Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Acton v R [2024] NSWCCA 92 Hearing dates: 20 May 2024 Date of orders: 12 June 2024 Decision date: 12 June 2024 Before: Ward P at [1]; Hamill J at [2]; Chen J at [6] Decision: (1) Grant leave to the applicant to appeal against the sentence imposed on 23 February 2023. (2) Allow the appeal. (3) The sentence imposed on 23 February 2023 is quashed and in lieu thereof impose an aggregate sentence of imprisonment for 3 years and 6 months, with a non-parole period of 2 years and 3 months commencing 22 April 2022. The applicant will be eligible to be released on parole on 21 July 2024. The sentence will expire on 21 October 2025. Catchwords: CRIME – appeals – appeals against sentence – one count of aggravated break and enter with intent to commit a serious indictable offence and two counts of use offensive weapon with intent to commit an indictable offence – alleged error in applying the discount for the applicant's guilty pleas to aggregate sentence rather than indicative sentences – alleged error in finding that that there was the actual intentional use of a knife to slash across the victim's torso – ground 2 upheld – applicant re-sentenced Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Cases Cited: AM v R [2024] NSWCCA 26 Aryal v R [2021] NSWCCA 2 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Davis v R [2015] NSWCCA 90 Dean v R [2020] NSWCCA 317 DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 Elsaj v R [2017] NSWCCA 124 FL v R [2020] NSWCCA 114 Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485 Ibbotson (a pseudonym) v R [2020] NSWCCA 92 JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 Moodie v The Queen [2020] NSWCCA 160; (2020) 284 A Crim R 87 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Ocek v R [2023] NSWCCA 308 R v Daldy-Rowe [2019] NSWDC 899 R v Holder [1983] 3 NSWLR 245 R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Tisserand [2021] NSWDC 543 R v Zerafa [2021] NSWDC 547 Ragg v R [2022] NSWCCA 150 RO v R [2019] NSWCCA 183 Sharpe v R [2006] NSWCCA 255 Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 Turnbull v R [2019] NSWCCA 97 Vaughan v R [2020] NSWCCA 3 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Weiss v R [2020] NSWCCA 188 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 XY (A Pseudonym) v R [2023] NSWCCA 50 Zerafa v R [2023] NSWCCA 109 Category: Principal judgment Parties: Bobby Acton (Applicant) Rex (Respondent) Representation: Counsel: R Khalilizadeh/B Goncalves (Applicant) P Hogan (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2022/00115534 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: N/A Date of Decision: 23 February 2023 Before: McHugh SC DCJ File Number(s): 2022/00115534 HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Bobby Acton, sought leave to appeal from the sentence imposed on him in respect of one count of aggravated break and enter with intent to commit a serious indictable offence, being larceny, contrary to s 113(2) of the Crimes Act 1900 (NSW); and two counts of use offensive weapon with intent to commit an indictable offence, being intimidation, contrary to s 33B(1)(a) of the Crimes Act. The offending involved the applicant breaking into the shared commercial premises of two businesses in South Nowra through a hole in the wire fencing and brandishing a knife towards two victims when they confronted him. During the course of that confrontation, the hooded jumper worn by one of the victims occasioned a large 13-centimetre cut to the front of it. On 23 February 2023, the applicant was convicted and sentenced by McHugh SC DCJ ('the sentencing judge'). The sentencing judge imposed an aggregate sentence consisting of a non-parole period of 2 years and 6 months, commencing 22 April 2022, and a head sentence of 4 years "following a discount of 25 per cent", with the applicant being eligible for release to parole on 21 October 2024. His Honour also indicated the sentence for each count and provided that each indicative term "has been reduced by a discount of 25 percent for the plea of guilty". The applicant sought leave to appeal against his sentence on two grounds: 1. The sentencing judge erred in applying the discount to the aggregate sentence, rather than the indicative sentences, in contravention of s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The error in the "first approach" of the sentencing judge – to fix the aggregate sentence and then apply the discount before determining the indicative sentences – was not cured by the sentencing judge approaching the determination of the sentence in another (albeit correct) manner and was in breach of the totality principle; and 2. The sentencing judge made an erroneous finding of fact that there was the "actual intentional use of a knife to slash across [the victim's] torso". The Court (per Ward P, Hamill and Chen JJ) granting leave to appeal against the sentence, allowing the appeal and re-sentencing the applicant, held: As to ground (i): 1. Although it might have been preferable for the sentencing judge to approach the matter more straightforwardly by indicating the sentences for each offence, applying the discount and thereafter imposing the aggregate sentence, that he did not do so did not lead to the principle of totality being bypassed, as was submitted by the applicant. The relevant remarks, when read as a whole with the sentencing judgment, do not suggest that the sentencing judge impermissibly engaged in "reverse engineering" so as to fit the indicative sentences within the aggregate sentence that had been pronounced: at [45] (Chen J). 2. The more logical inference drawn, from the indicative and aggregate sentences imposed, is that the sentencing judge adopted the correct approach by applying the discount to the indicative sentences and then considered matters of accumulation and totality before determining the aggregate sentence: at [3] (Hamill J). As to ground (ii): 1. It was not open to the sentencing judge to find beyond reasonable doubt that the applicant had the "actual" intent to use a knife to slash across the victim's body. It is an equally consistent hypothesis from the agreed facts and CCTV footage that the cut to the victim's jumper occurred as the applicant was seeking to retrieve the knife from his pocket. The reasonable doubt as to how the victim's jumper was slashed should be resolved in favour of the applicant: at [4] (Hamill J), [64]-[65] (Chen J). JUDGMENT 1. WARD P: I agree with Chen J, for the reasons that his Honour has given, that ground 1 should be dismissed but ground 2 upheld. Therefore, it is necessary to re-sentence on all offences. I have had the advantage of Chen J's reasons in relation to re-sentence and, having independently taken the matters there referred to into account, I also agree with Chen J as to the sentence now to be imposed. 2. HAMILL J: I have the considerable advantage of having considered the judgment of Chen J which was circulated in draft form and with which the President has indicated her concurrence. Chen J's careful analysis of the facts, sentencing judgment and relevant legal principles relieves me of the task of revisiting those matters. I agree with the orders proposed by his Honour. 3. I agree with Chen J that the first ground of appeal cannot be accepted for the reasons his Honour provides. Judge McHugh reserved judgment and I am unable to draw the inference that his Honour fell into the error asserted when, as a matter of arithmetic, the aggregate sentence imposed (4 years) did not represent the nominated starting point (6 years) less the 25% reduction for the applicant's early plea of guilty. There is no round number that, reduced by 25%, would result in an aggregate sentence of 4 years. If Y x 75% = 4, then Y is 5.33 (repeating). That is an unlikely starting point. Conversely, each of the indicative sentences appeared to derive from a round number reduced by 25%: (1) 40 months less 25% (10) = 2 years, 6 months; (2) 5 years less 25% = 3 years, 9 months; (3) 2 years less 25% = 1 year, 6 months. The more logical inference is that his Honour adopted the correct approach by applying the discount to the indicative sentences and then considering matters of accumulation and totality before determining the aggregate sentence. While the language his Honour employed, and the order in which he announced the sentence in the course of his remarks gave rise to the concerns reflected in the applicant's ground of appeal, the ground cannot be sustained. 4. I agree with Chen J that the second ground of appeal is established for the reasons his Honour provides. It was unnecessary in this appeal to consider the precise standard of review because the applicant submitted the impugned finding was "not open" on the evidence. I agree with Chen J that this argument must be accepted. The CCTV footage does not support an inference that the offence involved the "actual intentional use of the knife to slash across Mr Browne's torso" and the agreed facts did not suggest that the applicant acted with such an intention. Based on the indicative sentence nominated for the offence against Mr Browne, the erroneous finding played a significant role in the sentencing outcome. 5. Having considered the sentencing discretion afresh in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 and the approach explained by Simpson AJA in Turnbull v R [2019] NSWCCA 97 at [42], and taking into account the new evidence tendered on the usual basis, I agree with the sentence proposed by Chen J. This will result in the applicant being eligible for release on 21 July 2024 and will include an extended period of supervised parole. 6. CHEN J: On 9 December 2022, Bobby Acton ('the applicant') pleaded guilty in the Local Court to three offences – namely: 1. use offensive weapon with intent to commit an indictable offence, being intimidation, contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW) (in relation to Troy Browne); 2. use offensive weapon with intent to commit an indictable offence, being intimidation, contrary to s 33B(1)(a) of the Crimes Act (in relation to Shane Reay); and 3. aggravated break and enter with intent to commit a serious indictable offence, being larceny, contrary to s 113(2) of the Crimes Act. 1. The maximum penalty for the intimidation offence is 12 years imprisonment and 14 years for the aggravated break and enter. Neither offence has a standard non-parole period. 2. On 9 December 2022, the applicant was committed for sentence from the Local Court to the District Court. On 23 February 2023, the applicant was convicted and sentenced by McHugh SC DCJ ('the sentencing judge') to an aggregate term of imprisonment of 4 years, with a non-parole period of 2 years and 6 months, commencing on 22 April 2022 (the date the applicant was arrested, and taken into custody). The applicant is eligible for release to parole on 21 October 2024. 3. The applicant seeks leave to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), to this Court against the sentence imposed, arguing that the sentence was the product of error in two respects: first, the applicant argues that the sentencing judge erred in applying the discount for his guilty pleas to the aggregate sentence, rather than the indicative sentences (ground 1); and, secondly, that the sentencing judge erred when finding that there was "actual intentional use of a knife to slash across [the victim's] torso" (ground 2). Background The offending 1. The applicant was sentenced in accordance with a Statement of Agreed Facts (the 'agreed facts'). What follows is drawn from those agreed facts and the sentencing judgment. Given the sentencing judgment does not have a medium neutral citation and is in transcript form, the references to the page numbers in that judgment are expressed as J1 etc. 2. Troy Browne is the owner of the business Concrete Coast Sleepers and Fencing, located on the Princes Highway in South Nowra. He has a business partner who owns the business South Coast Plunge Pools with adjacent premises. Each business has its own office space, and the premises are enclosed by large wire fences and a padlocked gate. The businesses shared a CCTV system which could be viewed from the computers in each of the two offices. At the time of the offending, there was a large hole in the wire fencing of the premises. Mr Browne had placed a sheet of fencing in front of the hole to block it off. 3. At 6:58am on Thursday 21 April 2022, the applicant entered the premises through the hole in the wire fence. He entered the office of South Coast Plunge Pools by forcefully pulling the door open. He searched through the office space, opening the cupboards and drawers and placing a number of items inside a green shopping bag. The applicant was also observed to enter into a storage area underneath a display pool on the premises of South Coast Plunge Pools. 4. Mr Browne was in his office when he observed the applicant on the CCTV. He and an employee, Shane Reay, ran towards the area where the applicant had been seen on the CCTV. Mr Browne yelled, "Get the fuck out", and the applicant responded, "I've got a knife", or words to that effect. As the applicant came out of the storage area, Mr Browne, who by that time had grabbed a broom, swung the broom in the direction of the applicant "with the intention of protecting himself in… case the [applicant] possessed a knife" (J3). 5. The applicant grabbed the broom and a struggle ensued between the two men. The applicant and Mr Browne came to be "wrestling" on the ground, with Mr Browne attempting to restrain the applicant. The applicant retrieved a knife from the pocket of his jumper, causing Mr Browne to let go of the applicant and back away (J3). The applicant approached Mr Browne and "in a threatening way lunged a knife towards him and ran in an aggressive manner with the knife held in his outstretched hand" (J3). Mr Browne described the knife to have a blade 4 or 5 inches in length and a black grip handle (J3, agreed facts at [20]). 6. The applicant ran from the premises and was chased by Shane Reay. Shane Reay chased the applicant towards the rear fence, when the applicant "turned and swiped the knife toward him" (J3). The applicant then exited the premises through the hole in the wire fence and ran from the scene to the nearby bush. 7. A green shopping bag was located inside the storage area which was identified to contain property of South Coast Plunge Pools. Mr Browne noticed that the hooded jumper he had been wearing had a large 13cm slash mark across the front of it. The jumper was "not damaged" prior to the incident (J4, agreed facts at [24]). 8. The police arrived at 7:55am and the movements of the applicant were tracked. The police located a large black duffel bag that contained various items, including a black wallet holding a Medicare card in the name of the applicant. 9. The following day, the applicant was apprehended by police. The police conducted a 'photo line-up' consisting of 20 photographs. Mr Browne selected the photograph of the applicant (J4, agreed facts at [30]). The sentencing judgment 1. In the sentencing judgment, the sentencing judge referred to the aggravated break and enter with intent to steal as offence one (J10); the intimidation offence involving Troy Browne as offence two (J10-11); and the intimidation offence involving Shane Reay as offence three (J11). It is convenient to continue to refer to the offences by those descriptions. (It should be noted, however, that when imposing the sentences, the sentencing judge reverted to describing the offences as "charges"). 2. In order to deal with the applicant's grounds of appeal, it will be necessary to return to some of the detail of the sentencing judgment and, in particular, those parts of the sentencing judgment that are challenged by the applicant. At the present time, it is sufficient to note the following overview and summary of the sentencing judgment. 3. In assessing the objective seriousness of the offending, the sentencing judge found that there was "limited evidence of planning" and that the break and enter was "an opportunistic offence" which likely arose when the applicant saw the hole in the fence near where he had been living in a makeshift camp (J9). 4. The sentencing judge considered the victim impact statement of Mr Browne to be "compelling" and demonstrated that the offending "had a real effect on the victim and must be firmly condemned" (J9). 5. In relation to the statutory aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSP Act'), the sentencing judge accepted that the offending was aggravated by virtue of the fact that the applicant has a record of previous convictions (s 21A(2)(d), J7) and, in relation to the aggravated break and enter offence, that the offence involved the actual or threatened use of violence (s 21A(2)(b), J7). He also accepted the submission of the applicant that the offending was mitigated by the pleas of guilty (s 21A(3)(k)) and that the offending was not part of a planned or organised criminal activity (s 21A(3)(b), J10). 6. The sentencing judge considered that the objective seriousness for offence one was "significantly below the mid-range", characterising the offence as "opportunistic offending by a homeless person who [was] carrying a knife at the time" (J10). In relation to the intimidation offences, the sentencing judge found that the objective seriousness of offence two was "slightly below the mid-range" (J11), but noted that preceding this offence there was "a fight with a broom handle, a struggle, and then the actual intentional use of a knife to slash across Mr Browne's torso and it is only by the slimmest of margins that the knife only cut his shirt and not his stomach" (J11). This finding is the subject of the second ground of appeal. And, for offence three, the sentencing judge found that the objective seriousness was "significantly below the mid-range – lower than that of count two" albeit that it was "still objectively serious" (J11). 7. Earlier, the sentencing judge found that "the intended intimidation of the victims in the particular circumstances should be regarded as quite high with a high degree of fear inherently held by a victim in the circumstances" (J6). 8. The sentencing judge then addressed subjective matters. He accepted that the applicant had a disadvantaged background and that the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ('Bugmy') operated to reduce the applicant's moral culpability for the offending (J11-12). The sentencing judge also referred to the applicant's exposure to sexual abuse, as well as his exposure to alcohol and drug misuse (J7). 9. The sentencing judge found that the applicant's lengthy criminal history did not entitle him to any leniency (J13). Further, the sentencing judge found that his record "shows a continuing attitude of disobedience… and retribution, deterrence and protection of society are relevant factors", albeit that the level of disobedience did not reach the continued level of disobedience of the law as discussed in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (J13). 10. The sentencing judge gave "full weight…– that is, the 25 percent" to the applicant's early pleas of guilty (J13). 11. In connection with remorse, the sentencing judge noted that the applicant did not give evidence and, having regard to the history contained in the report from the psychiatrist, Dr Justine Schelle, dated 9 August 2022, considered that the applicant's insight and judgment "were poor" at the time of interview and inferred that remained the position (J13). Based upon the opinions expressed in this report, the sentencing judge found that the applicant's prospects of rehabilitation "can only be described as poor" (J16). 12. Although the applicant did not give evidence at the sentencing hearing, the sentencing judge nevertheless accepted the applicant's history as provided to Dr Schelle – including his long-standing use of illicit drugs, the abuse he suffered at a boys' home, his family history of substance abuse and the lack of treatment he has received for his substance abuse issues and trauma. His Honour noted the diagnosis made by Dr Schelle of "a severe enduring substance use disorder of stimulants, combined with antisocial personality disorder, persistent dysthymic disorder and symptoms of post-traumatic stress disorder" (J13-15). The sentencing judge did not consider the applicant's mental health to be "causative", but took it into account in moderating the need for general or specific deterrence (J10). 13. For the intimidation offences, the sentencing judge considered that general deterrence "must play a significant role in the sentencing of offenders" and that, given the applicant's "attitude, there must be a real element of specific deterrence" (J16). 14. The sentencing judge considered that "on any view", the offending had crossed the threshold in s 5 of the CSP Act and determined that an aggregate sentence was appropriate (J17). His Honour made a finding of "special circumstances" under s 44 of the CSP Act on the basis of the applicant's need for rehabilitation and risk of institutionalisation. However, as the sentencing judge considered the applicant's prospects of rehabilitation outside the prison system to be poor, the non-parole period was reduced only slightly to allow the applicant to benefit from a longer term of supervision and to undertake rehabilitation (J18). 15. The sentencing judge imposed an aggregate sentence consisting of a non-parole period of 2 years 6 months, commencing 22 April 2022 from a head sentence of 4 years "following a discount of 25 percent", with the applicant being eligible for release on parole on 21 October 2024 (J19). Ground 1: the error in applying the discount to the aggregate sentence Introduction 1. By this ground of appeal, the applicant argues that the sentencing judge erred in applying the discount for the guilty pleas to the aggregate sentence, and not the indicative sentences, in contravention of s 53A(2) of the CSP Act. As later explained, the substance of this ground amounted to a complaint about the failure of the sentencing judge to give proper effect to the principle of totality when sentencing the applicant. 2. The passages in the sentencing judgment that were argued to disclose that error are as follows (J18-19): … The aggregate sentence I impose consists of a non-parole period of two years six months commencing from 22 April 2022 and a head sentence of four years. That is following the discount of 25 percent from a head sentence of six years. The [applicant] will become eligible to be released on parole on 21 October 2024. The sentences that I would have imposed for each sentence if such sentences had been imposed instead of an aggregate sentence are the offence of charge one, a sentence of two years six months. This term has been reduced by a discount of 25 percent for the plea of guilty. For the offence of charge two, a sentence of three years nine months. This term has been reduced by a discount of 25 percent for the plea of guilty, ie, from five years. For the offence of charge 3, a sentence of one year six months. This term has also been reduced by a discount of 25 percent for the plea of guilty. I will give that again. The aggregate sentence I impose consists of a non-parole period of two years six months, commencing from 22 April 2022, from a head sentence of four years following a discount of 25 percent. The [applicant] will become eligible to be released on parole on 21 October 2024, having regard to the 306 [days] that he has been in custody… 1. To summarise the above, and putting to one side the order in which the sentencing judge addressed the sentences, the indicative sentences were: 1. offence one: 2 years and 6 months. 2. offence two: 3 years and 9 months. 3. offence three: 1 year and 6 months. 1. In respect of each indicative sentence, the sentencing judge noted that the "term has been reduced by a discount of 25 percent for the plea of guilty". 2. The aggregate sentence imposed was for 4 years, with a non-parole period of 2 years and 6 months. The sentencing judge noted that the aggregate sentence was "following the discount of 25 percent from a head sentence of six years" (J18; J19). In fact, the discount on the aggregate sentence was 33 percent, not 25 percent as the sentencing judge indicated or, put another way, applying the 25 percent discount would produce an aggregate sentence of 4 years and 6 months, not 4 years. Discounting of indicative sentences: s 53A of the CSP Act 1. Section 53A of the CSP Act provides: 53A Aggregate sentences of imprisonment (1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following— (a) the fact that an aggregate sentence is being imposed, (b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. (3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence. (5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section. 1. In relation to s 53A(2) and the discounting for a plea of guilty, the following matters should be noted. First, it is well-established that the discount of 25 percent for the applicant's guilty pleas should be applied to each of the indicative sentences, not the aggregate sentence: Elsaj v R [2017] NSWCCA 124 at [56]; Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [6] and [138] ('Ibbotson'); Weiss v R [2020] NSWCCA 188 at [69]-[70] ('Weiss'). Part 3 of the CSP Act, referred to in s 53A(2)(b), includes s 25D (the provision that conferred and quantified the entitlement of the applicant to a discount for his guilty pleas). Secondly, and following on from the first matter, applying that discount to the aggregate sentence, rather than the indicative sentences, is an error requiring this Court to intervene and resentence: Weiss at [70]. Thirdly, applying the discount to the indicative sentences and not the aggregate sentence aids transparency and ensures that the principle of totality, which "should ordinarily come last in the sentencing process", is correctly applied: Ibbotson at [15]; JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [39](6). By that last mentioned principle, a sentencing court, when sentencing for a series of offences and imposing an aggregate sentence, must assess whether the aggregate is just and appropriate having regard to the totality of the criminality: R v Holder [1983] 3 NSWLR 245, 260; Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at [18]; R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [11]-[12]. Discussion and consideration 1. The applicant's essential submission is that, having considered that an aggregate sentence was appropriate and noting that the applicant was entitled to a 25 percent discount for his early guilty pleas in accordance with s 25D(2)(a) of the CSP Act, the sentencing judge erroneously applied that discount to the aggregate sentence, rather than the indicative sentences (applicant's submissions at [34] and [42]). Further, the applicant argues that the sentencing judge further complicated, but did not cure, this error in applying the discount in a second, but different, way (applicant's submissions at [42]). 2. The key passage of the sentencing judgment has been set out at [32], above. 3. The applicant submits that the "first approach" of the sentencing judge was, as a "starting point", to fix the aggregate sentence and then apply a discount and, thereafter, imposed indicative sentences "which were then accumulated to amount to the 'discounted' aggregate" (applicant's submissions at [43]). The upshot, the applicant submitted, was that the sentencing judge reached the aggregate sentence in two different ways: one which involved error and one which, of itself, did not (applicant's submissions at [44]). 4. The applicant, during submissions in this Court argued that, although the second approach was not erroneous, by first dealing with the aggregate sentence the totality principle was infringed, with the consequence that the sentencing discretion miscarried, and that error could not be cured by the second approach. This followed, the applicant argued, because the second approach was neither independent to, nor separate from, the first approach with the consequence that the principle of totality had not been applied in the right way, and at the right time. The thrust of what was argued was that the sentencing judge determined – both in substance and in form – the aggregate sentence first, thereby denying the proper application of the principle of totality. 5. In my view, although it might have been preferable for the sentencing judge to approach the matter more straightforwardly (and solely) by indicating the sentences for each offence, applying a discount for the guilty plea to each of them in conformity with s 53A(2) of the CSP Act, and thereafter imposing the aggregate sentence, that he did not do so did not lead to the principle of totality being bypassed, for the following reasons. First, there is nothing in the order that the sentences were announced that dictates such a conclusion. Indeed, the applicant, during the course of the hearing in this Court, did not contest the proposition that it was both common, and acceptable, for sentencing courts to announce the aggregate sentence before announcing the indicative sentences, and also accepted that it would not be erroneous for a sentencing court to approach the matter in that way. Secondly, when one examines the reasons of the sentencing judge, his Honour makes plain that before announcing any sentences, he has "had regard to the principle of totality, given there are multiple offences and the principle of proportionality" (J17). It is apparent from where that consideration occurred in the reasons of the sentencing judge that, consistent with authority, the sentencing judge dealt with totality at the end of the sentencing process. Thirdly, following on from the second matter, when one has regard to the aggregate sentence imposed and the indicative sentences, it is apparent that there was only a very small degree of accumulation. Thus, rather than suggesting the erroneous application or subversion of the principle of totality, to my mind the sentencing structure reinforces the opposite conclusion – that the sentencing judge gave some prominence to the principle of totality. Fourthly, having expressed these matters, thereafter the reasons themselves contain a clear statement that the discount was applied to the indicative sentences. Fifthly, although the sentencing judge did, twice, remark that the "head sentence" was four years and that was "following the discount of 25 percent from a head sentence of six years", in my view when the sentencing judgment is read as a whole, those remarks, of themselves, do not suggest that the sentencing judge impermissibly engaged in "reverse engineering" so as to fit the indicative sentences within the aggregate sentence that had been pronounced, as was submitted, and infringe the principle of totality. 6. It follows that I would not uphold ground 1. Ground 2: the error in finding there was actual intentional use of a knife Introduction 1. By this ground of appeal, the applicant argues that the sentencing judge erred in finding that, following the struggle with the broom and the wrestling, there was by the applicant "the actual intentional use of a knife to slash across Mr Browne's torso and it is only by the slimmest of margins that the knife only cut his shirt and not his stomach" (J11). The applicant submits that the finding, which was made in the context of the sentencing judge assessing the objective gravity of offence two (the intimidation offence involving Mr Browne), was "not open" and, further, was not "in accordance with the submissions of the parties on sentence" (applicant's submissions at [49]). 2. In relation to this last submission, it was not suggested by the applicant, either in written or oral submissions in this Court, that there was any procedural unfairness in making the relevant finding. Given that stance, nothing further need be said about that submission. The sentencing judgment 1. Before addressing the substance of the submissions directed to this ground, it is useful to return to aspects of the sentencing judgment to place the challenged finding into its proper context. In this respect, the following three parts of the sentencing judgment warrant emphasis: 1. The interactions between Mr Browne and the applicant occurred after the applicant "came out of the storage area" (J3). Mr Browne, as earlier noted, swung the broom in the direction of the applicant "with the intention of protecting himself in the case the [applicant] possessed a knife". Having made that finding, the sentencing judge then made three further factual findings about what occurred: first, the applicant grabbed the broom and there was a struggle between the applicant and Mr Browne as well as "wrestling on the ground" (J3); secondly, the applicant "retrieved a knife" from the pocket of his jumper, and Mr Browne let go of the applicant "and backed away from him"; thirdly, the applicant "approached" Mr Browne "and in a threatening way lunged a knife towards him and ran in an aggressive manner with the knife held in his outstretched hand" (J3). 2. The sentencing judge then described the interactions between the applicant and Mr Reay and the applicant fleeing from the premises through the hole in the wire fence, and into the nearby bush (see [12], above). The sentencing judge also described Mr Browne and Mr Reay finding the green shopping bag inside the storage area (see [13], above). It was at that point of the sentencing judgment that the sentencing judge made the following finding – that Mr Browne "noticed his own hooded jumper that he had been wearing had a large 13-centimetre slash mark across the front of it. The jumper was not damaged prior to the incident" (J4). 3. When assessing the objective gravity of the offending for offence two, it is clear that the sentencing judge's finding on this issue was informed by what the sentencing judge found was the applicant's intentional use of a knife to slash across Mr Browne's torso. The finding as to the objective seriousness of offence two was that it was (J11): … slightly below the mid-range. Here, preceding the actual offence, there was a fight with a broom handle, a struggle, and then the actual intentional use of a knife to slash across Mr Browne's torso and it is only by the slimmest of margins that the knife only cut his shirt and not his stomach. The sentencing hearing 1. The Crown tendered CCTV footage (exhibit C) and it was played during the course of the sentencing hearing. It was also played during the hearing in this Court. The entirety of the offending involving Mr Browne (offence two) was captured on that footage. Some of the key events as shown in that footage formed the basis of the agreed facts, specifically the agreed facts at [15]-[19] and [24]. Given the nature of the challenge, those agreed facts are here set out: 15. Troy Browne took hold of a nearby broom, and as the offender came out of the storage area, Troy Browne swung the broom in his direction. Troy Browne did this with the intention of protecting himself, in case the offender possessed a knife. 16. The offender grabbed the broom and a struggled [sic] ensued between the two men. 17. The offender and Troy Browne were 'wrestling' on the ground, and Troy Browne tried to restrain the offender and hold him down. 18. The offender retrieved a knife from the pocket of his jumper, and Troy Browne let go of the offender and backed away from him. 19. The offender approached Troy Browne, in a threatening way, lunging the knife towards him and running in an aggressive manner with the knife held in his outstretched hand. … 24. Troy Browne noticed his own hooded jumper that he had been wearing had a large 13cm slash mark across the front of it. The jumper was not damaged prior to the incident. 1. The factual findings of the sentencing judge were based upon these agreed facts, and were thus the primary facts from which the sentencing judge drew the inference that there was the actual intentional use of a knife to slash across Mr Browne's torso. Discussion and consideration 1. The applicant's essential submission was that the inference was not open to be drawn. Whilst the applicant accepted that he produced a knife and that offence two was committed, the applicant submitted that neither the agreed facts nor the CCTV footage supported the factual finding made: at best, the applicant argued that the evidence, including the agreed facts, established "no more than the production of the knife and damage to the jumper during the course of the melee" (applicant's submissions at [66]). 2. The Crown submitted that the challenged finding was open and capable of establishing the intent of the applicant beyond reasonable doubt (Crown submissions at [39]) and, separately as a "threshold point", argued that the finding could be understood in a narrower, more confined way, descriptive only of the intentional use of the knife, rather than a finding that the applicant used the knife with intent to slash across the torso of Mr Browne. 3. I will first deal with the Crown's second submission. In my view, contrary to what was submitted, it is not open to characterise the finding of the sentencing judge in the confined way the Crown argued simply because the finding is not expressed to be so limited; rather, the finding, by its terms, was that there was "actual intentional use of a knife to slash across Mr Browne's torso". 4. I return now to deal with the applicant's principal submission. There was no dispute as to the principles that apply to a challenge of this kind. The question is whether the challenged finding was open on the material before the Court: DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [131] ('DS'); Ocek v R [2023] NSWCCA 308 at [116]. 5. As it happens, the parties were not in substantive disagreement about the primary facts, merely about whether an inference was permissibly drawn about the applicant's intent based upon those facts. Although earlier set out, a summary of them, from the time the applicant was located in the storage area beneath the plunge pools, follows. 6. Initially, when the applicant was in the storage area, Mr Browne made verbal contact with the applicant, and the applicant responded, "I've got a knife", or words to that effect. 7. Thereafter, when the applicant exited the storage area, the critical interactions between the applicant and Mr Browne were these: the applicant and Mr Browne were wrestling and during the course of them doing so, the applicant removed the knife from the pocket of his jumper; Mr Browne let go of the applicant and "backed away"; the applicant "approached" Mr Browne "and in a threatening way lunged a knife towards him and ran in an aggressive manner with the knife held in his outstretched hand". 8. In relation to the lunging toward Mr Browne, it was accepted by the parties that there was no further contact between the applicant and Mr Browne, and this did not provide the occasion for the slash mark on Mr Browne's jumper. And, to be clear, the sentencing judge did not make a finding that it did. It necessarily follows, therefore, that the only time that there was an occasion to make the slash mark on Mr Browne's jumper was during the course of when Mr Browne and the applicant were wrestling, and after the applicant had removed (or was in the process of removing) the knife from his pocket. 9. In relation to the damage to Mr Browne's hooded jumper, the finding by the sentencing judge was that it had a "large 13-centimetre slash mark across the front of it". That finding, as earlier noted, was based upon the agreed fact expressed in identical terms (agreed facts at [24]). It is clear from other findings that the sentencing judge made that the slash mark was in fact a "cut" to Mr Browne's jumper – namely, that it was "only by the slimmest of margins that the knife only cut [Mr Browne's] shirt and not his stomach" (J11) and the further finding that the knife was "sharp enough to cut loose clothing when simply slashed" (J11). In this Court, the parties accepted that the "slash mark" was in fact a cut to the jumper. 10. It is apparent from this survey of the evidence that there was no direct evidence of, or agreed fact about, the applicant's intent. The challenged finding was therefore the result of an inference drawn from the agreed facts accepted by the sentencing judge. 11. In relation to the applicant's challenge to this inference, two matters inform the approach and thus warrant emphasis. First, the challenge to the inference drawn by the sentencing judge turns upon "whether there was some basis for the inference, that is the inference must have been reasonably open": DS at [131], citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356; [1990] HCA 33. Secondly, given the finding made by the sentencing judge about the applicant's intent was an issue that was adverse to the applicant, impacting as it did upon the sentencing judge's assessment of the objective gravity of the offending, a constraint on such a finding is that it must be arrived at beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]; Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 at [32] ('Strbak'). 12. In my view, it was not open to the sentencing judge to find beyond reasonable doubt that the applicant had the "actual" intent to use a knife to slash across Mr Browne's torso based simply upon the agreed facts. That is for the following reasons. First, it is relevant to emphasise that the applicant is not shown in the CCTV footage to engage in the actual use of the knife to slash Mr Browne. That this is so makes drawing the relevant inference problematic, in my view. That is not because as the event cannot be seen it cannot be inferred, but because it squarely raises whether there was the intentional use of the knife to slash across Mr Browne's torso – and, if so, how and precisely when that occurred. Secondly, it is, I consider, at least possible that the cut to Mr Browne's jumper occurred in some way during the process of the applicant seeking to retrieve the knife from his pocket, rather than the knife being removed and intentionally deployed against Mr Browne. That hypothesis is, in my view, consistent with the agreed position that the applicant is not shown, in the CCTV footage, engaging in the actual intentional use of a knife to slash across Mr Browne's torso. And, further, it is also consistent, in my view, with the duration of the wrestling as shown in the CCTV footage and, in particular, the exceedingly short timeframe – involving, at most, some few seconds – from when the applicant can be seen to be reaching into his pocket (whilst, in effect, being held on the ground) and Mr Browne (who at all times remained on his feet, when not kneeling on the applicant) stepping away and clear of the applicant. 13. For completeness, it should be noted that this conclusion is not at odds with the offence for which the applicant was convicted. Whilst a plea of guilty is a formal admission of each of the legal ingredients of the offence (Maxwell v The Queen (1996) 184 CLR 501, 510; [1996] HCA 46; Strbak at [32]), there is nothing in what has been admitted by the plea that presently assists. That is because the offence to which the applicant pleaded guilty under s 33B(1)(a) of the Crimes Act – namely, that the applicant "did use an offensive weapon with intent to commit the indictable offence of intimidation of" Mr Browne – contained no essential element that aligned with, or provided support for, the challenged finding made by the sentencing judge. 14. In my view, the reasonable doubt about how Mr Browne's jumper was slashed should be resolved in favour of the applicant. It follows that I would uphold ground 2 of the notice of appeal. Resentence Introduction 1. Given the conclusion that the sentencing discretion miscarried in connection with ground 2, it falls upon this Court to re-exercise the sentencing discretion and determine the sentence to impose. If, and only if, following that exercise, the Court is satisfied that a lesser sentence than that imposed by the sentencing judge should be imposed, then the appeal should be allowed: s 6(3) of the Criminal Appeal Act; Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43] ('Kentwell'). 2. Further, in relation to the re-exercise of the sentencing discretion, both the applicant and the Crown proceeded on the footing that this extended to exercising the sentencing discretion across all offences. That approach is consistent with what was said in Kentwell at [42], and as further explained in Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 at [67]-[87]. 3. For the purposes of resentence, the applicant relied upon affidavits from the applicant affirmed 8 May 2024 and from his solicitor, Michael Lantis, affirmed 8 May 2024. The Court received that evidence on the "usual basis" – that is, to show events that have occurred since the time of sentencing, and not to enable a new and different case to be run in the event that this Court resentenced the applicant: Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]; Ragg v R [2022] NSWCCA 150 at [56]. The applicant's ultimate submission was that, upon resentence, this Court would pass a lesser sentence. 4. The Crown's ultimate submission was that no lesser sentence was warranted, with the consequence that the appeal should be dismissed. The submission is to be understood as one whereby, following independent consideration of all sentencing factors upon resentence, that result should follow: Davis v R [2015] NSWCCA 90 at [80]-[84]. The further evidence read on the appeal 1. Before exercising the sentencing discretion, it is appropriate to address the further evidence read on the appeal. 2. The evidence from the applicant was that soon after he was sentenced, he was "placed" on the buprenorphine program (which may be accepted), but the evidence said nothing about how he had progressed whilst on that program nor his intention to remain on it whilst in custody or following his release. There was not, it should be noted, any records from Justice Health in evidence (nor any other evidence) dealing with this issue. 3. The evidence from the applicant was also that he had secured a settlement of his civil claim brought following "abuse" that he suffered whilst he was at a boys' home (which may be accepted). The applicant's evidence was that he was working whilst in custody and that, when released, he proposes to use the money from the settlement to buy two caravans in order to rent one out, and to live in the other. It was the applicant's belief that, because he would not be homeless, this would "keep [him] out of trouble". 4. I am prepared to accept and find that this evidence, and the fact that the applicant has been "placed" on the buprenorphine program, provides some basis to make a slightly more favourable finding about the applicant's prospects of rehabilitation than what the sentencing judge did. Nevertheless, in my view, those prospects remain only very slightly better than "poor". I have reached that conclusion essentially because, whilst the applicant's participation in the buprenorphine program is an objectively positive development, there is, as I have earlier noted, no other material that would permit any other meaningful finding to be made about the nature of the applicant's progress whilst on that program, nor his intention to remain on it. Furthermore, the psychiatric report tendered by the applicant at the sentencing hearing from Dr Justine Schelle (the content of which significantly informed the sentencing judge's findings about prospects of rehabilitation: J16), expressed considerable reservations about whether the applicant's drug use would be successfully treated. In this respect, the report noted that the applicant's "illicit substance misuse… continues whenever he is out of custody"; that the applicant was "clear" that the reason he has ceased using methamphetamines is because he is currently in custody "rather than that he would like to cease it"; that the applicant "mentioned several times during the appointment today how much he loves using drugs", leading Dr Schelle to express the belief that when the applicant "is no longer incarcerated he will soon relapse to using substances and is unlikely to actively participate in any treatment regarding this"; and that she held "concerns" that the applicant would only be compliant with drug therapy whilst in prison "where it is harder to obtain illicit substances and may cease this medication when he leaves jail when drugs are more available". The matters referred to by Dr Schelle significantly inform my finding. 5. The evidence from the applicant's solicitor annexed a letter from his solicitors (who represented him in his civil claim) dated 7 May 2024 that confirmed resolution of the applicant's claim for damages, as well as setting out their "instructions" in connection with his sexual abuse claim. The applicant's submissions did not seek any particular finding in relation to this evidence and, given the form of it, and the fact that the applicant himself did not give any evidence about what is recorded, I would not be prepared to act upon it, other than to accept that it confirms the settlement of the applicant's personal injury claim. Discussion and consideration: resentencing the applicant 1. At the outset, it is important to note that the applicant did not challenge any of the findings made by the sentencing judge (except the finding covered by ground 2), although the applicant sought to "clarify" the following matters in connection with two findings (T10.20). 2. First, in relation to the finding made that the aggravated break and enter offence involved actual or threatened use of violence, the applicant submitted that "the only basis" upon which that finding could be made was the applicant's statement that "I've got a knife", or words to that effect, such that the finding could only be supported on the basis that it was the threatened use of violence. That submission may be accepted, and the Crown did not submit to the contrary. 3. Secondly, the applicant referred to what was said by the sentencing judge at J5 – namely, the applicant "being armed with a knife and actually producing it directly in the course of the break and enter offence when interrupted" – and submitted that the sentencing judge did not make that finding when regard is had to the finding made by the sentencing judge at J9-10. The applicant submitted that the sentencing judge at J9-10 "appears to reject" the use of the knife as a matter of statutory aggravation under s 21A of the CSP Act. In my view, the initial passage that the applicant referred to in the sentencing judgment at J5 is not a finding, but rather a summary of what the Crown had submitted. That, I consider, to be apparent when regard is had to the preceding paragraph of the sentencing judgment, as well as the balance of the paragraph where the finding was suggested to have been made. 4. Nevertheless, the applicant's submission should be accepted. I will briefly explain why. The critical finding made by the sentencing judge at J9-10 was expressed as follows: The prosecution asks the Court to accept a number of facts in aggravation, based on the material tendered and the evidence called in the proceedings, which I have referred to, at Crown written submissions para 11. However, I do not accept that the beyond reasonable doubt with the weapon – that is, as it is already part of the circumstances of the offence, the aggravation is the knife… 1. As is evident, the finding made by the sentencing judge at J9-10 addressed a submission made by the Crown in their written submissions at paragraph 11. Relevantly, the Crown submission in that paragraph was directed to the aggravated break and enter offence and the submission put was that the offence involved the actual or threatened use of a weapon (s 21A(2)(c) of the CSP Act). The sentencing judge did not accept the submission, holding that the use of the weapon "is already part of the circumstances of the offence, the aggravation is the knife". That conclusion was plainly correct as the circumstance of aggravation for the break and enter offence was identified as being "armed with offensive weapon – knife" (agreed facts at [1]). For completeness, I would also add that the sentencing judge did not find that the use of a weapon was an aggravating factor with respect to the intimidation offences for essentially the same reason: the sentencing judge noted, given what was said in Sharpe v R [2006] NSWCCA 255, that it would be "impermissible to have additional regard to the threatened use of a weapon as an aggravating factor, given the threat to use an offensive weapon is an element of the offence under s 33B" (J9-10). 2. The applicant also sought a further finding from this Court, based upon the further evidence read on the appeal, in connection with the applicant's prospects of rehabilitation. I have addressed this issue, and made a finding about it, earlier in these reasons. 3. Subject to the above matters, and making a finding about the objective seriousness of offence two (which is addressed in what follows), the sentencing discretion proceeds on the basis of the findings made by the sentencing judge (see [16]ff, above), together with "any relevant evidence of the offender's post‑sentence conduct": DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]. Further, the sentencing discretion is exercised without regard to the sentences imposed by the sentencing judge: Turnbull v R [2019] NSWCCA 97 at [44]-[46]; RO v R [2019] NSWCCA 183 at [81]-[89]; AM v R [2024] NSWCCA 26 at [44]. 4. In exercising the sentencing discretion, I am required to be mindful of the legislative guidepost – being the maximum sentence for each offence (as earlier noted, there is no standard non-parole period or minimum penalty applicable for the offences) – and to identify all factors relevant to the sentencing task, consider their significance and then assess the appropriate sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] ('Markarian'); Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]-[27] ('Muldrock'). 5. In connection with these offences, the serious nature with which the offending must be adjudged is reflected in the maximum penalties, albeit that the maximum penalty is reserved for the worst category of cases or worst possible case constituting the offence: Markarian at [31]; Hurt v The King [2024] HCA 8; (2024) 98 ALJR 485 at [27]. 6. In terms of objective seriousness, the (unchallenged) findings were: in relation to offence one, the objective seriousness was "significantly below the mid-range", with the sentencing judge characterising the offence as "opportunistic offending by a homeless person who [was] carrying a knife at the time" (J10); and, in relation to offence three, the sentencing judge found that the objective seriousness was "significantly below the mid-range" albeit "still objectively serious" (J11). 7. In terms of the objective seriousness of offence two, the applicant did not make any submissions in this Court about that matter, presumably relying upon the submissions put below (the submission there made was that the offending was "below the mid-range": J8). The Crown submitted before the sentencing judge that the objective seriousness was "at or just above the middle of the range for offences of the kind". 8. Given there is a finding by the sentencing judge classifying the other intimidation offence (offence three), I propose to do likewise notwithstanding there is no standard non-parole period. Nevertheless, it should be emphasised that when assessing the objective gravity of offending, what is important is to fully identify the "facts, matters and circumstances" which bear on the assessment of the gravity of the crimes (Muldrock at [29]), rather than expressing "the conclusion reached by reference to a position within a range": FL v R [2020] NSWCCA 114 at [60]. I consider this to be objectively serious offending, given the applicant was detected by Mr Browne (and Mr Reay) stealing from the adjoining business. Mr Browne intervened to protect the property of the business, following which the applicant produced the offensive weapon, being a 4-to-5-inch blade with a black handle (agreed facts at [20]), to threaten and intimidate Mr Browne "lunging the knife towards him and running in an aggressive manner with the knife held in his outstretched hand" (agreed facts at [19]). That offending did not, however, result in the cut to Mr Browne's jumper, for the reasons previously noted (see [56], above) and based upon the CCTV footage, the lunge was a distance away from Mr Browne. Nevertheless, the sentencing judge found (a finding that was not challenged) that "the intended intimidation of the victims in the particular circumstances should be regarded as quite high with a high degree of fear inherently held by a victim in the circumstances" (J6). 9. For those reasons, I consider the objective seriousness of offence two to be slightly below the mid-range. 10. In relation to aggravating matters under s 21A of the CSP Act, the sentencing judge accepted that the offending was aggravated by reason of the applicant having a record of previous convictions (s 21A(2)(d)) and, for the aggravated break and enter offence, that the offence involved the actual or threatened use of violence (s 21A(2)(b)): see [20] and [73], above. 11. The sentencing judge noted that the applicant entered pleas of guilty in the Local Court on 9 December 2022, entitling the applicant to receive, pursuant to s 25D(2)(a) of the CSP Act, the sentencing discount of 25 percent (J13). The sentencing judge also noted that the offending was not part of a planned or organised criminal activity (s 21A(3)(b)) (J10). 12. The findings of the sentencing judge in connection with subjective matters have been earlier set out: see [23]ff. 13. Some matters, the subject of findings by the sentencing judge, warrant emphasis for the purposes of resentencing. First, the sentencing judge found that the applicant "experienced social disadvantage when he was exposed to substance abuse and lack of support at a young age" and was subjected to sexual abuse he suffered at a boys' home, with the consequence that weight should be given to the effect the applicant's disadvantaged background had, and continues to have, on him (J11-12). Further, in this respect, the sentencing judge accepted that these matters mitigated the applicant's moral culpability (J12). That approach is, as the sentencing judge recognised, consistent with the analysis in Bugmy at [40] and [44]. Secondly, without wishing to diminish in any way the very real and significant impact the offending had upon, in particular, Mr Browne, the offending occurred over a very brief period of time, and the sentencing judge found it to be opportunistic offending by a homeless person with "limited evidence of planning". Thirdly, the sentencing judge's finding that specific and general deterrence were matters of some significance principally turned upon the finding, in relation to the intimidation offences, that there was actual intentional use of a knife (the finding of the sentencing judge at J16 was broadly expressed, and not confined simply to the offending involving Mr Browne). That finding underpinned, and significantly informed, the length of the sentence for the intimidation offence involving Mr Browne – a sentence that was appreciably in excess of the others pronounced. Given that I have concluded that that finding was not open, I consider that these matters should be given less prominence, in the circumstances of this case. 14. The sentencing judge noted that it was "agreed on any view", that the "threshold" in s 5(1) of the CSP Act had been "crossed" (J17), and I accept and find that it has. I have also considered, and had regard to, the purposes of sentencing: s 3A of the CSP Act. 15. I have considered each of the comparative cases put before the sentencing judge – namely, Dean v R [2020] NSWCCA 317, R v Zerafa [2021] NSWDC 547 (and, in addition, the decision on appeal: Zerafa v R [2023] NSWCCA 109), R v Tisserand [2021] NSWDC 543 and R v Daldy-Rowe [2019] NSWDC 899 – but have found them of limited assistance for sentencing purposes. The sentencing outcomes in those cases reflect very different circumstances, and findings, to the present one. I have also had regard to the sentencing statistics referred to by the sentencing judge but, given the limited information that accompanies those statistics, I have not found them to provide any significant assistance: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Moodie v The Queen [2020] NSWCCA 160; (2020) 284 A Crim R 87 at [88]-[89]. Neither the applicant, nor the Crown, placed any emphasis upon this material in this Court. 16. In relation to offence one, which carries a maximum penalty of 14 years imprisonment, although the findings of the sentencing judge included that the offending was opportunistic, and the objective gravity assessed as "significantly below the mid-range", those findings should not downplay the seriousness of this offending given it involved the applicant being armed with a knife (and threatening to use it) and the commission of the offence at a time when it was a possibility that people would be present at the premises. I consider general and specific deterrence to be important considerations for this offending. 17. In relation to offences two and three, which carry a maximum penalty of 12 years imprisonment, although the finding of the sentencing judge in relation to the offence involving Mr Reay was that the objective gravity of the offending was "significantly below the mid-range" albeit "still objectively serious" and the finding that I have made in relation to the offence involving Mr Browne was that the objective gravity of the offending was objectively serious offending that was "slightly below the mid-range", it is also important to emphasise the finding of the sentencing judge that "the intended intimidation of the victims in the particular circumstances should be regarded as quite high with a high degree of fear inherently held by a victim in the circumstances" (J6). That finding was no doubt significantly informed by the agreed facts (and corresponding finding) that concisely distilled the critical part of the offending. Thus, in relation to Mr Browne, the applicant approached Mr Browne "in a threatening way, lunging the knife towards him and running in an aggressive manner with the knife held in his outstretched hand" (agreed facts at [19]) and, in relation to Mr Reay, after Mr Reay commenced to chase the applicant, the applicant "turned and swiped the knife toward him" (agreed facts at [21]). I regard, however, the offending involving Mr Browne to warrant a sterner sentence than the offending involving Mr Reay. I also consider general and specific deterrence to be important considerations for this offending. 18. I would indicate the following sentences (adopting the same descriptions as those used in the sentencing judgment): 1. offence one (aggravated break and enter with intent): 3 years, less 25% = 2 years and 3 months. 2. offence two (use offensive weapon with intent to intimidate Mr Browne): 2 years, less 25% = 1 year and 6 months. 3. offence three (use offensive weapon with intent to intimidate Mr Reay): 1 year and 8 months, less 25% = 1 year and 3 months. 1. The Crown submitted, and the applicant conceded below, that there should be a level of accumulation. Given it is appropriate to impose an aggregate sentence (s 53A of the CSP Act), the general law principles about accumulation and concurrency do not apply, but the sentencing court is required to assess whether the aggregate sentence reflects the totality of criminality in all of the offending: Vaughan v R [2020] NSWCCA 3 at [91] and [117]; Aryal v R [2021] NSWCCA 2 at [46]; XY (A Pseudonym) v R [2023] NSWCCA 50 at [50]. In my view, applying the principle of totality, regard must be had to the fact that the offending may, generally, be considered to reflect a single course of conduct in the sense that everything happened in the course of the break and enter. There remains, nevertheless, discrete and distinct acts within the offending for the intimidation offences that could not be considered part of that criminality, and a need for a degree of accumulation to reflect this. 2. Applying the principle of totality in relation to the discounted individual sentences, I propose an aggregate sentence of 3 years and 6 months, with a non-parole period of 2 years and 3 months. There is a slight adjustment to the finding of special circumstances made by the sentencing judge, so as to achieve a practical result. Orders 1. For the above reasons, I propose the following orders: 1. Grant leave to the applicant to appeal against the sentence imposed on 23 February 2023. 2. Allow the appeal. 3. The sentence imposed on 23 February 2023 is quashed and in lieu thereof impose an aggregate sentence of imprisonment for 3 years and 6 months, with a non-parole period of 2 years and 3 months commencing 22 April 2022. The applicant will become eligible to be released on parole on 21 July 2024. The sentence will expire on 21 October 2025. ********** Amendments 31 July 2024 - Format change to coversheet 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: 31 July 2024