Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lee v R [2023] NSWCCA 70 Hearing dates: 22 February 2023 Date of orders: 27 March 2023 Decision date: 27 March 2023 Before: Price J at [1] Wilson J at [3] Dhanji J at [7] Decision: (1) Leave to appeal is granted. (2) Appeal dismissed. Catchwords: CRIME – appeals – appeal against sentence – intimidation offence – specially aggravated detain for advantage offence – whether findings of the objective seriousness of both principal offences were not open on the facts of this case – whether the aggregate sentence imposed was manifestly excessive – appeal dismissed Legislation Cited: Crimes Act 1900 (NSW), ss 86(1), 86(2), 86(3), 86(3)(b) Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 7, 13(1) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 53A Criminal Appeal Act 1912 (NSW), s 5(1)(c) Cases Cited: AB v R (2013) 33 A Crim R 205; [2013] NSWCCA 160 Ahmad v R [2021] NSWCCA 30 Amiri v R [2017] NSWCCA 157 Arnaout v R (2008) 191 A Crim R 149; [2008] NSWCCA 278 Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 Benn v R [2023] NSWCCA 24 BJS v R [2013] NSWCCA 123 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Burke v R [2022] NSWCCA 6 Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58 Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58 DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 Fuller v R [2022] NSWCCA 203 Greentree v R [2018] NSWCCA 227 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jackson v R [2022] NSWCCA 148 JG v R [2023] NSWCCA 33 JM v R (2014) 245 A Crim R 528; [2014] NSWCCA 297 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Kerr v R [2016] NSWCCA 218 Kresovic v R [2018] NSWCCA 37 Lami v R [2021] NSWCCA 295 Magro v R [2020] NSWCCA 25 McMahon v R [2011] NSWCCA 147 Mulato v R [2006] NSWCCA 282 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 PD v R [2012] NSWCCA 242 PD v R [2012] NSWCCA 242 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 R v Bonett [2009] NSWCCA 135 R v Brown [2012] NSWCCA 199 R v Cook [2023] NSWCCA 9 R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 R v Lee [2021] NSWDC 601 R v Newell [2004] NSWCCA 183 R v Nykolyn [2012] NSWCCA 219 R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130 R v Tristan Lee [2019] NSWDC 59 Sarhene v R [2022] NSWCCA 79 SHR v R [2014] NSWCCA 94 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 Category: Principal judgment Parties: Tristan James Lee (Applicant) Rex (Respondent) Representation: Counsel: P Coady with A Bhasin (Applicant) J Styles (Respondent) Solicitors: Tankard's Law (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2020/323156; 2021/44380 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: R v Lee [2021] NSWDC 601 Date of Decision: 8 November 2021 Before: Lerve DCJ File Number(s): 2020/323156; 2021/44380 HEADNOTE The applicant pleaded guilty to one count of intimidation and one count of specially aggravated detain. A further offence of wounding was placed on a Form 1 in respect of the specially aggravated detain offence. The applicant was sentenced to an aggregate term of 6 years and 3 months imprisonment, with a non-parole period of 4 years and 3 months. The applicant sought leave to appeal his sentence on two grounds: the sentencing judge's findings of the objective seriousness of the principal offences were not open on the facts of the case; and the aggregate sentence imposed was manifestly excessive. The Court held (per Dhanji J, Price and Wilson JJ agreeing), granting leave to appeal but dismissing the appeal: As to the first issue: (1) The finding of objective seriousness is quintessentially a matter for the sentencing judge and is reviewable only on a limited basis. A challenge to a sentencing judge's finding of objective seriousness required the applicant to establish House v King error. In the absence of formal challenge and full argument it was not necessary to depart from this consistent line of authority: [30]-[31] Mulato v R [2006] NSWCCA 282 at [37], [45]-[46]; Greentree v R [2018] NSWCCA 227 at [34]; Magro v R [2020] NSWCCA 25 at [31]; Ahmad v R [2021] NSWCCA 30 at [18], applied. (2) In the present case, the sentencing judge engaged in the necessary process of addressing the objective gravity of the offence. Having regard to the range of conduct that might constitute an intimidation offence, the finding that the offence was "at the lower end of the mid-range" was one which was open: [38] (3) Having regard to the nature of the offending, the sentencing judge's assessment of the objective seriousness in respect of the specially aggravated detain offence, while perhaps not inevitable, was open: [46] (4) There is questionable utility in comparing a finding of objective seriousness in a case under appeal with a single decision: [47] R v Bonett [2009] NSWCCA 135 at [35]; Lami v R [2021] NSWCCA 295 at [40], applied. As to the second issue: (1) The aggregate sentence imposed on the applicant was not unreasonable or plainly unjust: [56]-[61] Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443], applied. (2) Relevance of indicative sentences in a claim an aggregate sentence is manifestly excessive considered. JUDGMENT 1. PRICE J: I agree with the orders proposed by Dhanji J. Whilst I am grateful for his Honour's review of the authorities concerning the review of aggregate sentences on appeal, it is unnecessary to express any opinion on this issue. As his Honour notes, there was no argument or ground of appeal that raised it. 2. I also agree with the additional remarks of Wilson J. 3. WILSON J: I am grateful to Dhanji J for his outline of the facts and circumstances of this matter, and of the arguments of the parties. I agree with the orders his Honour has proposed. 4. As to ground 1 the applicant placed significant reliance upon the short judgment of Brereton JA in Fuller v R [2022] NSWCCA 203 in which his Honour, at [3], postulated an alternative basis upon which error in the assessment of objective gravity might be considered. That approach may have been urged upon the Court because any assessment of this proposed ground that applied more orthodox and well settled law would make the applicant's argument difficult to sustain. The approach to be taken in assessing a complaint of error of this type is that outlined at 505 in House v The King (1936) 55 CLR 499; [1936] HCA 40, and applied innumerable times in this Court since, such as in Mulato v R [2006] NSWCCA 282 at [37] and Magro v R [2020] NSWCCA 25 at [29] – [31]. Applying the law as it is set out in those decisions, the ground must be dismissed. The sentencing judge considered all of the features of the offending relevant to a determination of the gravity of the crimes, in their proper context, and reached a conclusion that was, in my opinion, entirely open to him. The fact that the applicant did not take advantage of the opportunity offered to him by the sentencing judge to argue against the preliminary view expressed by his Honour points to the correctness of that conclusion. No error has been demonstrated. 5. As to ground 2, in determining the aggregate sentence to be imposed upon the applicant the sentencing judge took into account the facts and circumstances of the offences and gave due weight to the subjective case and those matters of mitigation established on balance by evidence. It is the aggregate sentence that is amenable to challenge, in the way discussed in JM v R [2014] NSWCCA 297 at [40] per R A Hulme J, and that sentence is neither unfair nor unjust. 6. The appeal should be dismissed. 7. DHANJI J: The applicant, Mr Tristan Lee, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Lerve DCJ in the District Court at Wagga Wagga on 8 November 2021. 8. The applicant pleaded guilty in the Local Court to the following two offences: 1. Seq 1: Intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (maximum penalty of 5 years imprisonment); and 2. Seq 2: Specially aggravated detain for advantage (cause actual bodily harm) contrary to s 86(3) of the Crimes Act 1900 (NSW) (maximum penalty of 25 years imprisonment). 1. In relation to the specially aggravated detain for advantage offence, an offence of recklessly wound in company contrary to s 35(3) of the Crimes Act was taken into account on a Form 1. The maximum penalty for the offence is 10 years imprisonment. 2. The applicant was sentenced to an aggregate term of 6 years and 3 months imprisonment commencing on 12 June 2021 and expiring on 11 September 2027 with a non-parole period of 4 years and 3 months expiring on 11 September 2025. 3. The applicant seeks leave to appeal on the following grounds: "1. The Sentencing Judge's findings of the objective seriousness of both principal offences were not open on the facts of this case. 2. The aggregate sentence imposed on the Applicant by the Sentencing Judge was manifestly excessive taking account of both the objective seriousness of both principal offences, the Applicant's subjective case and the application of Bugmy principles." Factual background 1. The facts of the intimidation matter were summarised by Lerve DCJ in R v Lee [2021] NSWDC 601 (the sentencing judgment) at [6]-[9]: "6 The victim in the Intimidation matter is Brendan Withers who was 29 years of age at the time of the offence. At about 12.20 am on 31 July 2020 the victim attended the home of Jalissa Williams at an address in Hunter Street, Mount Austin, a suburb of Wagga Wagga. The victim was subject (i.e. the victim) of a robbery that involved Williams, Jackson Douglas and an unidentified male. Douglas robbed the victim at knife point of $10 and some car keys. After the robbery the victim was taken to the home of a Mr Joe Atallah in Phillip Street, Mt Austin. Douglas left the house and returned with this offender. 7 Upon arriving at the address the offender saw the victim look at him and yelled, "Don't look at me" whereupon the victim stopped looking at him and closed his eyes. Douglas and Lee left the house and returned a short time later. Douglas told the victim not to use Jalissa's name and not to tell the police. He then waved a gas bottle blow torch in the victim's face. The victim said that he wanted to go home. Douglas said, "Stop complaining and you will be able to see your family again". 8 This offender picked up the blowtorch and started walking towards the victim. He leaned towards the victim with the blow torch and leaned away and started laughing. Douglas and Lee soon thereafter left the premises in the victim's vehicle. 9 Atallah fell asleep and the victim escaped. He went to his home from where he contacted the police. The offender was arrested on 12 November 2020 and as was his right declined to be interviewed." 1. In relation to the offence of specially aggravated detain for advantage his Honour said at [10]-[25]: "10 …The victim in that matter is Shane Sweeney who was 46 years of age and with whom the offender shared a pod at the Junee Correctional Centre in the past. The victim lived alone at an address in George Street, Junee. The house has two entrances at the front and the victim's bedroom is at the rear of the premises. A Mr Hayden O'Rafferty was involved in the incident (as a victim) but has declined to give a statement to police. 11 In the early hours of the morning of 24 October 2020 the victim was asleep in his bedroom. This offender, Patrick Beauchamp and Zarah Hart and two other unidentified offenders (one male, one female) entered the premises. This offender, Beauchamp and the unidentified male went to the victim's bedroom. Beauchamp and the unidentified male were wearing balaclavas and this offender was armed with a piece of wood that was similar to a broom handle. 12 The victim woke as the offender struck him to the right side of his face with the piece of timber. The victim sat up but was blinded by a torchlight that was directed towards his face. The offender said to the victim, "Don't move cocksucker". The bedroom light was turned on and the victim saw the offender to the side of the bed holding the piece of timber in his left hand. The victim felt blood trickle down the side of his face. He put his hand to his head and there was blood on his hand and on the bedding. This offender and two others stood around the victim effectively trapping him. 13 This offender told the co-offender Beauchamp and the unidentified male what to do. Those two men searched through the victim's bedroom drawers. It is apparent from the report of Ms Dombrowski, psychologist (exhibit 1 on sentence) that they were looking for drugs. Beauchamp commented to the effect of, "There mustn't be anything here if he's not going to give it up after that whack". This offender, Beauchamp and the other male remained in the bedroom and did not allow the victim to move. The three of them stood over the victim and repeatedly said, "Stay there". Each time the victim attempted to move this offender would hold up the length of timber as if he was going to strike the victim with it again. The victim could hear the others present in the house rummaging through other rooms in the house. 14 About thirty minutes later this offender told the victim to get up; the victim did so and stepped into the hallway. This offender was in front of the victim and Beauchamp and the unidentified male were walking behind the victim. The victim punched this offender to the back of the head and then struck out behind him with his elbow hitting Beauchamp in the chest. 15 The unidentified male produced an extendable baton and struck the victim twice to the back of the left shoulder causing the victim to drop to his hands and knees in pain. The unidentified male told the victim to stop struggling. The victim was forced on to his hands on knees for the length of the hallway to the dining room. The unidentified male stood over the victim preventing him from getting up and therefore the victim remained on the dining room floor. 16 From where the victim was on the floor he could see O'Rafferty on the floor in the lounge room. O'Rafferty was bleeding and saying, "I don't want to die, I don't want to die". The victim could see that O'Rafferty had wet his pants. The victim also could see Zarah Hart and another woman rummaging through drawers in the lounge room. Those two women left the house through the front door and loaded items into a car. Beauchamp and this offender ran out of the double doors together three or four times returning after a minute or two on each occasion. 17 At about this time this offender and Beauchamp went to O'Rafferty's house and attempted to gain entry. The unidentified male stood over the victim effectively preventing him from moving. 18 When the offender and Beauchamp returned they tormented O'Rafferty by hitting him in the shins with a metal vacuum cleaner pipe. O'Rafferty was pleading with them and told them he could obtain drugs for them. 19 This offender then had the victim's mobile phone, held it to the victim's face and demanded that the victim transfer money and said, "Just give me some money, even if it's only a couple of hundred just give me some money". The offender, Beauchamp and the unidentified male continued to demand money and drugs from the victim and O'Rafferty. O'Rafferty continued to say he could get drugs. The offender said, "Well organise it", organise it". O'Rafferty got off the floor and said he would take them to see Trent Field and he said, "Trent won't come, I'll take you to his house". 20 With that this offender, Beauchamp and the unidentified male left the premises with O'Rafferty. They all walked out the front door of the house, entered a vehicle and drove away. By this stage dawn was approaching. The entire incident lasted for approximately one and one half hours. For the duration of the incident the victim felt that he was unable to move or leave his residence for fear of being further assaulted. 21 The victim locked the doors of his premises and remained in the house for about five minutes to ensure that the offender and the others had in fact left. He walked to the Junee Police Station where he reported the matter. Police observed dried blood on the victim's face and saw that he had a dishevelled appearance. The victim declined any medical treatment at that time. 22 Upon returning to his premises the victim located a small piece of broken timber, a Stanley knife and a broken pair of scissors that had been left behind by the assailants. The victim noted that his LG mobile phone, Samsung mobile phone, LG tablet, a money box containing about $30, cigarettes a small pouch containing a small quantity of tobacco, a small oxy cylinder and a hand painted aboriginal artwork had been stolen from the residence. 23 The victim went to the Junee Hospital on 24 October 2020. He had two wounds above his right eye that required a total of eight sutures; this injury having been occasioned when the offender struck the victim over the head with the piece of timber. This is the matter to which the charge of Reckless Wounding on the form 1 document relates. 24 The victim was also found to be suffering from a 10cm bruise over his left shoulder and a 10 cm bruise over his left triceps. The bruising lasted for about a month. The victim experienced pain for about three weeks. These are the injuries inflicted during the period of detention which ground the aggravating factor of occasioning actual bodily harm to ground the offence contrary to s 86(3) of the Crimes Act. 25 The offender was arrested on 16 February 2021 and as was his right declined to be interviewed in respect of the matter." Proceedings on sentence 1. Proceedings on sentence were conducted on 24 September 2021 and 4 November 2021. 2. The Crown bundle contained a Crown sentence summary; notice of committal, charge certificate and statement of agreed facts for sequence 1; notice of committal, amended charge certificate, Form 1 and statement of agreed facts for sequence 2; the applicant's New South Wales criminal record and custodial history; sentence facts for a prior offence of being carried in a vehicle without the consent of the owner; a written sentence judgment for a prior offence of manslaughter: R v Tristan Lee [2019] NSWDC 59; a breach of parole report dated 23 October 2020 and an updated breach of parole report dated 3 November 2020 relating to parole for the applicant's previous manslaughter offence; and an Intensive Corrections Order (ICO) breach report dated 3 November 2020 relating to the applicant's previous offence of being carried in a vehicle without consent. 3. Tendered on behalf of the applicant were two psychological reports, one of Julie Dombrowski dated 1 November 2021 and another of Kathryn Wakely dated 28 November 2018. The report of Ms Wakely had previously been tendered in the applicant's proceedings for manslaughter in 2019. The applicant also provided brief written submissions to the Court. 4. The two psychological reports relied upon by the applicant disclosed significant differences in relation to the applicant's background. The earlier report of Ms Wakely, while noting the applicant's aboriginality, did not raise issues of disadvantage flowing from his upbringing. Conversely, the more recent report of Ms Dombrowski detailed a history of parental separation, alcoholism, parental abuse and sexual abuse perpetrated on the applicant. 5. The report of Ms Dombrowski set out other aspects of the applicant's personal background. Ms Dombrowski noted that the applicant completed year 10 at school and then worked casually as a removalist. She also noted that the applicant was diagnosed with Post Traumatic Stress Disorder resulting from the incident that led to his conviction for manslaughter, for which he was sentenced in 2019 to imprisonment for 4 years and 6 months with a non-parole period of 2 years and 9 months dating from 16 May 2017. 6. Ms Dombrowski also set out the applicant's history of substance abuse. She noted that the applicant began using cannabis during adolescence and methamphetamines in 2013, at 26 years of age. The applicant reported to Ms Dombrowski that when he left prison in 2020, he felt dependent on methamphetamines and opioids. 7. Ms Dombrowski stated that the applicant reported using methamphetamines and opioids at the time of both episodes of offending. She further noted that the applicant reported that the detention offence was committed after attending the victim's house to purchase methamphetamines. Ms Dombrowski noted that the applicant reported that he has abstained from using methamphetamines in custody and is now taking psychotropic medication and buprenorphine to manage his opioid withdrawal. She further noted that while the applicant had failed to complete a detoxification program whilst on an ICO, he had completed the EQUIPs addiction program while in custody. 8. In the course of the proceedings on sentence, his Honour indicated his preliminary view as to the objective gravity of each of the offences (which ultimately reflected his final view), giving the parties the opportunity to argue a different position. Neither the Crown nor the applicant took up that opportunity. Remarks on sentence 1. In relation to the objective seriousness of the intimidation offence, the sentencing judge found the matter to be in the "lower end of the mid-range". In relation to the specially aggravated detain for advantage offence, his Honour found that the matter was "within the mid-range of seriousness". A more detailed discussion of his Honour's reasoning in respect of the objective seriousness for both offences appears below in the context of the grounds of appeal. 2. His Honour noted the age of the applicant and his prior convictions for affray in 2008; resist police officer and behave in an offensive manner in 2008; manslaughter in 2019; and being carried in a stolen vehicle and possession of a prohibited drug in 2020. His Honour found that although the applicant's criminal history was "not particularly extensive", it did "not entitle him to any particular leniency". 3. In relation to the applicant's subjective case, at the sentencing hearing, his Honour, having regard to the inconsistencies between the two psychological reports, found that the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 were "enlivened to an extent reducing the moral culpability of the offender". However, his Honour noted that "those factors do not achieve the same weight as they would if more information or evidence was available". 4. The sentencing judge also considered the applicant's history of substance use. His Honour found that the applicant's "unstable personality structures, trauma and substance abuse" justified a finding of special circumstances. His Honour noted that the applicant required "intensive and extensive supervision to ensure his proper reintegration into the community". 5. His Honour found that the applicant had not shown remorse for his offending conduct and was not satisfied that the applicant had good prospects of rehabilitation, on the basis that it was "too early to tell". 6. His Honour considered the issue of partial accumulation in respect of the two matters. His Honour found that there should be some degree of partial accumulation to recognise the different offending and different victims. 7. The sentencing judge applied a discount of 25% for the utilitarian value of the applicant's pleas. His Honour then imposed the sentence as set out above. Ground 1 - the sentencing judge's findings of the objective seriousness of both principal offences were not open on the facts of this case The test to be applied 1. As noted above, his Honour found the intimidation offence was in the "lower end of the mid-range" of objective seriousness, and the detention offence was "within the mid-range of seriousness". Neither offence was subject to a standard non-parole period, and it was therefore not necessary to use the language of standard non-parole period offences. A determination of the objective gravity of the offending remained an integral part of the sentencing exercise; a proportionate sentence could not be determined absent such a determination: The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [17]-[20]; Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 472; Amiri v R [2017] NSWCCA 157 at [26]. 2. In written submissions the applicant referred to the reasons of Brereton JA in Fuller v R [2022] NSWCCA 203 at [3] where his Honour expressed the view that a finding of objective seriousness is a conclusion of fact, "albeit one involving an evaluative judgement". His Honour continued that where an appeal challenges a finding of objective seriousness, the test is whether the finding is correct, and it is not subject to the limits of a review of a discretionary determination as set out in House v The King (1936) 55 CLR 499; [1936] HCA 40. The applicant noted that the other two members of the Court in Fuller v R did not accept his Honour's analysis. N Adams J, (with whom Adamson J, as her Honour then was, agreed) at [80]-[82], referring to various authorities, including Magro v R [2020] NSWCCA 25, maintained that a challenge to a sentencing judge's finding of objective seriousness required the applicant to establish House v King error. 3. Despite referring to Brereton JA's reasons in Fuller v R, the applicant did not make any submission as to their correctness. Rather, the applicant submitted that this case did not require the question to be settled. This submission was on the basis that his Honour's findings of objective seriousness were not open. This position assumes the success of the applicant's contention. If, contrary to the applicant's contention, it is found that the sentencing judge's finding of objective seriousness was open (in the House v The King sense) it is at least possible that, applying Brereton JA's view in Fuller v R, the applicant could still succeed. In other words, different outcomes are possible depending upon which test is applied. Brereton JA's view was a minority one in Fuller v R. It has otherwise been consistently held that the finding of objective seriousness is quintessentially a matter for the sentencing judge and is reviewable only on a limited basis: Mulato v R [2006] NSWCCA 282 at [37], [45]-[46]; Greentree v R [2018] NSWCCA 227 at [34]; Magro v R at [31]; Ahmad v R [2021] NSWCCA 30 at [18]. In the absence of formal challenge and full argument, it is not appropriate to depart from this consistent line of authority. 4. As noted above, his Honour indicated his preliminary view of the objective gravity of the offences with which no issue was taken by the applicant's (then) counsel. If the assessment made by the sentencing judge was not open in the House v The King sense, then it is difficult to see how the position taken by the applicant's counsel below could affect this. Had the conclusions not been open there can have been no forensic advantage in accepting them. It could not have affected the evidence or other forensic decisions made by either party. The approach of counsel below is, however, relevant, at least to the assessment of his Honour's reasons. That is to say, in circumstances where there is no contest as to a matter, there will not be the same expectation with respect to the reasons to be given for the particular finding: DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [33]. That is not to deny that there will be cases where the position of counsel in the court below has a greater, or different, impact on the assessment of a ground of appeal: see Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [79]-[83]. In the present matter, appropriately in the circumstances, the applicant did not attack his Honour's reasons, or seek to draw support for his grounds from them. The intimidation offence 1. The applicant stressed that the offence was, at least with respect to him, unplanned, impulsive, limited in time, and did not result in any injury, with the result that the finding of objective seriousness was not open to the primary judge. To understand where the applicant's offence fits in the scale, it is necessary to first have regard to the elements of the offence. The charge was that the applicant intimidated the victim with the intention of causing him to "fear physical or mental harm". Intimidation is defined in s 7 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) as follows: 7 Meaning of "intimidation" (1) For the purposes of this Act, intimidation of a person means— (a) conduct (including cyberbullying) amounting to harassment or molestation of the person, or Note— An example of cyberbullying may be the bullying of a person by publication or transmission of offensive material over social media or via email. (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) conduct that causes a reasonable apprehension of— (i) injury to the person or to another person with whom the person has a domestic relationship, or (ii) violence to any person, or (iii) damage to property, or (iv) harm to an animal that belongs or belonged to, or is or was in the possession of, the person or another person with whom the person has a domestic relationship, or (d) conduct amounting to the coercion or deception of, or a threat to, a child to enter into a forced marriage within the meaning of the Crimes Act 1900, section 93AC, or (e) conduct amounting to the coercion or deception of, or a threat to, a person to enter into a forced marriage within the meaning of the Commonwealth Criminal Code, section 270.7A (Definition of forced marriage). (2) For the purpose of determining whether a person's conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour. 1. As can be seen, there are a wide range of matters that might amount to intimidation. However, to make out the offence, it is necessary that the act be carried out with the intention of causing the complainant to fear physical or mental harm and it is likely that, other than in the unusual case, and in the absence of other evidence such as an admission, a trivial example of intimidation will not sustain an inference that the accused intended to cause physical or mental harm. 2. Returning to the present case, viewing the applicant's actions in isolation, and against the statutory criteria for the offence, I would regard briefly waving an unlit blowtorch in the vicinity of another person as towards the lower end of the scale of offences of intimidation. The applicant's actions, however, cannot be seen in isolation. While the applicant's lesser role can be accepted, on the agreed facts the complainant had been the victim of a robbery and then taken, by Mr Douglas, one of the perpetrators of the robbery, to the home of another person where he was detained. It was not suggested that the applicant was a party to this offence, or that he knew precisely what had occurred. However, when the applicant arrived at the premises with Mr Douglas, and saw the complainant look at him he yelled "Don't look at me". The overwhelming inference is that, prior to the applicant's arrival at the premises, he had become aware that the complainant was the victim of some form of criminal activity. Further, the applicant was present when Mr Douglas said to the complainant "Don't use Jalissa's name, none of this comes back to her, don't tell the police, definitely no police", confirming the illegal nature of the activity. It must have then become obvious that the complainant was being held against his will, given that after Mr Douglas waved the blowtorch in the complainant's face, the complainant said "I just want to go home" eliciting the response from Mr Douglas "stop complaining and you will be able to see your family again". These events preceded the applicant leaning in towards the complainant with the blowtorch. 3. While the facts were somewhat sparse and did not allow for a clear understanding of the applicant's motivations, there was no submission made that the complainant did not take Mr Douglas' threat seriously or that the applicant did not know what was going on. The nature of Mr Douglas' threat, made against a person being held against his will, gives context to the actions of the applicant. As the sentencing judge observed, while it was not suggested the applicant played a role in the victim's detention, that detention was "still relevant to the overall circumstances of the offending". 4. In assessing the applicant's complaint, it must also be understood that his Honour's finding that the offence was at the lower end of the mid-range was not one involving, or capable of, precision. The breadth of the mid-range contemplated by his Honour is not ascertainable. Postulating how his Honour's finding might differ from a finding that the offence was at the upper end of the low range is not helpful. I mean no criticism of the sentencing judge. These matters are necessarily imprecise: see the discussion in JG v R [2023] NSWCCA 33 at [94]-[103], per Wilson J (in dissent, but not as to this point). That is not to say that there will not be cases where there is an error in the assessment of the objective gravity of an offence. In some cases, a finding, despite its imprecision, will not have been open. It may be that error in this regard will more easily be demonstrated where the reasons for the particular finding suggest a serious misunderstanding of the range of offending conduct encompassed by the particular provision. This appears to be at least implicit in the reasoning on which such a ground was upheld in JG v R at [57]-[73] per Davies J, with whom Simpson AJA agreed. 5. In the present case, his Honour engaged in the necessary process of addressing the objective gravity of the offence, noting that his Honour's reasons reflected the exchange with counsel in the course of the proceedings. Having regard to the range of conduct that might constitute an intimidation offence against s 13 of the Crimes (Domestic and Personal Violence) Act, his assessment of the offence as "at the lower end of the mid-range" was one which was open to him. The detention offence 1. As noted above, his Honour found this offence to be in the mid-range of objective seriousness. Again, to determine the complaint with respect to the objective gravity of the particular offence, it is necessary to have regard to the nature of the offence created by the particular provision. Section 86(1) of the Crimes Act creates the basic offence, while s 86(2) and (3), provide for aggravated and specially aggravated forms of the offence. It is convenient to set out each of the three subsections: 86 Kidnapping (1) Basic offence A person who takes or detains a person, without the person's consent— (a) with the intention of holding the person to ransom, or (a1) with the intention of committing a serious indictable offence, or (b) with the intention of obtaining any other advantage, is liable to imprisonment for 14 years. (2) Aggravated offence A person is guilty of an offence under this subsection if— (a) the person commits an offence under subsection (1) in the company of another person or persons, or (b) the person commits an offence under subsection (1) and at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 20 years. (3) Specially aggravated offence A person is guilty of an offence under this subsection if the person commits an offence under subsection (1)— (a) in the company of another person or persons, and (b) at the time of, or immediately before or after, the commission of the offence, actual bodily harm is occasioned to the alleged victim. A person convicted of an offence under this subsection is liable to imprisonment for 25 years. 1. As can be seen, in the applicant's case, the specially aggravated offence in s 86(3) was made out based on both the offence having been committed in company, and the occasioning of actual bodily harm to the victim (either of which, without the other, would have constituted an offence against s 86(2) but not s 86(3)). 2. In addressing the objective gravity of the offence, the sentencing judge referred to the decision of R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130 and in particular to Johnson J's reasons (with which McClellan CJ at CL and Hammerschlag J, as his Honour then was, agreed). Johnson J (at [55]) identified the length of the detention, the extent to which fear or terror was occasioned, the manner in which the victim was treated, the extent of actual bodily harm, and the motive for the detention as factors relevant to an assessment of the objective seriousness of offences against s 86. I do not understand Johnson J to have identified these matters as the exclusive considerations to be used as a checklist. Indeed, Johnson J (at [53]) noted the breadth of conduct potentially falling within offences against s 86, referring to R v Newell [2004] NSWCCA 183. It will, of course, be necessary to consider the relative seriousness of a particular offence having regard to the elements of the offence charged, which of course differ between the basic, aggravated and specially aggravated forms of the offence. 3. Lerve DCJ, in assessing the objective seriousness of the detention offence, said at [29]-[33]: "29 The detention occurred for a period of about an hour and one half. It occurred in the early hours of the morning. Being in company is an element of the offence but there was more than one person in whose company the offender was at the time of the offending. Significant fear would have been instilled in the victim, noting in particular for the period of time that the victim was threatened. The threatening conduct was sustained and continued for the entirety of the period the victim was detained. The actual bodily harm is limited to pain and bruising but both lasted for a few weeks. The actual bodily harm taken in isolation would be on the lower end of injuries contemplated by the expression "actual bodily harm". The motive appears to be for the offender and his accomplices to obtain illicit substances. There does not appear on the material before me to be any element of vigilante activity. 30 Mr Keller put on behalf of the offender at the sentence hearing that the offender initially attended the victim's premises as a result of an invitation communicated by text message. The Crown correctly submitted that there was no evidence of that. However, there is paragraph 8 of the report of Ms Dombrowski (exhibit 1) where the author recounts the offender telling her that he attended the victim's home with companions to purchase methyl amphetamine for their personal use. I am prepared to deal with the matter on the basis that the attendance by the offender and the co-offenders was not entirely random. This is not a matter of mitigation but rather it would be more serious if the attendance at the premises had been completely random. 31 Again I gave an indication of a preliminary view before submissions. The Crown did not take issue with the suggestion that the matter was within the mid-range. 32 Mr Keller on behalf of the offender submits (MFI 1) that the offending was "nasty" but not the most serious example of this type of offending. Again, I did not understand Mr Keller to take issue with the suggestion that the matter was within the mid-range of seriousness. 33 In all the circumstances noting the duration of the detention, the time at which it occurred, the sustained nature of the threatening conduct, the nature of the injuries, the number of people in whose company the offender was, the fact that it was in the victim's home and the motive the matter is within the mid-range of seriousness. I have found that the factor of statutory aggravation provided for by s 21A(2)(eb) of the Sentencing Act is made out. Care will need to be taken not to double count." 1. I can accept that the duration of the detention tended to suggest an offence at the lower end of the range. That said, while the detention was not for many hours, as is sometimes seen in offences of this nature, the duration could not be said to be fleeting. 2. Based on the manner in which the case was presented by the Crown, the actual bodily harm relevant to the detention offence was limited to pain and bruising. The victim suffered a wound above his eye which required eight sutures as a result of the applicant striking him with the length of timber. This injury, however, was relied on only with respect to the charge of reckless wounding, which was on the Form 1. The appropriateness of this artificial approach might be doubted. It is helpful to recall the words of the plurality (McHugh, Hayne and Callinan JJ) in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40], that "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". It is difficult to see how this fundamental sentencing objective was assisted by singling out and laying a separate charge for the act of striking the victim with the weapon during the course of the criminal enterprise otherwise encapsulated by the detaining charge. There was nothing resulting from the application of The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 that required it. Nevertheless, that was the basis upon which the matter proceeded. The injuries were consequently at the lower, although not the lowest, end of actual bodily harm. 3. While the two factors referred to above pull in one direction, there are factors that pull in the other direction. The applicant was one of five offenders that entered the victim's home in the early hours of the morning when the victim would be expected to be (and was, in fact) asleep. These factors militate towards an offence of greater seriousness. While the striking of the victim with a length of wood was the basis of the reckless wounding charge, it did not lose all relevance to the charge of specially aggravated detain for advantage. It was, at least, the means by which the victim was woken and his attention drawn to the presence of the applicant and his co-offenders, before being made aware of their intentions. The applicant was also involved in the treatment of Mr O'Rafferty. This was, at least, relevant to the terror occasioned to the victim. Given the manner in which the matter proceeded, it is not appropriate to consider whether the treatment of Mr O'Rafferty had greater relevance (although, arguably, it did). 4. In addition to the above matters, the applicant's role in the offence is significant. (As to the relevance of an offender's role see R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [161]-[167]). The victim was known to the applicant, the applicant roused the victim by striking him, it was the applicant that directed other offenders as to what to do, he maintained a threat of violence, and gave directions to the victim, including the transfer of money. In short, the applicant appears to have taken the lead role in the offence. Having regard to these matters, and what I have said above with respect to the imprecision of expressions such as "mid-range", I am of the view that his Honour's finding, while perhaps not inevitable, was open. 5. Before leaving this ground, I note that the applicant relied on the decision of Jackson v R [2022] NSWCCA 148, which also involved an offence against s 86(3) of the Crimes Act. In that case, the objective seriousness was found to be "slightly above the mid-range". The applicant sought to compare the finding of objective seriousness made in Jackson v R, with that made in the present case, for the purposes of advancing the argument that the sentencing judge's finding was not open. The finding of objective seriousness in Jackson v R was just that, a finding, necessarily imprecise, based on the facts in that case. It has no value as a precedent. There is questionable utility in comparing a finding of objective seriousness in a case under appeal with a single decision: R v Bonett [2009] NSWCCA 135 at [35]; Lami v R [2021] NSWCCA 295 at [40]. Such a process is somewhat different to a process which tends to suggest that, in making a finding of objective seriousness, the sentencing judge sought to place the offence within the range without appreciating what that range was. With no disrespect to the parties who engaged in an analysis of the relative merits of the two cases, the lack of precision in such assessments and the limited nature of any review, are such that, in my view, nothing is to be gained by an analysis as to how far apart the two cases are. It is sufficient that I note my observation that it is not self-evident that the finding in Jackson v R demonstrates the applicant's point. Ground 2 - the aggregate sentence imposed was manifestly excessive 1. I have made observations above with respect to the objective seriousness of the offences, and his Honour's findings in that regard. While I have found his Honour's findings to be open, it remains necessary for me to determine whether the aggregate sentence imposed on the applicant was manifestly excessive based on the facts, the applicant's case, and on the application of proper principle. 2. A complaint of manifest excess is a complaint based on error. The error is, however, not an error capable of identification. That is, it is not an error which is sometimes as described as "specific" or "patent" error. Rather, it is a contention that the outcome is such that it can be inferred that some error must have occurred. This is sometimes described as "latent" error. A summary of the principles to be applied in a complaint of manifest excess was set out by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] as follows: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; 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]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this Court might have exercised the sentencing discretion differently. • 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. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust." 1. The aggregate sentence of 6 years and 3 months with a non-parole period of 4 years and 3 months was a severe one. The applicant received a discount of 25 percent for his early pleas of guilty. This represents starting points of 20 months and 7 years and 6 months on the intimidation and detain for advantage offences respectively. These starting points were made explicit by the sentencing judge. 2. The applicant's oral submissions tended to suggest the indicative sentence imposed with respect to the intimidation offence, would, if imposed as a separate sentence, have been manifestly excessive. There is some force in the submission that a sentence of 15 months for this offence would be excessive. It was certainly very heavy. While no sentence was actually imposed, given there were only two offences, the degree of notional concurrence is readily ascertainable. Had individual sentences been imposed, to achieve the total, the intimidation offence would have added a period of 8 months to the sentence imposed with respect to the specially aggravated detain for advantage offence. There was, however, no ground of appeal asserting that the indicative sentence was (or, if imposed, would have been) manifestly excessive. While an indicative sentence is not itself amenable to appeal, an erroneous approach may well reveal error in the aggregate sentence: R v Brown [2012] NSWCCA 199 at [17]. Certainly, it would appear that if an offence has been included in an aggregate sentence, in circumstances where there was error in finding the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was crossed, resentencing would be required: see, for example Sarhene v R [2022] NSWCCA 79 at [34]-[39]. 3. For my own part, and noting the absence of argument directed to the issue, while the appeal is against the aggregate sentence, if that sentence is arrived at after the determination of an indicative sentence that reveals error, albeit latent, that will be an error committed in the process of determining that aggregate sentence. Further, the error is one that is likely to have, at least the capacity, to influence the aggregate sentence: see Benn v R [2023] NSWCCA 24 at [82]; Newman (a pseudonym) v R [2019] NSWCCA 157 at [11], referring to Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. Whether it does have this capacity will, of course, fall to be considered in the particular case. The capacity may be particularly obvious in a case (of which the present is an example), where there are relatively few offences, each of which is significant in the context of the aggregate sentence. In such a case, irrespective of whether the aggregate itself is excessive, it has been arrived at by a process which involves error, and it will be necessary to re-exercise the sentencing discretion. 4. The foregoing is consistent with the view that s 53A of the Crimes (Sentencing Procedure) Act does not change the fundamental principles of sentencing or assist in somehow protecting a sentence from appeal by eliminating, or at least restricting, review of its component parts. It should be noted in this context that the nature of an appeal against "sentence" where multiple sentences have been imposed has not been uncontroversial: see AB v R (2013) 233 A Crim R 205; [2013] NSWCCA 160 at [74] per N Adams J, cf at [86] per Beech-Jones J (as his Honour then was); Arnaout v R (2008) 191 A Crim R 149; [2008] NSWCCA 278 at [20]-[21] per Basten JA; McMahon v R [2011] NSWCCA 147 at [3]-[4]. 5. The view expressed above receives support from cases including Benn v R at [82]; R v Brown at [17]; R v Nykolyn [2012] NSWCCA 219 at [58]. Nor is it inconsistent with the proposition that, if an indicative sentence is excessive, it does not necessarily follow that the aggregate sentence is excessive: see JM v R (2014) 245 A Crim R 528; [2014] NSWCCA 297 at [40]; Kerr v R [2016] NSWCCA 218 at [114]; Kresovic v R [2018] NSWCCA 37 at [42]; Burke v R [2022] NSWCCA 6 at [33]; R v Cook [2023] NSWCCA 9 at [171]. It may, however, be inconsistent with what was said in SHR v R [2014] NSWCCA 94 at [40]; in PD v R [2012] NSWCCA 242 at [44], and, in particular, the approach at [82]. It is also likely inconsistent with Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [227], a passage set out with approval in BJS v R [2013] NSWCCA 123 at [252], (although it should be noted that Hoeben CJ at CL in BJS v R was dealing with a complaint of manifest excess in the aggregate sentence and also (at [253]) adopted what was said in PD v R at [44]). 6. The foregoing does not purport to be a comprehensive review of the authorities on the issue of the review of aggregate sentences on appeal. Nor does the discussion consider whether the statements in the various decisions formed part of the ratio of the case. In the absence of a ground and argument, it is neither necessary nor appropriate to further consider the issue here. The ground to be determined is whether the aggregate sentence was manifestly excessive. 7. The commencement date is an aspect of the sentence imposed. The severity of the sentence is impacted by the degree to which any pre-sentence custody or concurrency with earlier offences is taken into account. The applicant was in custody, bail refused, from the time of his arrest with respect to the intimidation charge on 12 November 2020. The commencement date of the present sentence, 12 June 2021, was seven months after that arrest. The applicant was charged with the detaining offence on 16 February 2021, while in custody. The applicant's parole in relation to the manslaughter sentence was revoked, with the result that he was serving 1 year and 12 days, being the balance of his parole, commencing on the day he entered custody with respect to the intimidation charge and expiring on 23 November 2021 (some two weeks after the date of sentence). Further, during the remand period, he served two sentences, the first of 2 months for damaging property, and the second of 6 months and 27 days being the balance of an ICO for an offence of being carried in a stolen vehicle. Both those sentences also dated from 12 November 2020, the latter expiring on 7 June 2021. The result was that none of the applicant's pre-sentence custody was solely attributable to the current offences. 8. It can be seen from the above that the applicant's sentence commenced five days after the expiry of the sentence resulting from the revocation of the ICO. However, a little over the first five months of the sentence was set so as to run concurrently with the applicant's balance of parole for the earlier manslaughter sentence. While, had it not been for the present offences, it may have been possible for the applicant's parole to be reinstated, that does not, of itself, justify total concurrence: see generally Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58. The sentencing judge had a discretion in the present matter to date the sentence to commence at any point between 12 November 2020 and the date of sentence, 8 November 2021: s 47 of the Crimes (Sentencing Procedure) Act. The backdating of the sentence to 12 June 2021, was not suggested (either at first instance or on appeal) to be an inappropriate exercise of his Honour's discretion. 9. The commission of the offences in breach of parole was an aggravating feature and cannot be overlooked. The offence of reckless wounding contained on the Form 1 attached to the detaining offence, required consideration in accordance with the guideline judgement of Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518, noting some care was required to be taken given the overlap between the Form 1 offence and the primary offence, perhaps limiting the additional weight that could be given to personal deterrence and retribution with respect to the primary offence. 10. Against the above considerations, the applicant's subjective case was not strong. Given the conflict in the evidence as to the circumstances of the applicant's upbringing, I, like the sentencing judge, would accept that the applicant's moral culpability was, to some extent, reduced by his background but that this factor cannot be given significant weight in the absence of more detailed and reliable evidence. 11. While the applicant did not have a lengthy record, it was such that, as noted above, the sentencing judge found it did not "entitle him to any particular leniency". The most serious matter on that record was the manslaughter offence as to which the applicant's liability was based on an unlawful and dangerous act, the objective gravity being assessed (as it happens, by the same sentencing judge) at "very much well below the mid-range seriousness" but not at "the lowest". In that matter, the sentencing judge, with some "minor hesitation", was "prepared to find on balance that the offender is unlikely to reoffend". However, his Honour found that while there were "certainly prospects of rehabilitation", he was "not prepared to find on balance, at [that] point, that there [were] good prospects of rehabilitation". 12. The most serious offence two offences the subject of the aggregate sentence was, by a significant margin, the detain for advantage offence. The detention was with the intention of committing a serious indictable offence (see s 86(1)(a1) of the Crimes Act), particularised as larceny. It was, in other words, an offence in the nature of a robbery, or at least an attempted robbery. While it was not an element of the offence that the victim be placed in fear, this was clearly what occurred. However, in addition to what would constitute a basic robbery offence, this offence occurred by breaking into the victim's home, in company, where he was detained, and actual bodily harm was occasioned to him. Having regard to these matters, and those discussed above, and accepting it may be a very blunt tool, it is not irrelevant to consider that, for an offence of armed robbery with the features set out in the guideline judgment of R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, (absent the serious additional matters present here but with a late plea of guilty), a head sentence of between 4 to 5 years would be appropriate. 13. Balancing the various factors referred to above, ultimately, the applicant has not persuaded me that the aggregate sentence imposed on the applicant with respect to the two offences was unreasonable or plainly unjust. 14. I propose the following orders: 1. Leave to appeal is granted. 2. Appeal dismissed. ********** 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: 27 March 2023