because, despite advancing it, the Crown nevertheless urged the adoption of a "cautious approach" of simply treating the status of the victim as part of the assessment of the objective criminality of count 4. His Honour adopted that approach and it was not erroneous to do so. 3. Section 33B(1) of the Crimes Act embodies a broad range of offending. There is no standard non-parole for offences under that provision. The utility of attempting to place a particular offence under that section on some hypothetical range of offending is doubtful. In any event, in determining the objective seriousness of an offence under that section it is permissible to consider which of the three alternative limbs identified above that the Crown relies on, and, if it relies on the first limb, what indictable offence is particularised. Given the wide range of indictable offences that could be relied on in relation to the first limb, an assessment of objective seriousness invites inquiry into the nature of the particular indictable offence. In this case, an aspect of that involved the fact that the victim was a police officer. 4. I would reject ground 1 of the appeal. Ground 2: Double Punishment 1. Ground 2 of the appeal contends that the "sentencing judge erred in his application of the totality principle and the need to avoid double punishment, in sentencing the applicant for counts 4 and 5." 2. The basis upon which the Crown case on counts 4 and 5 was framed and accepted by his Honour as well as his Honour's approach to sentencing for those offences is outlined above. On behalf of the applicant, it was submitted that his Honour's reasons, as well as the terms of the aggregate sentence and indicative sentences, "suggest that the [a]pplicant was punished twice for the act of assaulting a police officer with a machete". It was submitted that the applicant's "acts in striking the police officer [with a machete] were attributed to two separate offences which both attracted lengthy indicative terms" and because "both counts four and five necessarily involved him being sentenced for his intention to assault the police officer with the machete as well as having done so". The submissions note the indicative sentences for each offence and the sentencing judge's discussion of totality. The submissions accept that the indicative terms are not appellable but contended that they may "reveal error in relation to the application of the totality principle because they demonstrate that the sentencing judge did not properly take into account the unusual and substantial overlap in criminality involved in the two offences". 3. These submissions elide two different propositions enunciated in Pearce v R (1998) 194 CLR 610; [1998] HCA 57 ("Pearce"). The first proposition is it is necessary in fixing an appropriate sentence for an individual offence to avoid double punishment in respect of some element that one of those offences has in common with other offences that the offender is being sentenced for (Pearce at [40] and [49]). The second proposition is that the proper approach to sentencing for multiple offences is to first identify the appropriate sentence for each offence and to then consider questions of cumulation, concurrency as well as totality (Pearce at [45]; see Portolesi v R [2012] NSWCCA 157 at [45]; "Portolesi"). 4. The totality principle has nothing to do with the first of those propositions. With that proposition, double punishment may arise where a "single act" was an element of both offences in respect of which punishment was imposed (Pearce at [42]). In such cases, the sentence for one offence should be discounted to avoid double punishment for the common element (Pearce at [49]). In Pearce, it was observed that the 'identification of a single act as common to two offences may not be always be … straightforward", that such an "inquiry is not to be attended by 'excessive subtilities and refinements'" and should be approached as a matter of "common sense" and not "semantics" (Pearce at [42]). 5. Although the differentiation between the acts that constituted count 4 on the indictment and those acts that constituted count 5 was nuanced, there was no "act" of the applicant which constituted the same element of both offences and otherwise there was no element common to both. The distinction between being struck twice with a machete and only struck once is, as a matter of common sense, quite real as is the distinction between intending to assault an officer in the execution of their duty and actually doing it. I do not accept that any principle of double punishment was engaged in sentencing for counts 4 and 5. 6. This leaves the applicant's complaints about totality. In the sentencing judgment his Honour stated that he had "considered the totality of the offending and the question as to whether the sentences should be cumulative or partially so." Further, in considering the extent to which his Honour had regard to totality, it should be noted that, if all the indicative sentences were notionally cumulated, then the combined aggregate sentence would have been 12 years and 3 months as opposed to the actual aggregate sentence of seven years and 6 months. Thus, his Honour both referred to and applied the totality principle in fixing sentence. 7. Leaving aside aggregate sentences, in a case where a person is convicted of two offences which have no common elements, but they nevertheless form part of a "single episode of criminality with common factors", then the appropriate sentences for each offence must be fixed with cumulation, concurrence and totality then addressed (Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27] per Howie J; Pearce id). In such cases it can be expected that there will be a substantial measure of concurrency (Cahyadi id). If his Honour had determined to impose separate sentences then it can be expected that, consistent with Cahyadi, the sentences for counts 4 and 5 would have mostly been concurrent. However, his Honour imposed an aggregate sentence and thus his Honour was not obliged to fix notional commencement dates for each sentence. This means that the task imposed on the applicant in demonstrating error in the application of the totality principle is that much harder (Lee v R [2020] NSWCCA 244 at [32]). Given his Honour's reference to the principle of totality and the fact that the aggregate sentence clearly shows that a substantial measure of concurrency was applied in respect of all the offences, it follows that error has not been shown. 8. I would reject ground 2 of the appeal. Ground 3: Manifest Excess 1. Ground 3 of the appeal contends that the sentencing judge erred by imposing a manifestly excessive sentence. 2. In Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59] ("Hili"), French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ stated: "As was said in Dinsdale v The Queen [(2000) 202 CLR 321; [2000] HCA 54 at [6]], '[m]anifest inadequacy of sentence, like manifest excess, is a conclusion'. And, as the plurality pointed out … in Wong v The Queen [(2001) 207 CLR 584; [2001] HCA 64; at [58]; "Wong"], appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'. Rather, as the plurality went on to say … in Wong [at [58]], '[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons'. But, by its very nature, that is a conclusion that does not admit of lengthy exposition." 1. In the case of an appeal from an aggregate sentence, the indicative sentences are not appellable in their own right but they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CL and Adamson J agreed and cases cited thereat; "JM") although, even if an indicative sentence is considered excessive, that is not determinative (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The ultimate question will be "whether [or not] the aggregate sentence reflects the totality of the criminality involved" (JM at [40]). 2. The various matters affecting the length of the sentence imposed are addressed above. In the end result, this case involved an extremely serious instance of domestic violence, namely choking, followed by a violent attack on a police officer with a machete. The applicant's criminal record disentitled him to leniency and his prospects of rehabilitation could be best described as guarded. Against this, he had the benefit of strong case for the application of Bugmy principles. 3. In the end result, I am not satisfied they any of the indicative sentences or the aggregate sentence were manifestly excessive. I would reject ground 3. Proposed Orders 1. Accordingly, I propose the following orders: 1. Grant the applicant leave to appeal against sentence; 2. Dismiss the appeal. 1. CAVANAGH J: I agree with Beech-Jones J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 July 2021