Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ladas v R [2022] NSWCCA 160 Hearing dates: 23 May 2022 Date of orders: 22 July 2022 Decision date: 22 July 2022 Before: Beech-Jones CJ at CL at [1] Wilson J at [6] Dhanji J at [7] Decision: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentence imposed on the applicant by Colefax SC DCJ in the District Court on 9 November 2020 is quashed. (4) In lieu thereof, impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and fix: (a) Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) an aggregate sentence of 8 years commencing on 9 March 2020 and expiring on 8 March 2028; (b) a non-parole period of 5 years commencing on 9 March 2020 and expiring on 8 March 2025; and (c) a balance of term of 3 years commencing on 9 March 2025 and expiring on 8 March 2028. Catchwords: CRIME – appeals – appeal against sentence – domestic violence offences – dysfunctional background – reduced moral culpability – specific deterrence – general deterrence – rehabilitation – community protection – maximum penalties reserved for worst category offences – resentenced Legislation Cited: Crimes Act 1900 (NSW), s 37(1) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 35A, 44, 53A Criminal Appeal Act 1912 (NSW), s 5(1)(c) Criminal Procedure Act 1986 (NSW), s 166 Weapons Prohibition Act 1998 (NSW), s 7(1) Cases Cited: BT v R [2019] NSWCCA 147 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 GS v R; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65 JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 Khawaja v R [2014] NSWCCA 80 Kliendienst v R [2020] NSWCCA 98 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Engert (1995) 84 A Crim R 67 R v Ladas [2020] NSWDC 832 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 The State of Western Australia v Munda (2012) 43 WAR 137; [2012] WASCA 164 Category: Principal judgment Parties: Spiros Ladas (Applicant) Regina (Respondent) Representation: Counsel: I Todd (Applicant) M Kumar (Respondent) Solicitors: Sanford Legal (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2019/165739 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: R v Ladas [2020] NSWDC 832 Date of Decision: 9 November 2020 Before: Colefax SC DCJ File Number(s): 2019/165739 Judgment 1. BEECH-JONES CJ at CL: I have had the benefit of reading the judgment of Dhanji J. Subject to what follows I agree with his Honour's reasons. 2. In relation to ground 1, the sentencing judge's finding that the applicant's moral culpability was reduced was a matter that his Honour was required to consider in determining the appropriate sentence, especially so far as his Honour had to consider the weight to be attached to the various sentencing factors such as general deterrence, specific deterrence, the promotion of rehabilitation and the need to protect the community. The balance of the sentencing judgment and a consideration of the sentences imposed leads to the conclusion that either the finding was not taken into account or at the very least there was a failure in this case to explain how it was considered. In relation to the latter, in some cases how such a finding was considered will be implicit. In relation to the former, as observed by Dhanji J, by reference to the passages from Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [46] and Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [57], it does not automatically follow from a finding that an offender's moral culpability is reduced, that a sentence will be lower than it might otherwise have been, and that is especially so in cases involving domestic violence where a consideration of the need to protect the community is often especially important. 3. Otherwise, that the sentencing process went awry in this case is best illustrated by the indicative sentences for sequences 27, 36, 40 and 45 in respect of which, prior to any allowance for the applicant's plea of guilty, the sentence was at, or very close to, the maximum in circumstances where the finding of objective seriousness could not justify such a sentence (even allowing for the inclusion of offences on a "Form 1"). 4. In relation to resentencing, I agree with the indicative sentences proposed by Dhanji J. I also agree that a finding of special circumstances is warranted. However, given the period of time over which the offences were committed and the weight that should be afforded to community protection, I consider that the appropriate aggregate sentence is 8 years imprisonment with a non-parole period of 5 years. 5. Accordingly, I propose the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed on the applicant by Colefax SC DCJ in the District Court on 9 November 2020 is quashed. 4. In lieu thereof, impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and fix: 1. Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) an aggregate sentence of 8 years commencing on 9 March 2020 and expiring on 8 March 2028; 2. a non-parole period of 5 years commencing on 9 March 2020 and expiring on 8 March 2025; and 3. a balance of term of 3 years commencing on 9 March 2025 and expiring on 8 March 2028. 1. WILSON J: I agree with Dhanji J, save for those matters referred to by Beech-Jones CJ at CL in his judgment. I agree with the matters there raised by his Honour, and the orders proposed by him, for the reasons he has given. 2. DHANJI J: The applicant, Mr Spiros Ladas, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the aggregate sentence of imprisonment imposed on him by Colefax SC DCJ sitting in the District Court at Campbelltown on 9 November 2020. 3. The applicant pleaded guilty to a series of offences that occurred over approximately two and a half years, which were reduced to nine substantive counts, with ten offences taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Form 1 offences") and one related offence contained on a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). The applicant was sentenced to an aggregate term of imprisonment of 10 years commencing on 9 March 2020 and expiring on 8 March 2030, with a non-parole period of 7 years and 6 months expiring on 8 September 2027. A table setting out the offences, the sentencing judge's finding of objective seriousness with respect to the offence and the indicative sentence (including the starting point), is annexed to this judgment. 4. The applicant seeks leave to appeal on the following grounds: 1. The sentencing judge erred in failing to take into account or properly take into account the applicant's disadvantaged upbringing when considering his moral culpability; 2. The sentencing judge erred in failing to find special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act; and 3. The sentence was manifestly excessive. Factual background Context to the offending 1. It is important to place in context the matters for which the applicant was sentenced. The sentencing judge outlined that context at R v Ladas [2020] NSWDC 832 at [9]-[15]: "9. [The applicant] and the [the complainant] were in an intimate relationship from April 2016 to February 2019. [The complainant] had two children from a previous relationship, one aged seven, one aged five. [The applicant] and [the complainant] had a child as a result of [their] relationship who, at the relevant time, was only one year old. 10. [The applicant] had a prolonged history of drug abuse which had a significant impact upon [his] relationship with [the complainant] and was also a major cause of financial stress. 11. [The complainant] would, from time to time, question [the applicant] about [his] fidelity and that was also an additional cause of conflict between the two of [them]. 12. The financial stressors, in combination with other facts, was often a catalyst for incidents of domestic violence by [the applicant] towards [the complainant]. [The applicant] perpetrated domestic violence offences against her regularly: assaulting her and intimidating and threatening her; and she regularly suffered bruising as a result of [his] repeated assaults. … 15. [The applicant] exhibited sudden mood changes, ranging from aggressive to emotional. This erratic behaviour reinforced [the complainant's] feeling that she had to help [him] through this time. When she threatened to end the relationship with [him] on account of [his] violence, [he] informed her of significant traumatic incidents [he] had been subjected to which made her feel that she could not leave [him]." The Charges 1. The following is taken from the sentencing remarks. The paragraph numbers refer to the paragraphs in his Honour's reasons. Seq 51: Use offensive weapon with intent to commit indictable offence Principal offence: Sequence 51 "16. In about July 2016, [the applicant], [the complainant] and the 3 children moved into residential premises at Gledswood Hills. 17. In July 2016, [the applicant] and [the complainant] apparently had a long-standing argument about her belief that [the applicant] had attended premises known as Nitro Circus (the precise nature of that venue being no further revealed other than by its name) approximately two months before July 2016 with one of [his] ex-partners. 18. Between 4:00pm and 5.00pm on 17 July 2016, [the complainant] and [the applicant] were returning home from Macarthur Square. [The applicant] told her that [he] had gone to Nitro Circus - but not with an ex-partner - and this caused disagreement between the two of [them]. 19. When [the applicant] arrived back at [his] home, [the complainant] informed [him] that she may end the relationship. The argument became quite heated. [The applicant] said to her, "Why would I take you to meet my family if you're just going to leave me?" She said to [him], "Because I've got to think about it, obviously I still want to be with you, but there is a level of distrust, I just don't know if I'm going to get past it or not." 20. This relatively innocuous remark caused [the applicant] to become enraged. [The complainant] was standing in [his] walk-in wardrobe which was located in the main bedroom of the premises. [The applicant] approached her and pressed [his] forehead against her forehead with sufficient force to push her backwards and to cause her pain. She immediately began to cry because of the pain and she said to [him], "What's wrong with you?" 21. [The applicant] then left that wardrobe and, it would seem, the room. [The applicant] returned a short time later - and [he was] armed. [He] had a baton in [his] hand. [He] flicked it out to extend it and then [he] verbally abused [the complainant], screaming threats and insults at her. Unsurprisingly, she was extremely scared and she pleaded with [him] to stop. [The applicant] threatened her with the baton - she cannot now recall the precise words - and then [he] suddenly walked out of the bedroom. But she was afraid that [he] had gone to get additional weapons. 22. [The applicant] did return a short time later without the baton, but [he] continued to yell at her in that bedroom. 23. It is this sequence of events that is the principal offence sequence 51 of using offensive weapon with intent to intimidate…" Form 1: Sequence 5, assault occasioning actual bodily harm "25. Having returned to the bedroom without the baton, [the applicant] then approached [the complainant] and grabbed her by the throat. [He] applied enough pressure to partially obstruct her airway for a period of time. She could not catch her breath. [He] threw her onto the bed, after which she crawled across the bed to get away from [him]. She begged [him] to stop; [he] calmed down for a moment; and [the applicant] and [the complainant] continued to talk about [their] relationship. However, when she mentioned ending it, the argument escalated again. Eventually, it stopped and [he] started to apologise to [the complainant] who was crying - and [the applicant was] crying. [He] assured her that it would never happen again. [He] left the premises a short time later to de-escalate the situation. 26. During the assault when [the applicant] grabbed her by the throat, [the complainant] had been wearing a silver necklace with a pendant. In the course of the assault, she sustained a small abrasion to the base of her neck and there were red marks. She also sustained bruising to her right and left arms and a small abrasion to her elbow as a result of [his] assault on her. According to the agreed facts, this was the first time [he] had been violent to [the complainant]. 27. It is this assault which is sequence 5 and is the relevant Form 1 matter to be taken into account with sequence 51..." Form 1: Sequence 6, assault occasioning actual bodily harm "28. About three weeks after this first assault, [the complainant] was driving [the applicant] to a friend's house at Oran Park. Whilst driving to that location, [the complainant] confronted [the applicant] about [him] messaging an ex-girlfriend and this led to a heated verbal argument. As a result of that argument, [the complainant] told [him] she intended to end [their] relationship, that she was going to pack her things. She immediately returned to the premises [the applicant] shared with her and did exactly what she said she was going to do. She started packing her things. 29. About half an hour later, [the applicant] returned home. [The complainant] was in the kitchen when [he] rushed towards her and grabbed her by her right arm and dragged her into the main bedroom. She sustained bruising to her right upper arm because of the force with which [he] grabbed her. Having dragged her into the bedroom, [he] let go of her arm and the heated argument recommenced. [The applicant] and she were standing face to face in close proximity to one another. 30. During this argument, [he] became enraged and [he] grabbed a fistful of [the complainant's] hair with one hand and forcefully pushed her head down and pulled her towards the front door of the premises by her hair. She stumbled towards the front door while being bent over at a 90 degree angle. She struggled against [the applicant], but could not get away. The agreed facts say that she then felt a "pop" to her scalp and a lot of pain from where [he] had had hold of her hair. 31. [The complainant] sustained a lump to the back of her scalp about the size of a 50 cent piece as a result of the incident. [The applicant] left the house and locked the front door behind [him] and her keys were locked inside as well. [He] left the location in a friend's vehicle which was parked nearby. 32. It is this assault which is sequence 6, which is also to be taken into account in relation to the principal offence, sequence 51…" Seq 10: Assault occasioning actual bodily harm Principal offence: Sequence 10 "33. On 27 November 2016, [the applicant] asked [the complainant] to order some food from a nearby Thai restaurant. She called ahead to place the order, but was placed on hold. Whilst the phone was on hold, she went into [his] shared bedroom. As at 27 November 2016, … [the complainant] was 12 weeks pregnant. Because of her pregnancy, she was suffering from bloating. She came out from the bedroom and [his] demeanour had changed. She left the premises to pick up the takeaway food. When she came home, [the applicant] confronted her and accused her of sending pictures of herself to other men via Snapchat and [the applicant] called her a slut. [His] mother was in the premises at that time - just as she is here today. 34. After [the complainant] returned home, she was sitting on the lounge and [the applicant] stood over her, this 12 week pregnant woman, and, using both of [his] hands, [he] grabbed her by her ears and part of her hair. Her head was pinned back against the head rest of the lounge and resulted in a piercing being pulled out of her ear. This caused [the complainant] excruciating pain. She denied sending any pictures to men and she was crying and pleading with [him] to stop. [The applicant's] mother told [him] to stop and she told both [the applicant] and [the complainant] to be quiet - so the neighbours would not hear. [The applicant] and [the complainant] continued to argue and [his] mother came and stood between the two of [them] and tried to calm [him] down. 35. As [his] mother was trying to calm [him] down, [he] swung a punch at the 12 week pregnant woman and [he] punched her in the mouth. She felt immediate pain and the force of the punch caused a small laceration to the bottom of her lip. 36. As soon as [the applicant] saw [the complainant's] injuries, [the applicant] started to cry and apologise to her. She rushed from the house to the garage and used a remote control attached to the interior wall to open the garage door. She got into her motor vehicle and locked all the doors. She immediately contacted her friend, [Ms C], and told her what [the applicant] had done to her. She was crying and she was scared, as [the applicant] and [his] mother went into that garage. 37. [The complainant] remained on the phone talking to her friend whilst [the applicant] entered the garage; and [his] mother stood at the internal door that led from the dwelling into the garage. [The complainant] saw [his] mother continually pressing the button on the internal remote in an effort to close the garage door and to prevent [the complainant] from leaving. [The complainant] shouted at [his] mother to stop trying to close the door, but [his] mother continued, saying, "Let me close it so the neighbours can't hear." [The complainant] used her remote control attached to her keys to prevent [his] mother from closing the garage door. 38. Whilst this was occurring, [he] rolled a lawnmower behind [the complainant's] vehicle to prevent her leaving the location, and she begged with [him] to remove it so she could leave. 39. It is these facts which constitute sequence 10, assault occasioning actual bodily harm…" Form 1: Sequence 12, intimidation intending to cause fear of physical or mental harm "41. After [the complainant] asked [the applicant] to move the lawnmower, [the applicant] walked to a nearby paint tub that was located next to [his] toolbox which was inside the garage. [The applicant] took a white canvas bag out of that paint tub, and [the complainant] believed that that bag contained a firearm - she had previously seen in it a small silver handheld firearm with a barrel that spun around. 42. Whilst [the applicant was] holding that bag, [he] said to [the complainant], "I'm gunna shoot up your family, I'm going to shoot up their house, and I'm going to shoot you." This caused [the complainant] extreme fear for her safety and the safety of her family. 43. [The complainant] left the location and went and stayed with another person. She started to receive text messages from [his] mother, blaming [the complainant] for the police being called. As a result, [the complainant] began to feel fearful of repercussions to her if [he was] charged with any offence. 44. [The complainant's] family were in the process of moving interstate, which made her feel as though she had to make the relationship with [the applicant] work, as she had no other family or adequate support nearby - she was unable to move interstate with her family because of a pre-existing custody agreement that she had with the father of 2 of the children. 45. It is the threat to shoot [the complainant's] family, their house and [the complainant] that is sequence 12, which is the matter of intimidation on a Form 1 which is to be taken into account in relation to the principal offence, sequence 10…" Form 1: Sequence 13, assault occasioning actual bodily harm "46. On 12 December 2016, [the applicant] and [the complainant] went out for dinner for [his] birthday. When [the applicant] and she returned home, there was a heated argument about the amount of presents which [the complainant] had bought for [the applicant]. She said that she would take some of the presents back and started packing them away in her bedside table, which was in the main bedroom. 47. [The applicant] and she continued to argue about the matter, and then [he] approached her and, using both hands, tried to shove her. However, only one hand connected with her right breast, which caused her immediate pain and bruising. As a result of that shove, [the complainant] fell to the floor and was short of breath. She stood back up, and then [the applicant] hit her nose with [his] hand. She was stunned, fell to the floor, and was crying hysterically. By this stage she was about 15 weeks pregnant. [The applicant] looked at her and [he] appeared upset. [He] asked her if she were all right, and [he] started crying. [The complainant] wiped her face and saw blood on her hand, coming from her nose. 48. This is sequence 13, which is another matter on the Form 1 to be taken into account with the principal offence, sequence 10…" Seq 17: Assault occasioning actual bodily harm Principal offence: Sequence 17 "49. Between 9.00am and 11:00am on 2 November 2017, about a year after the incident I have just been referring to, [the complainant] was pregnant again. And as at 2 November 2017 she was four months pregnant. On this day, [the applicant] and she had a heated argument about [his] drug use, [him] watching pornography, and the lack of money in the house because of [his] drug use. 50. During the course of the argument, [the applicant] locked the front door of those premises, which was the only way in and out of the home unit. [The applicant] threatened [the complainant] with these words, "I'm going to torture you all night long." [The complainant] was extremely scared and retreated to one of the children's bedroom in an attempt to get away from [the applicant]. She was lying on the bottom bunk (the children were not at home on that occasion; they were with their father). [The applicant] followed her in and continued to shout at her. [The applicant] shoved her into the corner. [The complainant] put her hands up to shield herself from [the applicant] and [the applicant] slapped at her hands and her arms leaving red marks. [The applicant] also grabbed her other left arm and caused bruises. 51. After that incident, she told [the applicant] she was not happy in the relationship. [The applicant] then became increasingly controlling, going so far as to take away her mobile phone so she could not contact anyone. 52. It is the incident on 2 November 2017 which is the principal offence of assault occasioning actual bodily harm, sequence 17…" Form 1: Sequence 22, assault occasioning actual bodily harm "54. By 28 December 2017, [the applicant], [the complainant] and the children had moved to premises at [Bardia]. 55. On 28 December 2017, [the applicant] came home from work and [the complainant] confronted [the applicant] about [his] use of a Snapchat account that was previously unknown to her. This time, [the complainant] was five a half months pregnant. Two of the other children were not at home, they were with their biological father. The argument between the two of [them] escalated and [he] assaulted [the complainant], although she cannot now remember exactly what happened. 56. As a result of whatever it was [the applicant] did to her, this five and a half month pregnant woman left the house and slept in a park. At about 10:00pm that night, [the applicant] sent her some text messages expressing [his] love for her. She sent [him] a text message which read: "But for the attacks, the way you just attacked me, I worry that will happen when my children are here, I can't have that. This is not only affecting me, but my children, I need to do what's best for them." 57. More text messages were exchanged between the two of [them] that evening. At almost midnight, [the applicant] sent text messages threatening suicide, to which she replied, "I have given you ample chances to be a decent human, yet I'm still this, I'm still that, I'm still a punching bag." There were more text messages to similar effect. 58. The events of 28 December 2017 are not the subject of any specific charge, but they are included in the agreed facts as context - that is to say, to put all of the other offences in their proper understanding – i.e. they were not isolated events. 59. On 31 December 2017 there was a New Year's Eve party at the house of one of [the applicant's] friends. His name was [Mr V]. 60. During the party, there was an argument between [Mr V] and someone over the phone which caused [the complainant] to look at [Mr V] - and that was the catalyst to the incident that followed the next night. 61. At 1:00am on 1 January 2018 [the applicant] and [the complainant] left the party and returned to where [the applicant was] living. The next day, [they] did not speak much to each other. But at about eight in the evening, [he] confronted [the complainant] about looking at [Mr V] at that party the night before. 62. An argument developed (again) and, during the argument, [the applicant] screamed at her and called her a slut. [They] were standing face to face in the bathroom. At the time, [the complainant's eldest son], was in the bath, and [he] shouted at her, in front of him, "You're a slut." At the same time, [the applicant] forcefully swung [his] arm and flicked her hard on her vagina which caused bruising and swelling. She felt immediate intense pain which she likened to being winded and she started to cry. 63. [The applicant] then used the language to her that I am not going to repeat in Court - but the effect [of] it was [he was] accusing her of sleeping with other men while [he was] at work, but [he] did not put it as benignly as that. [He] accused her of wanting to sleep with [Mr V] and became increasingly enraged to a point where [he] turned and repeatedly punched the bathroom door with a clenched fist which resulted in damage to the front and back of that door. 64. These actions caused [the complainant's eldest son] to be scared and he was crying and [the applicant] abused him and [he] called him a "little girl". [The complainant] became angry at the way [the applicant] spoke to her son and she demanded that [he] get out. 65. It is the assault on her vagina which I have described which is sequence 22 which [is] on a Form 1 and is to be taken into account with the principal offence sequence 17…" Seq 25: Intimidation "66. At some time between 10.30pm and 11:00pm, on 22 February 2018, [the complainant] and [the applicant] were at the [Bardia] premises. [The applicant was] asleep in the main bedroom having used a large amount of illicit drugs. 67. At this time [the applicant was] using three forms of steroids - and [the complainant] was seven months pregnant. 68. [The complainant] had discovered that [the applicant was] "talking" to women on Snapchat. She started sending [the applicant] text messages about this. She went to sleep in her daughter's bedroom - as the two eldest children were with their biological father again. She woke up to [the applicant] pulling her out of the bed by her ankle. [The applicant] dragged her down the hallway towards the main bedroom door. 69. [He was] shouting at her. [The applicant] demanded that she follow [him] downstairs while [he] had a cigarette. When she refused, [he] threatened to pull her down the stairs by her hair. [The complainant] did as she was told. She ran down the stairs as fast as she could. [The applicant was] behind her and she was afraid that [he was] going to push her down those stairs. 70. After the incident, [he] made an attempt to make her sleep next to [him], saying it would make [him] angrier if she slept away from [him]. [The complainant] feared the incident would escalate if she refused, so she did as [he] demanded. She sustained red marks to her jaw as a result of this incident. 71. This incident is sequence 25, which is stalk or intimidate with the intention of causing fear of physical or mental harm…" Seq: 27: Assault occasioning actual bodily harm Principal offence: Sequence 27 and Form 1: Sequence 28, damage property "73. At about 10:00pm on 6 March 2018, [the applicant] and [the complainant] were at [her] premises at [Bardia]. She was sitting in the corner on the L shaped lounge. [The applicant] became angry with her and, using both of [his] hands, [he] grabbed her by her hair and pulled her into an upright position. [The applicant] then threw her head back, causing her head to collide with the timber window frame. She was dizzy as a result of the impact and was immediately crying. [The complainant] was eight months pregnant when [the applicant] did that to her. 74. [The applicant] then stomped on a coffee table causing it to crack. She was cowering on the lounge with her face down in the lounge and covering her head with her hands and she felt several blows to the back of her head from a pillow that [the applicant] had retrieved from the lounge. 75. [The applicant] and she continued to argue. [The applicant] grabbed her by the arms, the neck and then (in what seems to be a favourite technique of [his]) [he] grabbed her again by the hair. [The applicant] pulled her with such force that it pulled a large chunk of her hair out - and then [he] dragged this eight-months pregnant woman down the stairs. She sustained numerous injuries to her head and neck and bruising to her body. 76. It is the assault on her which is sequence 27, assault occasioning actual bodily harm…. … 78. The destruction of the coffee table in the manner I have described is sequence 28 which is to be taken into account on a Form 1 in relation to sequence 27…" Form 1: Sequence 29, common assault "79. Some weeks later, on 20 April 2018, [the complainant] discovered messages between [the applicant] and another woman. In those messages [the applicant] told this other woman that [he] had broken up with [the complainant]. [The complainant] confronted [the applicant] about that assertion and there was yet another heated verbal argument. 80. At the time this argument had taken place, … three weeks beforehand [the complainant] had had a caesarean section and she was still recovering from the surgery. She was leaning against the bed head in the bedroom, breast feeding the infant. [The applicant] became angry with [the complainant] for confronting [him] about telling another woman that [he] and she had separated, and so [the applicant] slapped her to the head, causing her head to hit the wall. [The applicant] then slapped her in a downward motion to her face so that she collided with that child. There was then a struggle between [the applicant] and [the complainant] - but her movements were restricted, because she was attempting to shield that baby. [The applicant] then punched her to the back of the calf and pushed [his] phone into her face, leaving scratch marks along the jaw. 81. This is sequence 29 which is on a Form 1 to be taken into account with the principal offence sequence 27…" Seq 36: Assault occasioning actual bodily harm Principal offence: Sequence 36 "84. On 19 June 2018 (and into the early hours of the morning of 20 June), [the applicant] and [the complainant] were having yet another heated verbal argument. During the argument, she was standing in the main bedroom holding that newborn child. She feared that [the applicant was] going to assault her and pleaded with [the applicant] to allow her to put the child down. [The complainant] placed the baby on the bed and stood against the wall. [The applicant] then pushed her into the wall and held her against the wall by her throat. [The applicant] squeezed her throat with enough pressure to make her struggle for breath and feel dizzy. [The applicant] then threw her from the wall onto the bed, which resulted in [the complainant] partially landing on that baby. 85. She rolled off the child and [the applicant] threatened her. Having thrown her on that bed, [the applicant] said to her, "You hurt my son, I'm going to fucking kill you, I'm going to put you six foot under." [The applicant] demanded her car keys and, when she refused, [the applicant] kicked her in the ribs. (She suffered pain to her ribs for three months.) She gave [the applicant] her car keys to stop [him] from assaulting her. [The applicant] left the premises; and there were various red marks to her throat, body and bruising. [The applicant] returned a short time later where there were further assaults. 86. It is this incident in the bedroom which is sequence 36, the principal offence of assault occasioning actual bodily harm…" Form 1: Sequence 53, assault occasioning actual bodily harm "82. On 5 June 2018, [the applicant] and [the complainant] were at [his] home and there was another heated verbal argument. [The complainant's] eldest children were not present, but the baby was. She was holding the baby and the baby bag as she intended to leave the premises. [The applicant] grabbed her by both arms and forcefully pulled her back inside the premises. [The applicant] shoved her into the small landing in front of the stairwell and she came forcefully into contact with the wall, and then [he] hit her across the face. [The applicant] grabbed hold of her arm and pulled her down the hallway towards the lounge room. [The applicant] pulled her with such force that she stumbled, losing her footing. She sustained bruises to her upper arms. 83. This is sequence 53, which is on a Form 1 to be taken into account with the principal offence which is sequence 36 …" Seq 40: Intimidation Principal offence: Sequence 40 "88. By 10 August 2018, [the applicant], [the complainant] and the children had moved to yet different premises at Denham Court. 89. About 6:00am on 20 August 2018, [the complainant] pulled data from [his] mobile phone which revealed that [the applicant was] in constant contact with numerous different women. She sent [the applicant] a message about what she had discovered. Yet again, she decided to leave the relationship and began to pack her belongings. She did not attend to this with any urgency because she thought [the applicant was] at work. 90. But 45 minutes after she sent [the applicant] the text message, she heard [his] vehicle. She immediately grabbed the infant child and hid in a cupboard under the stairs as she believed [the applicant was] going to assault her. [The applicant] entered the premises and immediately went upstairs. As [the applicant] went upstairs, [the complainant] crept into the garage and pressed the garage remote to open the door. [The applicant] heard this and chased after her. She ran out into the street, dressed in her pyjamas and without shoes, and [the applicant] chased her. [The applicant] told her that if she did not hand the child over, [he] would knock her out in the street. She handed the child to [the applicant] and [the applicant] and the child returned to the premises. She reluctantly followed [him], but was too scared to enter the premises as she believed she would be assaulted. [The applicant] and [the complainant] were communicating by text messages whilst she was outside the premises. She sat in [his] motor vehicle and locked all the doors. [The applicant] emerged from the premises a short time later; [he was] polite to her and [he] asked her to buy [him] some cigarettes, which she did. 91. This stand-off continued for some hours with [the complainant] remaining inside [his] motor vehicle for most of the day, but she would not leave the location without her son. 92. As the afternoon wore on, about 4.50pm, [the applicant] came out from the house and walked towards the motor vehicle. [The applicant was] holding a hammer. She started to record [his] actions on her mobile phone and then [the applicant] said, "I'm going to break every bone in your body." 93. [The applicant] saw her recording [him] and immediately [he] walked around and put the hammer down in the back of the utility. Then [the applicant] came back and punched at the passenger side window. [the complainant] continued to record [his] behaviour. [The applicant] then emerged from the premises sometime later with the child and placed him in [the complainant's] car. She tried to block the driveway to prevent [the applicant] from leaving in her car with that child. [The applicant] got out of her car, walked towards [his] vehicle and punched the driver's side window. 94. Eventually, [the applicant] and she reached an agreement that [the applicant] would leave the location and stay elsewhere for the night. [The complainant] got into her own vehicle with the child and parked around the corner, so that she could be certain that [the applicant] had left the premises. 95. At about 11 o'clock, [the applicant] sent her a text message indicating that [he was] going to return to the premises which caused [the complainant] to feel petrified. She packed some essential items for herself and her son, placed him in her vehicle, and left the location. She called [the applicant] to find out how far away [he was], and, as she pulled into Denham Court Road, she observed [his] vehicle travelling in the opposite direction. 96. It is these facts which constitute sequence 40, which is the principal offence of stalk or intimidate with intention of causing physical or mental harm…" Form 1: Sequence 43, menacing driving with intent "98. I mentioned that [the complainant] had seen [the applicant] travelling [in] the opposite direction to her. But then [the applicant] crossed over the median strip, forcing her in her vehicle to slam on her brakes. She immediately put her vehicle into reverse. However, [his] vehicle collided with the front of hers. This caused the front light of the driver's side of her vehicle to be pushed in and the whole driver side, the front bar and the headlight casings were cracked. 99. She was still on the phone to [the applicant] when this occurred and she was pleading with [the applicant] to let her go. She said, "Please don't do this, I've got your son in my car." 100. [The applicant] got out of [his] vehicle and approached hers. She tried to contact her friend, [Ms M], and inform her of the incident. [The applicant was] shouting at [the complainant], demanding to know who she was on the phone to. 101. [The applicant] then got back into [his] vehicle and started reversing. [The complainant] used that opportunity to drive away. She was driving along Camden Valley Way, towards Narellan, when a police vehicle pulled out and followed her to Narellan Police Station, where she was stopped by the police for not having her headlights on. [The complainant] was crying hysterically at the time. The police asked her what was wrong, but she was too scared to tell them. She spent the night with her friend, [Ms M]. 102. It is the manner of [the applicant's] driving which I have just described, which is sequence 43…, which is on the Form 1 to be taken into account with the principal offence sequence 40…" Seq 45: Intimidation "103. About a week after that incident, [the applicant] apologised to her and [the applicant] and she were reconciled. 104. During the afternoon of 20 October 2018, [the applicant's] friend [Mr V] (whom I have already referred to in connection with a New Years Eve party) came to where [the applicant was] living to see [him]. [The complainant] was dressed in shorts and she sat next to him, and the child was sitting on her thighs. 105. When [Mr V] left, [the applicant was] furious with [the complainant], claiming that she was trying to expose herself to [Mr V]. This caused a verbal and heated argument that continued for some hours. Fearing that she was going to be assaulted, she left the location and did not return until 4:00am on 21 October 2018. 106. When she did return, she placed her mobile phone on record with the intention of taking footage to [the applicant's] mother as proof of [his] behaviour. She got into the bed and [the applicant] rolled over to face her. [The applicant] said to her: "Do you think you're God? I hit you because you don't listen. You aren't allowed to leave in an argument. Maybe I should just beat the shit out of you and break all your bones like a nan, just so you get the point. If you ever leave in an argument again, I will slit you from ear to ear. I will fully decapitate you and take your head to your parents' house." 107. This argument, which went on for a little over an hour, was recorded and during it [the applicant] could be heard making numerous threats to [the complainant], such as: "Where I find you in two, three years, I'm gunna slit your throat. I'm gunna fully decapitate you and send it to your parents. You take off in a fucking argument again and I'm gunna slit you from ear to ear. Are we clear? We're going to go with this relationship. You're not gunna get touched. We're gunna have arguments." 108. From time to time, she said, "So I should put up with threats?" and [the applicant] said, "I don't know which other road to take for you not to leave." 109. That sort of discussion continued until such time as [the applicant] fell asleep. 110. The threats which [the applicant] made to [the complainant] on this occasion caused her to feel petrified. However, she tried to remain calm as she was afraid that [the applicant] would carry through [his] threats. 111. It is these matters which is sequence 45 - stalk or intimidate with intention to cause physical or mental harm…" Seq 52: Use offensive weapon with intent to commit indictable offence Principal offence: Sequence 52 "113. On 29 October 2018, [the complainant] and [the applicant] again engaged in a heated verbal argument after she confronted [the applicant] about [his] drug use and her discovery of a vibrator in the downstairs cupboard. 114. The argument escalated to a point where [the applicant] armed [himself] with a kitchen knife, which was a stainless steel serrated edge knife. [The applicant] told her that she could leave, but that she had to leave [his] son with [him]. She was cornered and [he] slapped her across the face and told her to shut up because the neighbours could hear everything. [The applicant] then took her car keys to prevent her from leaving. And then, later, during the course of the argument, [the applicant] placed the keys in the front door and told her she could leave. 115. She started to make her way towards the door and, as she reached about halfway there, [the applicant] ran at her and chased her down the hallway whilst [the applicant was] still holding that knife. [The applicant] ran past [the complainant] and took the keys out of the door. She was cornered on the stairs and [the applicant] said, "I will stab you in your thigh if you don't walk down the hallway in front of me." She told [the applicant] that she was scared and [the applicant] told her that she was a variety of very unpleasant words which I am not going to repeat. But [the applicant] told her, after using those grossly offensive words, that she did not deserve to live and she did not deserve to be a mother. She was petrified and she begged [the applicant] to let her use the toilet. 116. [The complainant] had her mobile phone concealed in her bra and she used it when she was in the toilet to contact her friend. Having used the bathroom, she picked up [the applicant's] son and [he] allowed her to leave. [The applicant] continued to shout at her as she pressed the button on the remote to open the garage door of the premises and then [the applicant] snatched her keys from her. She told [the applicant] she needed to retrieve a nappy for the child and used this opportunity to flee into the street via the garage. [The applicant] followed her and, fortunately, several police vehicles arrived at the scene. 117. Although the agreed facts do not expressly say it, the only rational inference in the circumstances is the friend to whom she spoke in the toilet very sensibly contacted the police. 118. The victim stayed down the street from her premises and [the applicant's] mother attended a short time later. [The complainant] pleaded with [the applicant] to let her leave with her son and eventually, [the applicant] agreed to that and she went and stayed with her friend. 119. [The applicant] and she kept in contact after this time, as [the complainant] was attempting to get [the applicant] to move out of the premises. Eventually, [the applicant] agreed to that and [the applicant] went and stayed with [his] mother. However, [he] kept apologising to [the complainant] and, yet again, totally misguidedly, that young lady reconciled with [the applicant]. 120. It is the use of that knife in the manner I have described, which is sequence 52, which is the principal offence of using an offensive weapon with intent to intimidate…" Form 1: Sequence 49, common assault "122. On 25 February 2019, [the complainant] and [the applicant] were at home when yet another heated verbal argument erupted. [The complainant] contacted [the applicant's] mother to make arrangements to go and see her. [The applicant] became angry and demanded to know why [the complainant] was speaking to [his] mother. [The applicant's] mother spoke to [the applicant] and told [the applicant] that [the complainant] knew that [the applicant] had [his] ex-girlfriend's number stored on [his] phone. [The applicant] became angry that [the complainant] had been through [his] phone, so [he] slapped her across the face and screamed at her. [The applicant] kept her trapped in the kitchen for about 40 minutes and continued to shout abuse at her. She was crying in fear. [The applicant] slapped her again in a downwards motion, which collided with her head and her hands. She begged [the applicant] to let her have a cigarette and that is what [he] agreed to do and she went outside and had one. 123. [The applicant's] mother attended sometime later. [The applicant was] still angry. [The complainant] informed [his] mother what [he] had done and [he was] asked to leave. [His] mother stood between [the applicant] and [the complainant] and again, [the applicant] struck out at [the complainant], causing injury to her eye. 124. These facts, which are sequence 49, which is on a Form 1, will be taken into account with the principal offence, sequence 52…" Related offence 1. The applicant was also sentenced for sequence 50, an offence of contravening an apprehended violence order before the Court on a certificate pursuant to s 166 of the Criminal Procedure Act: "128. On 27 May 2019, [the applicant] attended Campbelltown Police Station at the request of police, where [he was] subsequently placed under arrest. [The applicant was] cautioned. The police seized [his] mobile phone. Whilst they were examining the phone, the police observed a text message sent by [the applicant] to [Ms M], a friend of [the complainant]. The purpose of that message was to ask [Ms M] to pass on a message to [the complainant]. That constituted a breach of the apprehended violence order. That is the breach matter…" Breach of Local Court bond 1. The sentencing judge also dealt with the applicant's breach of a s 9 bond which was imposed on the applicant in the Local Court on 31 January 2017 for an offence of possessing or using a prohibited weapon without a permit, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW). No action was taken on the breach and the matter does not, consequently, form part of this application for leave to appeal. Proceedings on sentence 1. Proceedings on sentence were conducted on 3 November 2020. The Crown bundle contained the notice of committal, charge certificate, s 166 certificate, statement of agreed facts, Forms 1A-1G containing the Form 1 offences, the applicant's criminal history, custodial history, the sentencing assessment report of Christine Chenoweth dated 5 August 2020, the Crown bundle on the call up of the breach of the Local Court bond and a certificate pursuant to s 35A of the Crimes (Sentencing Procedure) Act. The defence bundle contained three character references, a medical certificate issued by St George Hospital dated 27 May 2020 and a Campbelltown Hospital discharge referral dated 13 August 2020 evidencing that his mother is terminally ill with pancreatic cancer, a community care plan dated 13 May 2019 for Angelo Ladas, his disabled brother, and a report of Angela Parasher, registered clinical accredited mental health practitioner dated 29 September 2020. The applicant and Ms Parasher also gave oral evidence. Evidence of the applicant 1. The applicant gave evidence of his drug use from the age of 15, his heavy alcohol use and specifically, the use of cocaine and anti-depressants at the time of the offences. The applicant gave evidence that his drug use ceased before entering custody for these offences and that he had not consumed alcohol for approximately 15 or 16 months. 2. In his oral evidence, the applicant also confirmed that the matters contained in the sentencing assessment report accurately reflected what he had told the author of the report. That report stated that trauma led to "unresolved mental health issues at the time of the offences" and noted the use of "numerous substances at the time of the offences and for many years, as a means of escaping reality and coping with trauma he suffered years ago." The report also outlined that the applicant had engaged in "regular counselling sessions" to "address his trauma after being arrested for [domestic violence] related offences in March 2019 and realising the impact his mental health has had on his increasing aggression and offending behaviour". 3. Although counsel then acting for the applicant sought to ask the applicant about the type of trauma he experienced when he was 17, the applicant was hesitant to elaborate and it appears from the sentencing judge's interjection at this point that his Honour was prepared to rely on the account outlined in the report of Ms Parasher with respect to this topic. The applicant indicated that he was benefiting from counselling with Ms Parasher with respect to his alcohol and drug dependencies, and dealing with prior trauma, and he indicated a willingness to continue counselling. 4. During cross-examination, the sentencing judge asked the applicant whether it was the combination of drugs he was taking at the time that caused him to commit the offences, to which he stated that "[i]t was the anger I had inside" which was the "root of it". However, he also said that he did not seek to use this anger to justify his actions and expressed his regret for his conduct. Evidence of Ms Parasher 1. The report of Ms Parasher set out details of the applicant's dysfunctional childhood, provided to her by the applicant. The report stated that he experienced "domestic violence while growing up and had been kicked out of the family home at an early age". This led to homelessness. The report said he was eventually "picked up by a group of people with major addiction concerns", from which point he was exposed to a number of drugs, was sexually abused, tied up and exploited. Ms Parasher reported that, after freeing himself, the applicant continued to depend on drugs and alcohol to "numb his nightmares [and] flashbacks", and that he has been angry, volatile, rebellious and aggressive due to the abuse he endured. Ms Parasher found that the applicant "presented [as] extremely remorseful" for his actions. 2. While Ms Parasher was cross-examined as to the contents of her report, the cross-examination did not elicit anything of note. Remarks on sentence 1. As noted above, the sentencing judge's findings of objective seriousness in respect of each of the offences are contained in the table annexed to this judgment. 2. With respect to the applicant's subjective circumstances, his Honour was satisfied on the balance of probabilities that his childhood and adolescence, as captured in the report of Ms Parasher, was dysfunctional, with the result that his moral culpability was reduced. His Honour also noted that this dysfunctional upbringing led to his long-term issues with drugs, although his Honour found that it was the untreated anger within the applicant as a consequence of his dysfunctional background, as opposed to drugs, which was the likely cause of the offending, possibly aggravated by the applicant's use of steroids at the relevant time. His Honour also noted that, although he found that the applicant had a dysfunctional upbringing with associated untreated anger management issues, he had not been diagnosed by any expert medical practitioner with any condition. 3. The sentencing judge additionally found that the applicant was not entitled to leniency as a result of his criminal history (although this was not an additional aggravating factor), that he had developed some, albeit limited, insight into his offending behaviour, and that his expressions of remorse were genuine. His Honour found that his prospects of rehabilitation were presently guarded due to the "limited nature of the counselling to date" and the nature and severity of his dysfunctional upbringing. 4. After noting his entitlement to 25% discounts to his indicative sentences on account of his early pleas, and declining to make a finding of special circumstances, his Honour set out the indicative sentences and imposed the aggregate sentence referred to above. The grounds of appeal Ground 1 – consideration of the applicant's disadvantaged upbringing 1. As noted above, the applicant gave evidence and relied upon a report from Ms Parasher to establish matters with respect to his background, and in particular, the presence of dysfunction and trauma in that background in an attempt to establish that his moral culpability was consequently reduced. The submission was based on the High Court's decision in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 where the plurality said (at [44]): "Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender." (footnotes omitted) 1. Having found that this Court erred in the application of principle concerning the relevance of the appellant's deprived background to the sentencing exercise, their Honours noted (at [46]): "… An issue for determination on the remitter is whether the appellant's background of profound childhood deprivation allowed the weight that would ordinarily be given to personal and general deterrence to be moderated in favour of other purposes of punishment, including rehabilitation, to the extent that Judge Lerve allowed." 1. While there was a contest before the sentencing judge as to whether the evidence of trauma and dysfunction should be accepted, that contest was resolved favourably to the applicant and has not been the subject of challenge on this appeal. The sentencing judge said in this regard (at [130]-[136]): "130 [The applicant's] subjective circumstances were advanced to the Court through a sentencing assessment report, an expert's report, and [the applicant's] own oral evidence. 131 [The applicant is] now 37 years old. 132 It was submitted on [his] behalf that [he] had a dysfunctional upbringing. In this regard, that submission was principally based upon the history [he] gave the expert, Ms Parasher, a consultant mental health practitioner - but someone who was not a psychiatrist nor a psychologist. 133 The details of [his] allegedly dysfunctional childhood and adolescence were unusually vague, and it has been difficult for the Court to form a clear assessment about that part of [his] life. The Crown has in fact submitted that [his] assertions are not proved on the balance of probabilities. 134 However, after some reflection and with some hesitation, I am satisfied on the balance of probabilities that [his] childhood and adolescence were dysfunctional, notwithstanding the lack of specificity in the expert's report, with the result that [his] moral culpability is reduced in the manner that the High Court of Australia has directed sentencing judges to take into account. 135 As a result of that dysfunctional upbringing and adolescence, [the applicant has] had long term issues with drugs, i.e. illegal drugs, legal drugs obtained without prescription, and alcohol. 136 However, I am not satisfied that those drugs, per se, are causally related to the offending with which I am concerned. Rather, I am satisfied that the untreated anger within [the applicant] as a consequence of [his] dysfunctional upbringing, on the balance of probabilities, is the likely cause of that criminality, possibly aggravated by [his] use of steroids at the relevant time." (emphasis added) 1. As set out above, the sentencing judge found that the applicant's moral culpability was reduced. In these circumstances, a ground which asserts a failure to properly take into account the applicant's disadvantaged upbringing when considering moral culpability appears, at first blush, ambitious. Despite the manner in which the ground was framed, it is apparent from the submissions that the real complaint was one of error in "failing to account for the applicant's background and its [e]ffect on [the] assessment of moral culpability such that the sentence imposed was not reduced to reflect that fact". This has the appearance of a complaint of a failure to give weight to a particular factor. Such complaints are, generally, difficult to establish. As McHugh J said in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51], in a passage adopted by the Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26], sentencing by way of instinctive synthesis requires that: "… the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case." 1. In a particular case where a discount (here, for the pleas of guilty) was appropriate, that discount is applied to the result of the instinctive synthesis. Further, when sentencing for multiple offences, a judgment will be made with respect to each individual offence and the total. In the present case it might be thought the judge identified the applicant's background as a relevant factor, discussed its significance (that is, it impacted on the applicant's moral culpability) and then made a value judgment as to the appropriate sentence with respect to each offence, applied an appropriate discount to arrive at the indicative sentence for the offence, and then made a further judgment as to the appropriate total. 2. However, as can be seen from the table annexed to this judgment, the indicative sentences with respect to sequences 27 and 36 were arrived at from a starting point of five years, which was the maximum available penalty. There was no suggestion that these offences were so grave as to warrant the imposition of the maximum penalty, prior to the application of the discount for the plea: see The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [17]-[20]. The findings of objective seriousness did not put these offences at the top of the range for such offending. Nor were the applicant's subjective circumstances unworthy of consideration. 3. The appeal is, of course, sought to be brought against the aggregate sentence and not the indicative sentences. However, the requirement to specify indicative sentences is "clearly directed to ensuring transparency in the process of imposing an aggregate sentence and in that connection, imposing a discipline on sentencing judges": Khawaja v R [2014] NSWCCA 80 at [18]; see also JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [39]. It is consequently permissible to have regard to the indicative in the context of a complaint about the total: Kliendienst v R [2020] NSWCCA 98 at [76]-[103]. 4. It is true that there were Form 1 matters attached to each of sequence 27 and 36. In relation to sequence 27, sequences 28 and 29 were taken into account. His Honour regarded the former as requiring a "slight increase" in the penalty for the principal offence and the latter as requiring a "significant" increase in the penalty. Sequence 36 took into account sequence 53 which his Honour said warranted a "meaningful" increase in the penalty for the principal offence. Putting to one side whether multiple Form 1 offences (as was the case in sequence 27) can have differential impacts when considering the weight to be given to personal deterrence and retribution for the principal offence, the fundamental principle is that, while regard is had to the Form 1 matters, the sentence is the punishment for, and merited by, the principal offence. To start at the maximum for an offence that is not at the top of the range of objective seriousness offends the principle of proportionality. In addition, it is difficult to see, given these starting points, how the finding of reduced moral culpability was taken into account, at least with respect to these counts. 5. The respondent relied on a subsequent paragraph in his Honour's reasons where he said (at [143]): "Domestic violence offences are matters of particular concern to Courts. Accordingly, both specific and general deterrence are fully engaged - that is, the sentences to be imposed upon [the applicant] must be such as to not only deter [him] from re-offending, but must be sufficiently stern to deter others from similar offending. The need to encourage [the applicant's] rehabilitation is also fully engaged." 1. In Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 which was handed down on the same day as Bugmy, the High Court was concerned, as was the case in Bugmy, with an Aboriginal offender who had, as a child, been exposed to the "negative influences of alcohol and family violence" (at [17]). The offence in that case was the manslaughter of the appellant's de facto spouse. The majority found in the circumstances of that case (at [57]) that: "The circumstance that the appellant has been affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that consideration must be balanced with the seriousness of the appellant's offending. It is also important to say that it should not be thought that indulging in drunken bouts of domestic violence is not an example of moral culpability to a very serious degree." 1. The Western Australian Court of Appeal had found the sentence imposed at first instance to be manifestly inadequate: see The State of Western Australia v Munda (2012) 43 WAR 137; [2012] WASCA 164. In reaching this conclusion, McLure P (with whom Mazza JA agreed) found at [67] of the Court of Appeal judgment that the appellant was not "raised in circumstances of such deprivation and difficulty as to render his addictions mitigatory". Her Honour held (at [68]) that the sentence at first instance failed to "give due recognition to the seriousness of the offence, the seriousness of the circumstances in which it was committed and the need for both personal and general deterrence". The other member of the Court, Buss JA, found (at [134]) that, to the extent that the appellant's personal circumstances were relevant, they were "decisively outweighed by other sentencing factors (namely, the protection of vulnerable women, personal deterrence and general deterrence) in the context of the very serious nature of the offending" and the appellant's criminal history. The majority of the High Court found no error in the Court of Appeal's exercise of its sentencing discretion which warranted its interference with the sentence and accordingly affirmed the Court of Appeal's decision. 2. It can be seen from the above that there will be cases in which the mitigatory impact of a dysfunctional background on a sentencing purpose will be counterbalanced by an increased need for weight to be given to other purposes of sentence, most commonly the protection of the community and personal deterrence. Indeed, the same observation was made in Bugmy at [44]-[45], with reference to the well-known observations of Gleeson CJ in R v Engert (1995) 84 A Crim R 67. And, while their Honours observed (at [44]), that the effects of profound deprivation do not diminish with the passage of time and that such a background should be given "full weight" in every sentencing decision, their Honours continued: "However, this is not to suggest … that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult…" 1. The difficulty in the present case is that the sentencing judge, having found that the applicant's moral culpability was reduced and would be taken into account "in the manner that the High Court of Australia has directed", did not qualify or otherwise explain the relevance of this factor. There is admittedly, some force in the Crown's argument that his Honour's observation that "both specific and general deterrence are fully engaged" could be read as a finding that the significance of the applicant's reduced moral culpability was effectively counterbalanced, not unlike the reasoning of the Western Australian Court of Appeal in Munda. However, this was not articulated. Further, immediately following the reference to specific and general deterrence being fully engaged, his Honour said "[t]he need to encourage your rehabilitation is also fully engaged" (at [143]). It is not possible to reconcile the statement that the applicant's reduced moral culpability would be taken into account, and the "full" engagement of rehabilitation, with a starting point at the maximum for two offences, despite his Honour's references to the "full" engagement of general deterrence and specific deterrence. 2. The present case can be distinguished, in the above regard, from a case such as BT v R [2019] NSWCCA 147 (see at [26]-[30]). It might also be distinguished on the basis that, in BT, there was no evidence of remorse, the offender had a low level of insight into his offending, a substance abuse problem, a sexual interest in underage girls (in the context of a sexual offence committed against a child) and had not engaged in any rehabilitation program, such that his prospects of rehabilitation were described as "regrettably not good". That was a case where this Court found it was open to the sentencing judge to give weight to general and personal deterrence. Here, however, even if the judge was entitled to give weight to general and personal deterrence, a starting point that was the maximum penalty in relation to two of the indicative sentences, prior to the application of the discount for the guilty plea, indicates that, contrary to the sentencing judge's expressed intention, the applicant's background was given no weight at all. 3. The reasoning above applies directly to sequences 27 and 36, but also, inferentially to the other offences. There is no reason to think the applicant's reduced moral culpability was applied differentially across the offences. In any event, an error in failing to have regard to a relevant consideration in relation to a single offence is sufficient to vitiate the sentence imposed. 4. Having regard to the reasoning above, it may be that the ground could have been argued on the basis that any of the apparently mitigatory matters established was not taken into account. Be that as it may, I am satisfied that the applicant has established error on the basis of a failure to account for the applicant's reduced moral culpability in the commission of the offences. Ground 1 is made out. Ground 2 – special circumstances 1. Having regard to the view I have reached in relation to ground 1, it is necessary to re-exercise the sentencing discretion, and this ground can consequently be dealt with relatively briefly. This ground complains that the sentencing judge erred in failing to find special circumstances for the purposes of s 44(2B) of the Crimes (Sentencing Procedure) Act. Such a finding would have enabled a reduction to the non-parole period to a level below 75% of the total sentence. It cannot be reasonably disputed that a finding of special circumstances could have been justified on the facts of the case (as is true in most cases). This enlivened a discretion, rather than mandated a finding of special circumstances. In R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534, Spigelman CJ said (at [73]): "One practical effect of the statutory proportion has been to create a field of disputation which enables matters of fact and judgment to be expressed as if they constituted propositions of law. This arises only because the fetter is expressed in words which suggest a legal standard. It will be a very rare case in which there is no fact capable as a matter of law, of constituting a "special circumstance". The decision is first one of fact — to identify the circumstances — and, secondly, one of judgment — to determine that those circumstances justify a lower proportionate relationship between the non-parole period and the head sentence. There are well known restraints on an appellate court from interfering with decisions of this character. As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive." 1. In the present case the sentencing judge was of the view that a period of 2 years and 6 months provided a sufficient parole period to meet the circumstances of the case. This finding was open. Ground 2 is not made out. Ground 3 – manifest excess 1. Having regard to the need to re-exercise the sentencing discretion, it is unnecessary to determine this ground. Resentence 1. The facts of each offence have been set out above. The applicant committed a large number of serious offences against his domestic partner over a period of some two and a half years. While the offences are of varying levels of seriousness, each of them must have had a terrible impact. Further, the applicant engaged in the manipulation of the victim in order to maintain the relationship, only to engage in further violent abuse. The cumulative impact of his offending on the victim can only have been significant. 2. The majority of the offences were committed in the victim's home. It is only sequence 12 (an offence of intimidation involving the sending of text messages), sequence 43 (the menacing driving with intent charge) and sequence 50 (the contravention of the apprehended violence order offence on the s 166 certificate) that were not. While the sentencing judge regarded the commission of offences in the victim's home as an aggravating factor, the seriousness of the offences is, to my mind, better informed by the domestic relationship between the applicant and the victim involving, as it did, trust and consequent vulnerability. It was a corollary of these factors that resulted in the victim being assaulted in her own home, but which also informed the insidious nature of the offences committed outside the home. 3. The findings of the sentencing judge as to objective seriousness made at first instance have not been challenged, though I note that none of the offences were standard non-parole period offences such that, while it was necessary to assess the objective gravity of the offence, it was not necessary to express any such finding in standard non-parole period terms. In relation to the assault occasioning actual bodily harm offences, the degree of injury varied but was not, in any case, at the upper end of actual bodily harm, noting that such injuries include all injuries up to the level of grievous bodily harm. The level of injury in each case is, perhaps only through good fortune, generally the primary factor in the applicant's favour in the assessment of objective gravity. This is qualified by noting that in the case of sequence 36, the pain that resulted lasted for some three months. It should also be noted that, in the case of sequence 36, some care also needs to be taken that, to the extent the complainant was choked such that she was rendered incapable of resisting, the applicant was not to be punished for an offence against s 37(1) of the Crimes Act 1900 (NSW): The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31, and see the recent decision of GS v R; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65 as to the meaning of "chokes" for the purposes of that offence. 4. Sequence 17 and the principal offences committed thereafter, were all aggravated by the fact the applicant was on conditional liberty, that being a good behaviour bond with respect to an offence of possessing a prohibited weapon without a permit which was in place from 31 January 2017 to 30 January 2019. (The only offence in relation to which the applicant was not on conditional liberty was sequence 49 which was on a Form 1 attached to sequence 52.) 5. In relation to sequence 50 (the s 166 matter) there is no evidence as to the content of the message the applicant sought to indirectly send to the complainant, and certainly no suggestion it was in any way threatening. 6. The applicant is now 39 years of age. He was 33 years old at the time of the first offence and 36 at the time of the last offence. The applicant's criminal record at the time of the offending was not particularly lengthy. Significantly, while the applicant had served a sentence of imprisonment for the supply of drugs there was only one entry for an offence of violence, an offence of assault occasioning actual bodily harm committed in 2001 in relation to which he received a fine. Subsequent to the commission of the present offences the applicant was convicted of an offence of stalk or intimidate committed in March 2019, and was charged with contravening an apprehended violence order and a further offence of stalk or intimidate in April 2019. While I do not regard the subsequent offending as having a significant bearing on the exercise, I regard the applicant's record as such as to disentitle him to leniency. 7. I have regard to the applicant's reduced moral culpability as a consequence of his background. I would, as a result, ameliorate to some extent the role of general deterrence. I would also ameliorate the weight given to retribution, though I hasten to add that that reduction is attenuated in the case of the offences to which Form 1s attach, and in any event, such reduction should not, in my mind, be significant. Having regard to the serious nature of the offending, general deterrence and retribution must continue to have a role. Personal deterrence is also of significance, although the sentence required on the basis of the purposes of sentencing already discussed, and my view as to his prospects of rehabilitation discussed below, are such that I would not give this factor additional weight. 8. The sentencing judge found the applicant to be remorseful, a finding which has not been challenged. Clearly, the applicant was not sufficiently affected by remorse to desist from the course of assaults in which he engaged over the period of the offending. However, I accept that his arrest and prosecution has brought about a realisation of the wrongfulness of his conduct. This is supported by the applicant's evidence before the sentencing judge. Further, the pleas of guilty spared the victim from giving evidence. Those pleas were also entered in circumstances where the prosecution case was, in relation to the majority of the offences, reliant on a single witness and where some time had elapsed between the event and the police investigation. I am, having regard to these matters, satisfied the applicant is genuinely remorseful for his actions. 9. The applicant gave evidence that he had been drug free from a time before entering custody as a result of his arrest in May 2019, a period of some 16 months (although the applicant was in custody for approximately three and a half months before being granted bail). Similarly, he said he had not consumed alcohol for about 15 or 16 months. He said he was anxious to continue counselling with Ms Parasher. Having regard to this evidence, and to my finding above with respect to remorse, the applicant's record and his age, I regard the applicant as having reasonable prospects of rehabilitation. It is difficult to be more optimistic, having regard to the offences and the lengthy period over which they were committed. Much will also depend on the applicant continuing to manage his issues with addiction. 10. I have regard to the maximum penalty in relation to each offence. In relation to the Form 1 offences, those matters will be taken into account to increase the weight given to personal deterrence and retribution with respect to each corresponding principal offence. Community protection is also entitled to weight. The nature of the crimes is such that I regard it as important to recognise the harm done to the victim and the community more generally. In the case of each offence, having regard to the context in which it is being considered (that is, sentencing for multiple offences), there can be no question that there is no alternative to a sentence of imprisonment. As noted above, the sentencing task requires consideration of each offence prior to the application of the discount for the applicant's pleas of guilty. 11. I propose an aggregate sentence. I regard the following indicative sentences as appropriate. 1. In relation to sequence 51, using an offensive weapon with intent to commit an indictable offence (intimidation), taking into account the offences on the Form 1 (sequences 5 and 6, both offences of assault occasioning actual bodily harm), I regard an appropriate sentence to be one of 3 years. After application of a discount of 25% the indicative sentence is 2 years and 3 months. 2. In relation to sequence 10, assault occasioning actual bodily harm, taking into account the offences on the Form 1 (sequences 12 and 13, intimidation and assault occasioning actual bodily harm), I regard an appropriate sentence to be one of 2 years. After application of a discount of 25%, and with rounding, the indicative sentence is 18 months. 3. In relation to sequence 17, assault occasioning actual bodily harm, taking into account the offences on the Form 1 (sequence 22, assault occasioning actual bodily harm), I regard an appropriate sentence to be one of 2 years. After application of a discount of 25%, and with rounding, the indicative sentence is 18 months. 4. In relation to sequence 25, intimidation, I regard an appropriate sentence to be one of 2 years. After application of a discount of 25%, and with rounding, the indicative sentence is 18 months. 5. In relation to sequence 27, assault occasioning actual bodily harm, taking into account the offences on the Form 1 (sequences 28 and 29, damage property and a common assault), I regard an appropriate sentence to be one of 2 years and 6 months. After application of a discount of 25%, and with rounding, the indicative sentence is 1 year and 10 months. 6. In relation to sequence 36, assault occasioning actual bodily harm, taking into account the offence on the Form 1 (sequence 53, assault occasioning actual bodily harm), I regard an appropriate sentence to be one of 2 years and 6 months. After application of a discount of 25%, and with rounding, the indicative sentence is 1 year and 10 months. 7. In relation to sequence 40, intimidation, taking into account the offence on the Form 1 (sequence 43, menacing driving with intent), I regard an appropriate sentence to be one of 2 years and 6 months. After application of a discount of 25%, and with rounding, the indicative sentence is 1 year and 10 months. 8. In relation to sequence 45, intimidation, I regard an appropriate sentence to be one of 2 years and 6 months. After application of a discount of 25%, and with rounding, the indicative sentence is 1 year and 10 months. 9. In relation to sequence 52, using an offensive weapon with intent to commit an indictable offence (intimidation), taking into account the offence on the Form 1 (sequence 49, common assault), I regard an appropriate sentence to be one of 3 years. After application of a discount of 25% the indicative sentence is 2 years and 3 months. 10. In relation to sequence 50, contravention of the apprehended violence order on the s 166 certificate, I regard an appropriate sentence to be one of 6 months. After application of a discount of 25% and rounding down, the indicative sentence is 4 months. 1. Having regard to the related nature of the offending there will be a degree of notional concurrence between these indicative sentences. The sentencing judge backdated the sentence to allow for the applicant's pre-sentence custody and a period on strict bail that was treated by the judge as "quasi-custody". It is appropriate that the same date be adopted. I would impose a total sentence of 6 years. I would find special circumstances having regard to the applicant's need for treatment with respect to his issues arising from his background and related drug addiction. 2. I propose the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed on the applicant by Colefax SC DCJ in the District Court on 9 November 2020 is quashed. 4. In lieu thereof, impose an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and fix: 1. Pursuant to s 44(2A) of the Crimes (Sentencing Procedure) Act 1999 (NSW) an aggregate sentence of 6 years commencing on 9 March 2020 and expiring on 8 March 2026; 2. a non-parole period of 4 years commencing on 9 March 2020 and expiring on 8 March 2024; and 3. a balance of term of 2 years commencing on 9 March 2024 and expiring on 8 March 2026. ********** CCA Ladas Annexure - Table of offences (141086, pdf) 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: 22 July 2022