Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Hesketh v R [2021] NSWCCA 262 Hearing dates: 21 July 2021 Date of orders: 08 November 2021 Decision date: 08 November 2021 Before: Bell P at [1]; Price J at [64]; Hamill J at [65] Decision: 1. Grant leave to appeal against conviction. 2. Dismiss the appeal against conviction. 3. Dismiss the application for leave to appeal against sentence. Catchwords: CRIME – appeals – appeal against conviction – discharge of firearm with intent to cause grievous bodily harm – reckless wounding – wrong decision on a question of law – the rule against double punishment – conviction on two counts – pursuant to plea of guilty – assertion that the criminality in respect of one count was totally subsumed by the other – whether the applicant was punished twice for the commission of elements common to both offences for which he was convicted – whether the fact of conviction constitutes an act of punishment CRIME – appeals – appeal against sentence – manifest excess – where indicative sentences are not themselves amenable to appeal CRIME – appeals – appeal against sentence – misapplication of principle – principle of totality – applicant sentenced on two counts – assertion that the criminality in respect of one count was totally subsumed by the other – whether the principle of totality required the sentences for both offences to be wholly concurrent – nature of the relationship between indicative sentences and aggregate sentence SENTENCING – appeal against sentence – aggregate sentence – relevant factors on sentence – multiple offences – accumulation, concurrency and totality – Pearce – whether the principle of totality required the sentences for both offences to be wholly concurrent SENTENCING – appeal against sentence – severity – sentence manifestly excessive Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A(g), 21A, 25D, 52A(4), 53A Crimes Act 1900 (NSW) ss 4A, 33, 35, 51B, 110 Cases Cited: Baradi v The Queen (2018) 273 A Crim R 468; [2018] NSWCCA 143 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cahyadi v The Queen (2007) 168 A Crim R 41; [2007] NSWCCA 1 Cashel v R [2018] NSWCCA 292 Dean v R [2015] NSWCCA 307 Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502 Jidah v The Queen (2014) 246 A Crim R 368; [2014] NSWCCA 270 JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297 Johnson v The Queen (2002) 26 WAR 336; [2002] WASCA 102 Johnson v The Queen (2004) 205 ALR 346; [2004] HCA 15 Kirby v R [2021] NSWCCA 162 Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 McCullough v The Queen (2009) 194 A Crim R 439; [2009] NSWCCA 94 McFarland v R [2021] NSWCCA 79 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58 Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Portolesi v The Queen (2012) 227 A Crim R 170; [2012] NSWCCA 157 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 Priovolidis v R [2016] NSWCCA 201; (2016) 78 MVR 59 R v Campbell; R v Smith [2019] NSWCCA 1 R v Dodd (1991) 56 A Crim R 451 R v Hilton (2005) 157 A Crim R 504; [2005] NSWCCA 317 R v Hoar (1981) 148 CLR 32; [1981] HCA 67 R v Sessions [1998] 2 VR 304 R v Thomas [1950] 1 KB 26 Regina v Janceski [2005] NSWCCA 288 Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 Texts Cited: D A Thomas, Principles of Sentencing (2nd ed, 1979, Heinemann) Category: Principal judgment Parties: Dylan Hesketh (Applicant) The Crown (Respondent) Representation: Counsel: J Trevallion (Applicant) M A Kumar (Respondent) Solicitors: Abbas & Co Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2018/254651 Publication restriction: N/A Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 18 March 2020 Before: Grant DCJ File Number(s): 2018/254651 HEADNOTE [This headnote is not to be read as part of the judgment] Mr Dylan Hesketh (the Applicant) pleaded guilty to one count of discharging a firearm with intent to cause grievous bodily harm to Mr Michael Hughes, contrary to s 33A(1)(a) of the Crimes Act 1900 (NSW) (the discharge offence) and one count of wounding Mr Hughes and being reckless as to causing actual bodily harm to him, contrary to s 35(4) of the Crimes Act (the wounding offence). The Applicant was sentenced to an aggregate term of imprisonment of 11 years, with a non-parole period of seven years and six months. The indicative sentence in relation to the discharge offence was 10 years with a non-parole period of seven years, and the indicative sentence in relation to the wounding offence was three years with a non-parole period of two years. The effective or notional accumulation of those indicative sentences resulted in an increase of the "head sentence" in respect of the discharge offence by one year and the non-parole period by six months. Notwithstanding that he had pleaded guilty to the wounding offence, the Applicant sought to appeal against his conviction on this count, on the basis that both offences involved the same act, namely the discharge of a firearm, although the offences involved different legal elements. In other words, the Applicant submitted that the whole of the criminality of the wounding offence was subsumed by the conviction in respect of the discharge offence, with the argument being that the Applicant had thus been doubly punished for what was in substance the one act. The Applicant also sought leave to appeal against the aggregate sentence on the basis that it was manifestly excessive. The principal issues on appeal were: 1. whether the sentencing judge erred as a result of imposing a conviction and sentence on the Applicant with respect to the wounding offence (ground 1); 2. whether the sentencing judge erred by not making the sentence for the wounding offence wholly concurrent with the sentence for the discharge offence (ground 2); 3. whether the aggregate sentence was manifestly excessive (ground 3). The Court held (Bell P, Price and Hamill JJ agreeing), granting leave but dismissing the appeal against conviction, and dismissing the application for leave to appeal against sentence: 1. The sentencing judge did not err in imposing a conviction and sentence on the Applicant with respect to the wounding offence. Both the discharge offence and the wounding offence had different elements, and the sentencing judge conscientiously considered the criminality attaching to each, as well as properly having regard to the principle of totality. To the extent that there was underlying factual commonality, the sentencing judge, conscious of not imposing punishment that was disproportionate to the overall criminality involved in the two offences, was astute not to engage in this vice. So much was reflected in the small degree of notional accumulation allowed in the aggregate sentence: [54] (Bell P); [64] (Price J); [65], [72]-[74] (Hamill J). Johnson v The Queen (2004) 205 ALR 346; [2004] HCA 15; Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17; Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57; Priovolidis v R [2016] NSWCCA 201; (2016) 78 MVR 59, considered. R v Sessions [1998] 2 VR 304, distinguished. 1. Discussion of concepts of double punishment, commonality of elements of an offence, meaning of "the same act" and the principle of totality: [25]-[53] (Bell P); [64] (Price J); [67]-[78] (Hamill J). 2. With respect to ground 2, the Court held that it made no sense to speak of concurrency where an aggregate sentence had been imposed. Even if an aggregate sentence had not been imposed, however, the Court held that it would have been neither necessary nor appropriate for the sentencing judge to have made the two indicative sentences notionally concurrent, unless he had fully taken the wounding into account in fixing a notional indicative sentence for the discharge offence, which the Court did not consider that the sentencing judge had done: [55]-[56] (Bell P); [64] (Price J); [65], [78] (Hamill J). 3. Although ground 3 was expressed in terms that the aggregate sentence imposed was manifestly excessive, the Applicant had in fact submitted that it was the indicative sentence for the discharge offence which was manifestly excessive, which the Court held was not amenable to appeal. Even if the indicative sentence for the discharge offence had been manifestly excessive, however, it did not necessarily follow that the aggregate sentence imposed was manifestly excessive. The sentence imposed in the present case was not manifestly excessive: [58] (Bell P); [64] (Price J); [65], [79] (Hamill J). JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297; Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353, considered. Judgment 1. BELL P: On 18 March 2020, Mr Dylan Hesketh (the Applicant) entered pleas of guilty before Grant DCJ (the sentencing judge) on the following two counts: "[1] Dylan Hesketh [O]n 18 August 2018, in Darlington Point in the State of New South Wales, did discharge a firearm, namely a shortened .22 calibre bolt action rifle, with intent to cause grievous bodily harm to Michael Hughes s 33A(1)(a) Crimes Act 1900 Law Part Code 63631. [2] Dylan Hesketh [O]n 18 August 2018, at Darlington Point in the State of New South Wales, did wound Michael Hughes, and was reckless as to causing actual bodily harm to Michael Hughes. s 35(4) Crimes Act 1900 Law Part Code 77102." 1. The first count (the discharge offence) carried a maximum penalty of 25 years' imprisonment with a standard non-parole period of nine years; the second count (the wounding offence) carried a maximum penalty of seven years' imprisonment with a standard non-parole period of three years. 2. The Applicant was sentenced to an aggregate term of imprisonment of 11 years, commencing on 19 August 2018, with a non-parole period of seven years and six months. The Applicant's sentence expires on 18 August 2029, and he will be eligible for parole on 18 February 2026. The sentencing judge applied a discount of 25%, accounting for the Applicant's early guilty plea pursuant to s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act). 3. The indicative custodial sentence in relation to the discharge offence was ten years with an indicative non-parole period of seven years. The indicative sentence in relation to the wounding offence was three years' imprisonment with an indicative non-parole period of two years. The effective or notional accumulation of those indicative sentences resulted in an increase of the "head sentence" in respect of the discharge offence by one year and the non-parole period by six months. 4. Notwithstanding that he had pleaded guilty to the wounding offence, the Applicant sought to appeal against his conviction on this count, and also sought leave to appeal against his sentence for the wounding offence. The following grounds were advanced: "1. A miscarriage of justice has occurred as a result of the imposition of a conviction and sentence on the [Applicant] for Count 2. 2. The Sentencing Judge erred by not making the sentence for Count 2 wholly concurrent with count 1." 1. By Ground 3, the Applicant sought leave to appeal against the aggregate sentence on the basis that it was manifestly excessive. 2. Grounds 1 and 2, and the principal focus of argument on appeal, had at their core the fact that the discharge and wounding offences both involved the same act, namely the discharge of a firearm, although the offences involved different legal elements. 3. Of relevance to the Applicant's argument was s 21A of the CSP Act, subsection 1(a) of which provides that: "[i]n determining the appropriate sentence for an offence, the court is to take into account … the aggravating factors referred to in subsection (2) that are relevant and known to the court." Section 21A(2)(g) of the CSP Act then provides that: "The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows— … (g) the injury, emotional harm, loss or damage caused by the offence was substantial". 1. The relevance of these sub-sections of the CSP Act was that, by s 21A(2)(g), the sentencing judge was able to deal with the consequences of the discharge of the firearm even though the fact of wounding was not an element of the discharge offence. This led to the argument that the Applicant had been doubly punished for what was in substance the one act. 2. In other words, the whole of the criminality of the wounding offence was subsumed by the conviction in respect of the discharge offence. This was said to be contrary to the settled principle of the common law that an offender should not be punished twice for the same, or substantially the same, act. [1] As such it was submitted that the conviction for the wounding offence should be quashed, just as the Victorian Court of Appeal, in R v Sessions, [2] quashed a conviction for recklessly causing serious injury on the basis that the criminality involved in that offence had been wholly subsumed by the charge of rape to which the offender had pleaded guilty. The Applicant's contention was that the sentence exceeded what was "a just and appropriate measure of the total criminality involved". [3] 3. Alternatively, it was put that there should have been no notional accumulation of the sentences for the separate offences and that the sentence for the wounding offence should have been wholly concurrent with that for the discharge offence. As will be seen, there is a conceptual flaw in this contention given that the sentence imposed was an aggregate sentence. 4. The Crown, in answer, contended that the sentencing judge had deliberately differentiated the two offences in his remarks on totality, [4] that his Honour had only taken the wounding into account in relation to the wounding offence and that the present case was quite unlike Pearce in that there were no common or overlapping elements of the two offences charged. The Crown contended that s 21A(4) of the CSP Act, which provides that the Court is "not to have regard to any aggravating or mitigating factor in sentencing if it would be contrary to any Act or rule of law to do so", was a basis for distinguishing Sessions, and that the rule against double punishment precluded the sentencing judge from taking into account the wounding for the purposes of passing sentence in respect of the discharge offence. 5. Before turning to a more detailed consideration of the arguments advanced by the Applicant, it is necessary to set out a brief summary of the relevant background facts and the approach of the sentencing judge. Background and proceedings on sentence 1. Having entered pleas of guilty on both counts, the Applicant was sentenced on the basis of a statement of agreed facts. Relevantly, these facts were as follow: "Late on the evening … of 18 August [2018] the [applicant] and two co-accused persons drove to the victim's home. The [applicant] was in the passenger seat [of] the vehicle and the co-accused EVERETT was seated in the back seat and co-accused MCRAE was the driver of the vehicle. Upon arrival at the victim's home the [applicant] got out of the car and went to the front door of the victim's residence where he spoke to the partner of the victim. The victim was not home at the time. The [applicant] returned to the vehicle and MCRAE reversed the car out of the carport and drove it along the driveway towards the levee bank. During that time, the victim's partner called him and stated the [applicant] was looking for him. At approximately 9pm the victim returned home. The victim and CARTER [a friend of the victim] were standing at the rear gate of 23 Kook Street, Darlington Point. MCRAE drove the vehicle and stopped it close to where the victim and CARTER were standing. The victim walked up to the front window of the car where the [applicant] was seated. [The applicant] and the victim then became involved in an argument that concerned the victim[,] the victim's brother and money. Both parties then began exchanging taunts. At one point the victim leaned onto the front passenger seat window of the vehicle. The [applicant] reached under the passenger seat and revealed a sawn off 22 calibre rifle and pointed it at the victim. The victim grabbed the gun and tried to take it away from the [applicant]. The victim and the [applicant] were fighting over the gun. MCRAE said to EVERETT in the back of the car 'Kev do something!' EVERETT attempted to get out of the car but the victim held it closed with one foot. EVERETT went to the other side of the car and got out. The victim let go of the gun and decided to attempt to run away. In doing so he ran behind the vehicle and knocked into EVERETT. The offender got out of the vehicle with the gun. The victim heard the gun cock whilst he was running past the driver's side door towards his home to take cover. The witness CARTER saw the [applicant] hold and point the gun in the general direction where the victim was running. The [applicant] had pointed the gun in the general direction of the victim and shot the victim in the right buttock cheek. The victim heard a loud bang and felt pain [in] his leg. The bullet penetrated the victim's right buttock cheek and lodged in his right hip bone and remains inside his hip bone as the operation [to remove it] is too risky. The [applicant] and Everett got back into the vehicle. MCRAE was still driving the vehicle. MCRAE started the car and sped away from the victim's residence. … The firearm has not been located by NSW Police." (emphasis in original) 1. At an early stage of the proceedings on sentence, on 18 March 2020, the sentencing judge raised the interrelated issues of double punishment and totality as follows: "HIS HONOUR: The next question I wanted to ask you about is that, clearly, the first charge is in relation to an intent to cause grievous bodily harm by the firing of the gun and the second charge is the actual injury that is occasioned— THOMAS: The result. HIS HONOUR: But to some extent, probably the sentence that's going to be imposed on sequence 1, because the maximum penalty is 25 years – count 2 is probably going to be subsumed under that, although you say there should be some limited degree of accumulation? THOMAS: A small part, because it's the intent to do an action and then the result of the action. HIS HONOUR: The end result. THOMAS: But they do overlap significantly. HIS HONOUR: Yes, okay. So part accumulation, but not a great deal, by the sounds of it." 1. The risk of double punishment was also raised by Mr Fokkes (who appeared for the Applicant in the proceedings on sentence) in the course of argument as to the objective seriousness of the offences: "HIS HONOUR: The conduct, taken as a whole with the matters that I've just gone through, is viewed as being objectively very serious. Is it not? FOKKES: All firearms matters are very serious, but the issues that you've listed are intrinsic to the commission of the offence itself and are reflected in the maximum penalty as a result. Aggravating features are objective features that aren't taken into account into the objective seriousness assessment, so, in my submission, they would go towards – firstly, they're intrinsic aspects of the commission of the offence and that is reflected in the maximum penalty. So when you list those features, they are prerequisites for liability under this section. If they're intrinsic aspects of the offence, they can't be used to say it's a particularly bad example of this type of offence because they are required to make out liability. HIS HONOUR: It's a particularly bad example, though, of reckless wounding, is it not, in the fact that most recklessly woundings-- FOKKES: Yes, it is. HIS HONOUR: --you have, it's either by way of glass iron bar or knife. Here, it's the firearm. FOKKES: It is, but, again, you might be straying into the area of double counting if the element of firearm is present in sequence 1 or now count 1-- HIS HONOUR: Well, I can look at the wounding, though, in the fact that here's a bullet that's lodged in the man's hip that he's going to carry for the rest of his life. FOKKES: That's certainly something you can take into account, yes, I concede that, and that the fact that surgery is too risky to get it out. It'll be stuck there. It's not a good wounding. Nonetheless, the fact that it was inflicted by a firearm is an intrinsic aspect of the offence under count 1. You need to, I submit, be a little careful. Certainly, there was some provocation, but, as I concede in my written submissions, after that provocation, that's when the intent was formed, I submit, to then discharge the firearm with the intent to cause grievous bodily harm." (emphasis added) 1. The focus of the proceedings on sentence then turned to matters including the subjective circumstances of the Applicant, aggravating factors and the principles of sentencing for violent offences involving unlicensed firearms. Remarks on sentence 1. The sentencing judge's remarks commenced with a recital of the relevant maximum penalties and standard non-parole periods for the two offences charged. His Honour acknowledged that he was to "steer by", but "not aim for" the maximum penalties and standard non-parole periods, in view of their status as "important guideposts in the assessment of sentence". 2. His Honour then turned to consider aggravating factors under s 21A(2) of the CSP Act, accepting that the Applicant's offending conduct was aggravated, per s 21A(2)(j), by his being subject to a "community correction order" at the time of the shooting. The location of the shooting, in the driveway of the victim's home, was held to be another aggravating factor: see s 21A(2)(eb). The sentencing judge, when identifying aggravating factors, did not refer to s 21A(2)(g) of the CSP Act, [5] although his Honour did refer to the Victim Impact Statement of Mr Hughes. 3. When discussing the objective seriousness of the offending conduct, the sentencing judge made the following observations: "The Crown submits that the offender's conduct is below the mid-range of seriousness, but is not on the low end of seriousness. The offender contends that there was little pre-planning and a degree of aggression on the part of the victim. It was submitted by Mr Fokkes that the objective seriousness was slightly below the mid-range. This is not a case of reckless wounding by broken glass, iron bar, or knife. The offender armed himself with an illegal, shortened firearm, which would appear to have been loaded at all times. He concealed the shortened firearm under the seat of the motor vehicle so that it could not be seen. Although he says that he armed himself with the intention of intimidating the victim, his conduct went far beyond that. After the initial struggle over the gun, he did not desist, but rather exited the vehicle to place himself in a position where he could shoot the victim. It was dark. Nightfall had occurred. It was in a residential area. He was on ice. There were others around him. Still, he did not desist. He cocked the gun while the victim was running away towards his home to take cover. Still, he did not desist. He pointed the gun and shot the victim while under the influence of ice. He not only shot the victim, but his actions had the potential to place others in harm due to it being nightfall, a residential area, and his ingestion of ice. However, he is not be sentenced for the potential harm; he is to be sentenced for his actions of discharging a firearm with intent to cause grievous bodily harm and reckless wounding. His conduct was objectively serious. In my view, his conduct is slightly below the mid-range." (emphasis added) 1. After discussing the Applicant's subjective circumstances, remorse, prospects of rehabilitation, a Bugmy [6] submission (which was rejected), the principle of parity and special circumstances, the sentencing judge then addressed the principle of totality. Under that sub-heading, his Honour said: "There are two offences before the Court. One offence essentially deals with intent to fire the firearm. The second offence deals with what happens after the firearm has been fired. It is necessary, in my view, that there be some degree of accumulation, but, in doing so, I take into account the principles of totality and what was said in Pearce v The Queen about proportionality." (emphasis added) 1. This passage from the remarks on sentence does not support the Applicant's submission that his Honour made no distinction between the two offences. 2. Of some further relevance to the issues sought to be raised on appeal was the particular emphasis that was placed by the sentencing judge, in the context of the discharge offence, on the fact that the Applicant had possession and made use of a firearm. His Honour referred to and quoted the observations of Rothman J in R v Campbell; R v Smith [7] that: "The possession and use of firearms in society is an extremely troubling aspect for which general deterrence and specific deterrence loom large. The possession of weapons … has become far too common in society. The possession of such weapons undermines the fabric of society and, when possessed for the purpose of criminal activity, puts at risk the rule of law and the appropriate relationships between members of the society". His Honour further stated that: "People should not possess firearms. It is illegal and strikes at the fabric of society. People should not use firearms and, if they do, they should be sent to gaol for a long period of time to deter other would-be users of firearms. The offender had possession of a firearm which was shortened. He was not entitled to possess it. He armed himself with intent to intimidate, but shot someone at night with others around in a residential area when under the influence of ice. The Court needs to impose condign punishment in these circumstances." 1. His Honour then proceeded to nominate the indicative sentences for the discharge and wounding offences before imposing the aggregate sentence. As noted earlier in these reasons, [8] there was a relatively small degree of notional accumulation. Consideration 1. The principle against double punishment is easy enough to state but perhaps more difficult to apply. In Hoar, Gibbs CJ, Mason, Aickin and Brennan JJ observed that there is "a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act". [9] The generality of that observation is important and much will turn on what is understood by "the same act" because, as Gleeson CJ observed in Environment Protection Authority v Australian Iron & Steel Pty Ltd, "[t]o assert that a person may not be convicted of multiple offences for the same facts invites a request for a more precise definition of the relevant facts". [10] 2. In Pearce there was a degree of refinement of the generality of the statement made in Hoar, although the plurality said that it was not necessary for them to decide whether the principle against double punishment was "properly to be characterised as good sentencing practice or as a positive rule of law". [11] The refinement was to focus on common elements of multiple offences charged. 3. Pearce relevantly involved convictions for malicious wounding or infliction of grievous bodily harm with intent to do such harm under s 33 of the Crimes Act 1900 (NSW) and for the offence under s 110 of the Crimes Act of breaking and entering a dwelling house and while therein inflicting grievous bodily harm upon any person. In Pearce the plurality observed, in a passage relied upon by the Applicant, that: "To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts." [12] (emphasis added) 1. Their Honours also said that: "It is clear in this case that a single act (the appellant's inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the enquiry is not to be attended by 'excessive subtleties and refinements'. It should be approached as a matter of common sense, not as a matter of semantics." [13] 1. The plurality in Pearce did not indicate whether or not the double punishment which they held to have been imposed in that case meant that no conviction should have been entered in respect of one of the offences (and the conviction on that count quashed) or the circumstances in which a concurrent (or partially concurrent) sentence would be appropriate. 2. As to the former matter, the position may be contrasted with the approach taken by Hayne JA (as his Honour then was) in Sessions, who held that a conviction on a count of recklessly causing serious injury, to which the offender had pleaded guilty, should be quashed because the very act of conviction involved an element of double punishment for the offence of rape to which he had also pleaded guilty and accordingly been convicted. [14] Sessions has been explained as a case where the whole of the offender's criminality was encompassed in one charge. [15] 3. As to the latter matter, namely concurrency or cumulation of sentences, the plurality in Pearce suggested that, at least in the circumstances of that case, "to make the sentences … wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count". [16] The matter was simply remitted "to be dealt with consistently with the reasons for judgment of this Court". [17] By way of contrast, in Nguyen v The Queen, [18] a case in which the appellant had pleaded guilty to charges of manslaughter and wounding with intent to cause grievous bodily harm in respect of the same victim on both counts, five members of the High Court, in two separate judgments, acknowledged that it was open to the sentencing judge to impose wholly concurrent sentences provided that the criminality of both offences for which the appellant was sentenced was appropriately reflected in the sentence for manslaughter. [19] 4. In Johnson, a 2004 decision of the High Court, the appellant was charged and convicted on two counts of attempting to obtain possession of quantities of two prohibited drugs (ecstasy and cocaine) on a single occasion by going to a hotel room to collect and pay for the drugs. The two counts were as follows: "1. On or about 2 November 2000 at Perth the [appellant] did without reasonable excuse, attempt to obtain possession of prohibited imports to which s 233B of the Customs Act 1901 (Cth) applied namely, narcotic goods consisting of a quantity of 3,4 Methylenedioxymethamphetamine (commonly called 'Ecstasy'), being not less than the commercial quantity applicable to that narcotic substance, contrary to s 233B(1)(c) of the Customs Act 1901. 2. On or about 2 November 2000 at Perth the [appellant] did without reasonable excuse, attempt to obtain possession of prohibited imports to which s 233B of the Customs Act 1901 applied namely, narcotic goods consisting of a quantity of Cocaine, being not less than the trafficable quantity applicable to that narcotic substance, contrary to s 233B(1)(c) of the Customs Act 1901." 1. The appellant had been sentenced in respect of the two offences, with the sentence for the second offence reduced on account of the "totality principle". [20] The plurality in the High Court observed that: "It is true that the appellant pleaded guilty to two offences, but they had much in common: one inducement, one payment for performance, one occasion, one package and one receipt of it by the appellant. This commonality did require that careful regard be had, in deciding the appellant's appeal, to the totality principle." [21] 1. The plurality was critical of the observation of Malcolm CJ in the Western Australian Court of Criminal Appeal that the application of the principle against double punishment as articulated in Pearce (set out at [27] above) would obscure the sentencing process [22] because of his Honour's assessment that: "It was not a case where there were two offences where, for example, an act which was itself an offence was also an element of the second offence. There were two separate offences. There was no common element. The relevant circumstance was that two separate offences of possession and attempting to obtain possession of two different drugs occurred at the same time. In my opinion, this is not an example of the one act comprising two separate offences, but two separate acts, one of obtaining possession of ecstasy and one of attempting to obtain possession of cocaine." [23] 1. The plurality in the High Court held that "proper regard" had not been had to "the commonality of elements of the offences". [24] The Court did not, however, identify what the common elements of the two offences were. If, by using the expression "elements of the offences", their Honours were referring to those matters which needed to be proved beyond reasonable doubt to establish the appellant's guilt in respect of each offence charged, it is, with respect, difficult to understand what those common elements were. [25] More likely, in my view, is that their Honours were using the expression in an extended sense to refer to common conduct which went towards establishing the different elements of the two offences, being the matters referred to in the passage extracted at [33] above. As such, their Honours were highlighting an aspect of the totality principle as adopted in Mill, which requires the sentencing court, in cases of multiple offences, "to look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences". [26] 2. Part of this task is to ensure that the criminality involved in a particular act is not given disproportionate weight because it is a common feature or underlying fact, component or element of multiple offences when looking at the matter, as Pearce requires, as one of common sense and not semantics. Both Johnson and Nguyen illustrate the plurality's concern in Pearce to avoid double punishment applies even where there are not common elements in a series of offences in the strict sense, but also where offences are "inextricably linked" by common facts. [27] 3. What I take, therefore, from Johnson and its treatment of Pearce is that a sentencing court, and an intermediate appellate court reviewing a sentence, must not overlook or underplay the significance of common aspects of an offender's conduct when the offender is found guilty of, or pleads guilty to, multiple offences to which that common conduct has contributed. This is so as to ensure that the offender is not sentenced in a way that is disproportionate to the totality of his or her criminality. Johnson points up an overlap, at least, between Pearce's concern with the avoidance of double punishment and the totality principle. [28] The totality of criminality involved in the commission of multiple offences is likely to be lower the greater the overlap or commonality of conduct in relation to the separate offences found to have been committed. That does not mean that two or more offences will not have been committed and should not be the subject of sentence where the offences have different elements. 4. As Gleeson CJ observed in EPA, "it is one thing to say that a person may not be put in jeopardy twice for the same offence; it is another thing to say that a person may not be put in jeopardy twice for the same conduct". [29] A corollary of this is that the fact that the same set of underlying acts may contribute to or relate to more than one offence does not mean that the offender is necessarily being punished twice when sentenced for the different offences. Decisions such as Pearce, Johnson, Nguyen and R v Hilton [30] (in this Court and applying Pearce) mean, however, that where there is a commonality of underlying facts, there may be a high degree of, or even complete, concurrency where separate sentences are being imposed or, where an aggregate sentence is being imposed, there may be no, or only a modest degree, of notional cumulation, reflecting the extent of the commonality of the underlying conduct. [31] 5. To make this observation is to echo the frequently cited statement of Howie J in Cahyadi v The Queen: [32] "[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." 1. Neither Pearce nor any other High Court authority holds that, where two or more offences are charged, the fact that the conduct that establishes one offence may also establish the commission of another offence means that a conviction achieved in respect of one of those offences should be quashed, cf Sessions. The position may be different where the second offence is merely an aggravated form of the first [33] or where its prosecution would have amounted to an abuse of process. [34] 2. Nor does any High Court authority suggest that the prosecutorial discretion in the formulation of charges should be confined to constrain the charging of offences which entail underlying conduct of an offender which is common to more than one of the offences charged. As the plurality in Pearce observed, "[t]he decision about what charges should be laid and prosecuted is for the prosecution". [35] That important principle is subject, of course, to cases where a charge is held to amount to an abuse of process. [36] 3. Returning to Pearce, the offences charged in that case overlapped in terms of their elements, using that term in a technical sense, in that both of the counts charged had in common the infliction of grievous bodily harm. Nahlous was a case where an offence which included the element of a sale was held necessarily to involve the obtaining of a financial gain, being the other offence charged. As such, the "receipt offence" was subsumed by the more serious "sale offence" [37] and there was no separate act of criminality. [38] 4. Priovolidis v R [39] provides a valuable explanation by Gleeson JA (with whom Price J and Hidden AJ agreed) of what his Honour described as the "common element" principle "identified in Pearce" and "reiterated in Johnson". [40] His Honour said that: "The premise of the common element principle is that the offender is being sentenced for two or more charges which arise out the same circumstances, or, as stated in Pearce (at [3]), the 'two charges arose out of a single episode'." [41] 1. Gleeson JA went on to observe that "the existence of overlapping elements between the two offences does not in and of itself engage the double punishment principle described in Pearce. A closer examination of the facts is required." [42] His Honour framed the critical issue in that case as "whether the applicant's driving on 21 August 2015 is, properly viewed, a single act or episode (as the applicant contended) or two separate and discrete acts giving rise to two separate offences (as the Crown contended)." [43] The applicant in Priovolidis had been charged with two offences: one, under s 51B(1) of the Crimes Act, of failing to stop when he should have known the police were in pursuit and driving in a manner dangerous to others; and the other, under s 52A(4), of aggravated dangerous driving occasioning grievous bodily harm. 2. By a close and careful analysis of the facts, Gleeson JA demonstrated that although the two offences occurred as part of the same sequence of events and within a 10-minute period of each other, it was nonetheless clear that the two offences were separated in time and space, each occurring at different points in time and at different locations on the single journey. His Honour's analysis of the sentencing judge's remarks on sentence also disclosed that, although early aspects of those remarks could be taken to refer to the offending globally, they showed that the sentencing judge treated the two offences separately [44] such that there was no common element and, on proper analysis, they did not arise from a single episode or incident. 3. Unlike Priovolidis, it is far more difficult in the present case to conclude that the two offences to which the Applicant pleaded guilty did not arise from a single episode or incident. To use the language of the plurality in Johnson, the two offences to which the Applicant pleaded guilty "had much in common". [45] So also, in the language of Bell and Keane JJ in Nguyen, [46] the Applicant's liability for the discharge offence was "inextricably linked" to the wounding offence. 4. On the other hand, it must also be observed that, other than in the extended sense in which the plurality in Johnson appears to have used the expression "elements of the offences", the two offences to which the Applicant pleaded guilty contained quite different elements. Thus, it was not an element of the discharge offence that the discharge of the firearm in fact wound anyone. Conversely, whereas wounding was an essential element of the wounding offence, that wounding was not required to be caused by the discharge of a firearm. Such wounding may be by other means such as, for example, glassing or hitting. Further, it was not an element of the wounding offence (under s 35(4) of the Crimes Act) that the wounding amount to grievous bodily harm. [47] Additionally, the discharge offence required intent to cause grievous bodily harm whilst the mental element of the wounding offence was recklessness as to causing actual bodily harm. [48] 5. The two offences to which the Applicant pleaded guilty also have quite different emphases. The seriousness of the discharge offence derives in part from the necessary possession of the firearm itself, a matter to which the sentencing judge gave particular attention in his sentencing remarks. [49] The wounding offence, on the other hand, is what has been described as a "result offence" where, generally speaking, the degree of seriousness of the offence will significantly depend upon the seriousness of the wounding. [50] 6. Although there were no common legal elements of the two offences to which the Applicant pleaded guilty in the same, direct way in which there were in Pearce, the discharge of the firearm was an explicit element of count 1 and was also that which caused an essential element of count 2, namely the wounding, to occur. To that extent, there were common elements of the two offences although, unlike in Pearce, the overlap was less direct. 7. The sentencing judge analysed the two offences as involving different elements notwithstanding a degree of overlap. This is most clearly seen in the passage from the remarks on sentence set out above [51] including the reference to Pearce. It may also be seen in the third of the paragraphs set out at [20] above where his Honour said that the Applicant was "to be sentenced for his actions of discharging a firearm with intent to cause grievous bodily harm and reckless wounding." [52] This sentence appears in the same paragraph of the sentencing remarks in which the sentencing judge expressed the view that the Applicant's conduct was "slightly below the mid-range" of objective seriousness. Contrary to a submission made on behalf of the Applicant, in context, this description was not global but applied equally and distributively to the conduct which comprised the two offences. 8. To the extent that there was overlap or a common factual substratum between the two offences, it is reasonable to infer that this was reflected in the relatively small degree of notional accumulation in the two indicative sentences. That represented the sentencing judge giving effect to the totality principle and thereby addressing the vice of double punishment. 9. This analysis of the remarks on sentence is reinforced by the interactions between the sentencing judge and counsel for both the Crown and the Applicant which have been extracted above. [53] The sentencing judge was evidently acutely conscious of the commonality of the act and facts underlying the two offences charged. 10. True it is that the sentencing judge could and arguably should have had regard to the seriousness of the injury sustained by the victim as an aggravating factor for the purposes of sentencing in relation to the discharge offence. [54] Had he done so, that would certainly have supported the argument that the criminality in respect of the wounding offence was "encompassed in" or subsumed by the punishment meted out for the discharge offence. Although wounding was not an element of the discharge offence, it was an "incident" of it, and was therefore "relevant and necessary" to be fully taken into account for sentencing purposes, to adopt the useful language of Simpson AJA in dissent in Baradi v The Queen. [55] But the sentencing judge appeared, in the passage of his remarks extracted at [21] above and in his interactions with counsel, to have been at pains to confine an assessment of the wounding to his consideration of the wounding offence. And in referring to aggravating factors in his remarks on sentence, his Honour did not refer to s 21A(2)(g) of the CSP Act. [56] This may well have been, as counsel for the Crown submitted, because his Honour was concerned not to engage in double punishment. 11. For the above reasons, Grounds 1 and 2 are not made out. Both offences contained different elements and the sentencing judge conscientiously considered the criminality attaching to each [57] as well as properly having regard to the principle of totality. To the extent that there was underlying factual commonality, the sentencing judge, conscious of Pearce and of not imposing punishment that was disproportionate to the overall criminality involved in the two offences, was astute not to engage in this vice. So much was reflected in the small degree of notional accumulation allowed in the aggregate sentence. 12. There is a further difficulty with Ground 2 which, it will be recalled, was that "the Sentencing Judge erred by not making the sentence for Count 2 wholly concurrent with count 1." This ground overlooks the fact that an aggregate sentence was imposed and that, other than notionally and by reference to the indicative sentences, it makes no sense to speak of concurrency where an aggregate sentence has been imposed. 13. Even if an aggregate sentence had not been imposed, however, it would not, in my opinion, have been either necessary or appropriate for the sentencing judge to have made the two indicative sentences notionally concurrent unless he had fully taken the wounding into account in fixing a notional indicative sentence for the discharge offence. For the reasons I have given above, I do not consider that his Honour did this. 14. Attention is now turned to the third ground of the appeal, namely the claim that the aggregate sentence imposed was manifestly excessive. Manifest excess 1. Although Ground 3 is expressed in terms that the aggregate sentence imposed was manifestly excessive, it was put in written submissions that the indicative sentence for the discharge offence was manifestly excessive. This suffers the same vice as has been noted above in relation to Ground 2. As R A Hulme J observed in JM, [58] "indicative sentences recorded in accordance with s 53A(2) [of the CSP Act] are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence". Moreover, even if the indicative sentences (or one or more of them) are assessed as being excessive, it does not necessarily follow that the aggregate sentence is excessive. [59] 2. The principles governing an appeal against sentence on the ground of manifest excess are well established [60] and were recently summarised by this Court in Singh v R: [61] "(1) in order to succeed on a ground of appeal alleging that a sentence is manifestly excessive, the applicant must establish that the sentence was 'unreasonable' or 'plainly unjust': see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at 25; Hill v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]; (2) intervention is warranted only when 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, or where the sentence imposed is so far outside the range of sentences available that there must have been error: see Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; (3) an appellate court will not interfere in a sentence merely because it may have exercised its sentencing discretion differently: see Obeid at [443]; (4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle: see Obeid at [443]; (5) it is only if an appellate court concludes that no judge properly exercising his or her sentencing discretion could have arrived at the same result that it is able to give any consideration to quashing the sentence and imposing a different one: see Edwards v R [2020] NSWCCA 141 at [23]; (6) the extent of the reduction of the non-parole period because of special circumstances is a matter within the discretion of the sentencing judge: see MD v R [2015] NSWCCA 37 at [40]; R v Cramp [2004] NSWCCA 264 at [31]; Trad v The Queen (2009) 194 A Crim R 20; [2009] NSWCCA 56 at [33]." 1. Focussing only, as the Applicant's submissions did, on the indicative sentence in respect of the discharge offence, the argument was that the sentencing judge's assessment of the objective seriousness of the offence as slightly below the mid-range indicated a starting point of less than 12.5 years' imprisonment (given that the maximum sentence was 25 years) from which a 25% discount was required for the early guilty plea in addition to an allowance of reduction for what the sentencing judge found was the Applicant's remorse. It was contended that this should have led to a lower indicative sentence than 10 years' imprisonment. But this submission ignored a number of serious aggravating factors which have been noted above. [62] When those matters are taken into account, coupled with the need for specific and general deterrence, the indicative sentence for the discharge offence cannot fairly be characterised as manifestly excessive. 2. The Applicant's submissions, moreover, failed to address whether or not the aggregate sentence was manifestly excessive, other than simply asserting that because the indicative sentence for the discharge offence was manifestly excessive, it followed that the aggregate sentence was as well. That does not follow, as was pointed out in JM. 3. Ground 3 of the appeal should also be rejected. 4. It follows that the Applicant's appeal against his conviction for the wounding offence should be dismissed, as should his application for leave to appeal against his sentence. Accordingly, I propose the following orders: 1. Grant leave to appeal against conviction. 2. Dismiss the appeal against conviction. 3. Dismiss the application for leave to appeal against sentence. 1. PRICE J: I agree with Bell P and the orders that the President proposes. 2. HAMILL J: I have had the considerable advantage of reading the draft judgment of Bell P. I agree with the orders proposed by the President and generally with his Honour's reasons. His Honour sets out the facts and circumstances of the incident giving rise to the charges, and the course the case took in the District Court. I gratefully adopt his Honour's careful survey of the relevant case law. 3. With the benefit of legal advice, the applicant pleaded guilty to two offences arising out of precisely the same physical act, that is, the discharge of a shortened .22 calibre rifle while it was aimed at, or in the direction of, the victim, Michael Hughes. By his plea to the first count, the applicant admitted that he fired the gun with the specific intention to inflict grievous bodily harm. By his plea to the second, he admitted that he wounded the victim and that he acted recklessly (as to the infliction of actual bodily harm, a mental element that can be established by proof of intention) [63] . The first count did not require proof of injury, although the consequences of the discharge could be taken into account in deciding the appropriate penalty, [64] provided that process did not involve the applicant being punished for a more serious offence, or for an aggravated form of the offence, than that to which he pleaded guilty. [65] 4. This is not a case where the two offences merely arose out of the same course of conduct or series of events. In this case, there was one single act. That fact lay at the heart of the applicant's complaint and his contention that his conviction for reckless wounding should be set aside or, if that submission is not accepted, that the sentencing Judge was obliged to impose a sentence where there was no actual or notional accumulation at all. His argument was that he was punished twice for the same conduct or offence. 5. I have hesitated in rejecting the applicant's contentions, largely because of the similarity between the circumstances of his case and the Victorian case of R v Sessions [1998] 2 VR 304, and the approach taken by Hayne JA (as his Honour then was) in that case. However, I have concluded that Bell P is correct, that the applicant's arguments cannot succeed, and his appeal must be dismissed. 6. There is no doubt that a single act can give rise to more than one offence. A not uncommon case is where a single act of violence, gross negligence or dangerous driving causes the death or serious injury of more than one person. [66] As Hayne JA acknowledged in R v Sessions at 308: "[i]t has been said often that it is not the law that a person shall not be punished twice for the same act". 1. His Honour referred to the judgment of Humphreys J in R v Thomas [1950] 1 KB 26, to "standard texts" on criminal law, and to some older cases. Unless the case is one that falls within principles governing an autrefois plea, res judicata or double jeopardy, the prohibition is on "double punishment" for the same offence. The judgments of Hayne JA in R v Sessions and the President in the present case demonstrate that some of the distinctions and lines of demarcation are very fine and, perhaps at times, illusory. [67] 2. As the President's judgment shows, none of the High Court authorities in this area justifies the conclusion that the applicant's conviction on the second count should be quashed. 3. Because of the applicant's substantial reliance on the decision in R v Sessions, it is worth identifying the basic facts of that case, the two charges there under consideration, and the reasons for the conclusions of the Victorian Court of Appeal. The appellant was charged with the rape of a child by inserting his finger into the child's vagina. This single act caused severe internal injury to the child. The Victorian Director of Public Prosecutions thought it necessary to add a count of recklessly causing those serious injuries to "put the accused on notice that it was alleging that the relevant reckless intention accompanied the act of rape". [68] 4. In R v Sessions, Hayne JA said at 309 that "sometimes the search is described as being for the gist or gravamen of the two offences under consideration". The separate judgment of Eames AJA shows that the real issue that arose by the addition of the reckless infliction of injury charge in the presentment charging rape concerned the mental element of the two offences. There was no issue that the sentencing judge was required to take the injury into account in sentencing for the offence of rape under the relevant legislation. The Director sought to justify the addition of the second count to establish that the appellant acted recklessly. However, Eames AJA held that the "sentencing Judge would have been entitled to take into account on the offence of rape the fact that the accused had a reckless disregard for the fact that serious injury could be caused to the victim." [69] Hayne JA, with whom Batt JA agreed, held at 314 that these were "not considerations sufficient to warrant the laying of two charges as was done in this case" and the practice of "laying two charges … is a practice firmly to be discouraged." 5. Upon a review of the record of the proceedings in the applicant's case, including the exchanges during oral argument and parts of the sentencing judgment, [70] the decision in R v Sessions is readily distinguished. Putting aside the statutory framework applying in Victoria, a matter discussed at some length by both Hayne JA and Eames AJA, the gravamen of the first count against the present applicant was the discharge of the firearm with the specific intention to inflict grievous bodily harm. The gravamen of the second count was the infliction of the injury. It is true that both offences were established by the same single act and that the intention accompanying the second count (recklessness) was wholly subsumed by the mental element required for the first (specific intention). 6. While it may have been possible to take account of the injury in punishing for the more serious count without breach of the principle in The Queen v De Simoni, the record establishes that the sentencing Judge did not do so. When he identified the aggravating features of the case under s 21A(2), his Honour did not refer to the seriousness of the injury or to s 21A(2)(g). [71] Apart from recounting the victim impact statement and the agreed facts, no substantial reference was made to the injury. There is nothing to suggest the injury was taken into account in assessing the objective seriousness and appropriate sentence for the offence of discharging the firearm with intent. The transcript of the exchanges with counsel suggests the opposite. 7. The very modest amount of notional accumulation, which is transparent from the individual indicative sentences and the aggregate sentence, [72] also supports the conclusion that there was no aspect of double punishment. The small degree of notional accumulation reflected the fact that the second count specifically encompassed the wounding, whereas the first count did not. As Judge Grant put it in his sentencing judgment, under the heading "Totality" "There are two offences before the Court. One offence essentially deals with intent to fire the firearm. The second offence deals with what happens after the firearm has been fired." [73] 1. His Honour then said it was necessary that there be some accumulation but only in accordance with principles of totality and proportionality and the High Court's decision in Pearce v The Queen. [74] Bell P has discussed the operation of that decision at [26]-[29]. It is apparent, by the sentencing Judge's reference to Pearce v The Queen, that he did not fall into error by punishing the applicant twice for the same offence or conduct. 2. I repeat my concurrence with Bell P that neither ground 1 (an appeal against conviction) nor ground 2 (an application for leave to appeal against sentence), each of which was predicated on the assertion of double punishment, can be sustained. 3. As to ground 3, the aggregate sentence was a severe one, particularly considering the 25% reduction to the indicative sentence to reflect the utilitarian value of the pleas of guilty. However, the offences were extremely serious, and the sentence is not one that can properly be described as manifestly unreasonable or excessive, or plainly wrong or unjust. 4. For those additional reasons, I agree with the orders proposed by Bell P. ********** Endnotes 1. See R v Hoar (1981) 148 CLR 32 at 38; [1981] HCA 67 (Hoar); Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40] (Pearce). 2. [1998] 2 VR 304 (Sessions). 3. Postiglione v The Queen (1997) 189 CLR 295 at 307–308; [1997] HCA 26; Mill v The Queen (1988) 166 CLR 59 at 63; [1988] HCA 70 (Mill); see also Johnson v The Queen (2004) 205 ALR 346; [2004] HCA 15 at [18]–[21] (Johnson). 4. See [21] below. 5. See [8]–[9] above. 6. See Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. 7. [2019] NSWCCA 1 at [9]. 8. See [4] above. 9. Hoar at 38. 10. (1992) 28 NSWLR 502 at 507–508 (EPA). 11. Pearce at [41] (McHugh, Hayne and Callinan JJ). 12. Pearce at [40]. 13. Pearce at [42]. 14. Sessions at 314–315. 15. Jidah v The Queen (2014) 246 A Crim R 368; [2014] NSWCCA 270 at [50]; see also Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58 at [17] (Nahlous). 16. Pearce at [49]. 17. Pearce at [50]. 18. (2016) 256 CLR 656; [2016] HCA 17 (Nguyen). 19. Nguyen at [39], [62]. 20. Johnson at [11]. 21. Johnson at [33] (Gummow, Callinan and Heydon JJ). 22. Johnson at [29]. 23. Johnson v The Queen (2002) 26 WAR 336; [2002] WASCA 102 at [26]. 24. Johnson at [35]. 25. See [32] above where the two offences charged have been noted. 26. Mill at 63, quoting D A Thomas, Principles of Sentencing (2nd ed, 1979, Heinemann) at 56–57; quoted in Johnson at [18]. 27. See Nguyen at [39]. 28. Cf, Kirby v R [2021] NSWCCA 162 at [38]. 29. EPA at 507. 30. (2005) 157 A Crim R 504; [2005] NSWCCA 317. 31. See, for example, Nguyen at [65]; Cashel v R [2018] NSWCCA 292 at [117]. See also Portolesi v The Queen (2012) 227 A Crim R 170; [2012] NSWCCA 157 at [46], which makes reference to the sentences which were imposed in Pearce following the remittal of the case to the Court of Criminal Appeal. 32. (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27]. 33. See R v Dodd (1991) 56 A Crim R 451. 34. See, for example, Nahlous. 35. Pearce at [30], citing Maxwell v The Queen (1996) 184 CLR 501 at 512; [1996] HCA 46. 36. Nahlous at [13]. 37. Nahlous at [16]. 38. Nahlous at [17]. 39. [2016] NSWCCA 201; (2016) 78 MVR 59 (Priovolidis). 40. Priovolidis at [40]. 41. Priovolidis at [41]. 42. Priovolidis at [50]. 43. Priovolidis at [51]. 44. Priovolidis at [55]–[58]. 45. Johnson at [33]. 46. Nguyen at [39]. 47. Cf, s 35 of the Crimes Act. 48. It should be noted in this context, however, that by s 4A of the Crimes Act, "if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge". 49. See [23] above. 50. McCullough v The Queen (2009) 194 A Crim R 439; [2009] NSWCCA 94 at [37]. 51. See [21] of these reasons. 52. Emphasis added. 53. See [15]–[16] of these reasons. 54. See [8]–[9] above. 55. (2018) 273 A Crim R 468; [2018] NSWCCA 143 at [46]. 56. See [19] above. 57. Cf, JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [39(4)] (JM). 58. JM at [40]. 59. See also McFarland v R [2021] NSWCCA 79 at [55]. 60. See, for example, Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]. 61. (2020) 104 NSWLR 43; [2020] NSWCCA 353 at [47]. 62. See [19] of these reasons. 63. Crimes Act 1900, s 4A. 64. Crimes (Sentencing Procedure) Act 1999, ss 3A(g), 21A(2)(g). 65. The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31. 66. See, for example, Regina v Janceski [2005] NSWCCA 288; Dean v R [2015] NSWCCA 307. 67. See, for example, R v Sessions [1998] 2 VR 304 at 309, 310, 313-313; Bell P at [25]-[32]. 68. R v Sessions at 316 (Eames AJA). 69. R v Sessions [1998] 2 VR 304 at 322-323 (Eames AJA). 70. Set out by Bell P at [15]-[16] and [20]-[21]. 71. Section 21A(2)(g) provides that it is an aggravating feature of an offence if "he injury, emotional harm, loss or damage caused by the offence was substantial". 72. See Bell P at [4], [51] and [55]. 73. Remarks on Sentence at 10. 74. Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57. 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: 08 November 2021