Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gibson v Regina [2019] NSWCCA 221 Hearing dates: 21 June 2019 Date of orders: 18 September 2019 Decision date: 18 September 2019 Before: Bathurst CJ at [1] Beech-Jones J at [7] N Adams J at [8] Decision: (1) Grant leave to appeal. (2) Dismiss the appeal. Catchwords: CRIME — appeals — appeal against sentence — application for leave to appeal — firearms offences — assault — cultivate prohibited plant — whether sentencing discretion miscarried — assessment of prospects of rehabilitation — assessment of prospects of reoffending — weight given to applicant's psychological treatment in custody — whether sentence manifestly excessive Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13 Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A, s 21A, s 53A Criminal Appeal Act 1912 (NSW), s 5(1)(b) Drug Misuse and Trafficking Act 1985 (NSW), s 23(1) Explosives Act 2003 (NSW), s 6(1) Firearms Act 1996 (NSW), s 36, s 39(1), s 51D, 64(1) Cases Cited: Clarke v R [2015] NSWCCA 232 Hampton v R [2014] NSWCCA 131 Hordern v R [2019] NSWCCA 138 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Knight v R [2015] NSWCCA 222 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] R v Barker [2009] NSWCCA 225 R v Elyard [2006] NSWCCA 43 R v Lachlan [2015] NSWCCA 178 R v O'Donoghue (1988) 34 A Crim R 397 R v Qutami 127 (2001) A Crim R 369; [2001] NSWCCA 353 Zuffo v R [2017] NSWCCA 187 Category: Principal judgment Parties: Cody Christopher Gibson (Applicant) Regina (Respondent) Representation: Counsel: R Mathur (Applicant) G Newton (Respondent) Solicitors: David Davidge Solicitor (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2018/28432 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Date of Decision: 01 August 2018 Before: Lakatos SC DCJ File Number(s): 2018/28432 Judgment 1. BATHURST CJ: I have had the advantage of reading the judgment of N Adams J in draft. I agree with the orders she proposes and with her Honour's reasons. 2. As N Adams J has pointed out at [61] below, it is unnecessary in the present case to determine whether the majority of the court in Hordern v R [2019] NSWCCA 138 ('Hordern') was correct in concluding that the "constrained approach" in sentencing appeals derived from the decision of Hunt J in R v O'Donoghue (1988) 33 A Crim R 397 was "clearly wrong" and should not be followed. The so called "constrained approach" limits the Court's power to review factual findings made by the sentencing judge to findings which the Court concluded were "not open" to be made. 3. I agree with her Honour that it is unnecessary to determine this issue particularly when (as was the position in Hordern) the point was not argued on appeal. However, I would make the following tentative comments. 4. In Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 ('Kentwell') the plurality pointed out at [35] that notwithstanding the apparent width of s 6(3) of the Criminal Appeal Act 1912 (NSW), "it was settled at an early stage that the appellate court's authority to intervene is dependent upon demonstration of error". The plurality went on to make the following remarks at [35]: "The significance to the function of the appellate court of the distinction between specific error, of any of the kinds identified in House v R, and the conclusion of manifest excess or inadequacy is explained by Hayne J in AB v R. In the case of specific error, the appellate court's power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence." (see also, Lacey v The Queen (2011) 242 CLR 573; [2011] HCA 10 at [10]-[11].) 1. In the present case, Grounds 1 and 2 of the Grounds of Appeal relate to assessments made by the sentencing judge in respect of which there is not necessarily a binary outcome. If the decision in Hordern results in the conclusion that the Court is entitled to, if not bound to, substitute its own assessment of such matters for the conclusion reached by the sentencing judge, even if the latter conclusion was open, it would seem to me that approach is contrary to what was said in Kentwell and the authorities cited in the passage from that judgment to which I have referred. 2. However, it is not necessary to pursue this matter further. 3. BEECH-JONES J: I agree with N Adams J. 4. N ADAMS J: Background 1. Cody Christopher Gibson seeks leave, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), to appeal against the aggregate sentence imposed upon him pursuant to s53A of the Crimes (Sentencing Procedure) Act (NSW) ("the Sentencing Act") on 1 August 2018 by his Honour Judge Lakatos SC in the District Court at Griffith. The applicant was sentenced to an aggregate non-parole period of 1 year and 10 months imprisonment and a balance of term of 1 year and 2 months imprisonment in relation to nine separate offences all arising out of the one incident in Hillston on 26 January 2018. The following indicative sentences were provided: 1. Possess loaded firearm so as to endanger life, contrary to s 93G(1)(a)(ii) of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 10 years imprisonment. The indicative sentence that his Honour imposed was 2 years and 9 months. 2. Common assault, contrary to s 61 of the Crimes Act, which carries a maximum penalty of 9 years imprisonment. His Honour imposed an indicative sentence of 6 months for this offence. 3. Assault occasioning actual bodily harm, contrary to s 59 the Crimes Act which carries a maximum penalty of 5 years imprisonment. His Honour imposed an indicative sentence of 15 months imprisonment for this offence. 4. Intimidation, contrary to s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which carries a maximum penalty of 5 years imprisonment and/or a fine of 50 penalty units. His Honour imposed an indicative sentence of 15 months for this offence. 5. Not keep firearm safely, contrary to s 39(1) of the Firearms Act 1996 (NSW), which carries a maximum penalty of 12 months imprisonment and/or a fine of 20 penalty units. His Honour imposed an indicative sentence of 6 months imprisonment for this offence. 6. Possess unregistered firearm, contrary to s 36 of the Firearms Act, which carries a maximum penalty of 5 years imprisonment. His Honour imposed an indicative sentence of 6 months imprisonment for this offence. 7. Cultivate prohibited plant, contrary to s 23(1) of the Drug Misuse and Trafficking Act 1985 (NSW), which carries a maximum penalty of ten years imprisonment and/or a fine of 2000 penalty units. His Honour imposed an indicative sentence of 12 months imprisonment for this offence. 8. Handle firearm when under influence of alcohol, contrary to a 64(1) of the Firearms Act, which carries a maximum penalty of 5 years imprisonment. His Honour imposed an indicative sentence of 18 months imprisonment for this offence. 9. Handle explosives/precursor without authorised licence, contrary to s 6(1) of the Explosives Act 2003 (NSW), which carries a maximum penalty of 12 months imprisonment and/or 250 penalty units. This was taken into account when his Honour imposed the indicative sentence for the offence under 23(1) of the Drug Misuse and Trafficking Act 1985 (NSW). 1. A certificate was also issued under s 166 of the Criminal Procedure Act 1986 (NSW) in relation to the offences of possesses ammunition and possess prohibited drug. His Honour convicted the applicant without further penalty pursuant to s 10A of the Sentencing Act. 2. The applicant advanced four grounds of appeal: Ground 1: His Honour's discretion miscarried in his assessment of the applicant's prospects of rehabilitation. Ground 2: His Honour's discretion miscarried in his assessment of the applicant's risk of reoffending. Ground 3: His Honour conflated the risk of reoffending with the danger to the community if there was reoffending. Ground 4: The aggregate sentence imposed is manifestly excessive. Agreed facts 1. The applicant was sentenced based on agreed facts which can be summarised as follows. 2. As at January 2018, the applicant shared a house with his girlfriend, Danielle Vella, at Hillston. He was 28 years of age with no criminal record. On 26 January 2018, he and Ms Vella hosted an Australia Day party at their house. At approximately 10am they both commenced to consume alcohol. The offender had consumed at least seven beers by 11am and continued at a similar pace throughout the rest of the day and evening. 3. At around 7pm, the applicant left the house and had a conversation with a guest. Upon his return he appeared to be "extremely angry" about a door being left open. He yelled at his guests "if you don't keep the door closed, you can fucking leave." He then walked to his bedroom and Ms Vella followed him. The two of them commenced to argue. The applicant took hold of an unregistered Rifke bolt action rifle which was on the bed in a carry bag. Ms Vella called out to the other guests and one of them came into the bedroom. This guest saw Ms Vella sitting on the floor and the applicant holding the firearm with both hands. The barrel was pointed towards the ceiling. The applicant was extremely intoxicated at that time. 4. Ms Vella yelled "call the cops" and attempted to take the rifle from the applicant. As a result of that struggle the applicant pushed her to the ground with the firearm. She received bruises. Whilst she was on the ground the applicant removed unsecured ammunition from the bookshelf and loaded the firearm. 5. When he was loading the rifle, the applicant said to Ms Vella "I'm going to kill you and me". He was pointing the firearm towards her at this time. After he finished loading it, he placed it under his chin and had it pointed at the victim. Ms Vella was extremely frightened and called out to a friend "he's got a gun". When the friend said to the applicant "Cody, what are you doing?", the applicant pointed the firearm in the direction of that guest. Another guest, who had heard that the applicant had a gun, walked to the bedroom and grabbed Ms Vella and the other guests to get them out of the room. Ms Vella crawled out of the bedroom. The applicant then pointed the firearm towards the doorway at these guests. 6. The guests moved away from the doorway fearing for their safety. Ms Vella asked the applicant for the rifle. He discharged a live round inside the rifle and then handed it to her. Ms Vella gave the rifle to another witness, who removed the remaining ammunition. 7. Ms Vella then returned to the bedroom to "calm" the offender. He approached her with a tomahawk and began to swing the tomahawk towards her. As a result of this she received a small laceration to her finger causing it to bleed. 8. The applicant then walked to the bathroom where he took off his clothes and began self-harming with a razor blade. When a witness attempted to intervene, the applicant ran from the house. 9. When police visited the property the next day, they found eight cannabis plants growing under a "Grow Tent" with two lights and a water filtration system. They also found a number of unknown substances as well as handwritten notes on how to make explosives. Specialist police from, inter alia, the Bomb Disposal Unit, attended the premises on 28 January 2019. The commercial grade chemicals located by police were found to be Pentaerthritol, Aluminium Powder, Nitric Acid and Citric Acid. Potassium Nitrate, Ethanol and Plaster of Paris were also located along with scientific glassware. The police also found one kilogram of loose-leaf cannabis in the applicant's bedroom. Proceedings on sentence 1. A Pre-sentence Report was prepared by Ms Stefanie Cheney on 17 July 2018. She set out her sources of information as being, inter alia, interviews with the applicant, his mother, a friend, an employer, Justice Health NSW, the Junee Correctional Centre Psychologist, Junee Correctional Centre custodial staff and Corrective Services NSW records. 2. Ms Cheney set out the applicant's family history. He had had no contact with his biological father and was raised by his mother. He has a half-brother with whom he has fluctuating contact. Although his relationship with his mother was one of conflict in his "formative years", due to her daily consumption of alcohol and his behaviour, he now reports a supportive relationship with her. Ms Cheney then stated: "Mr Gibson reported a tendency to involve himself in passive activities. Although he detailed having both prosocial and antisocial companions, he disclosed his preference of spending time by himself. Mr Gibson described having a limited support network outside of his mother's provision." 1. The applicant's schooling was described as being disrupted by multiple suspensions. He had been diagnosed with Attention-deficit Hyperactivity Disorder ("ADHD"). His employment history was varied but constant. Prior to the index offence he had been a wildlife control officer. 2. The applicant had commenced abusing substances at 15 years of age, mainly cannabis and alcohol. He stated that in the previous 12 months his consumption of alcohol had "significantly decreased to one evening per week" and cannabis use was only once every one to two weeks. 3. Despite the cannabis plants growing at his premises (and the kilogram of cannabis leaf found there), the applicant told Ms Cheney that he had not used cannabis for a number of days prior to the incident. He told Ms Cheney that he had the cannabis plants growing because he liked "seeing the growth of the plant and its shape, when the lights in the window hit it". 4. The applicant disclosed no prior diagnosis of mental health although told Ms Cheney that he intended to harm himself during the index offence. The report goes on: "Contact with Junee Correctional Centre psychologist described a presentation of 'dulled emotionality' and a lack of insight into the impact of his behaviour, when discussing the index offence with Mr Gibson. Despite this, contact indicated that Mr Gibson shows no sign of distress, whilst on medication in custody. The psychologist indicated that a full mental health assessment would be beneficial to determine a diagnosis and an appropriate treatment strategy for Mr Gibson. NSW Justice Health confirmed that Mr Gibson is currently receiving medication whilst in custody, with a satisfactory presentation and level of compliance. Mr Gibson reported an improved health status since the commencement of medication." 1. Under the heading "Violence", Ms Cheney stated the following: "Despite Mr Gibson having no prior aggression related history, he revealed a pattern of passive leisure activities that dictated a propensity for explosives and firearm interests. Mr Gibson reported that he had never intended to harm anyone in regards to his leisure interests, and verbalised the enjoyment he gains from his engagement with them as, 'just a bit of fun'. It is of significant concern that Mr Gibson has demonstrated limited insight into his aggression related behaviour at the time of the offence; of particular relevance to the level of increased violent behaviour, subsequent to intoxicating levels of alcohol." 1. Under the heading "Attitude to offending", Ms Cheney stated the following: "Mr Gibson reported his partial agreement with the account of the offence, as detailed in the Police Fact sheets. Whilst he agreed with the handling of firearm within the offence, he denied certain aspects of his offending behaviour, particularly in relation to the physical harm imposed upon the victim. He proposed his handling of a weapon in an attempt to intimidate the victim, and end the conflict. He refuted any intentional physical harm against the victim, having proposed that she had fallen during a struggle, and further denied the use of a weapon against her." 1. Ms Cheney went on to report that in addition to his intoxicating levels of alcohol abuse, the applicant considered the relationship with Ms Vella to be a contributing factor to his conduct on the day. He explained that he had built up an idea of a "perfect relationship" but "reality had set in, and he had a 'hollow, bad feeling' towards it". 2. Ms Cheney went on to state: "Mr Gibson demonstrated limited consideration of the impact of his actions upon his victim, and those present at the time of the offence; evident by a disparaging remark made in regards to the actions of those, after the offence. Through continued exploratory discussion of the victim and those involved, Mr Gibson deduced that 'they would have been pretty shaken up'. Mr Gibson proposed his belief that he had no criminogenic needs to address in relation to his offending behaviour. He initially demonstrated an unwillingness to engage in strategies such as behaviour intervention programs and Community Service work. Further consultation with Mr Gibson, ensued a shift in motivation, with his verbalisation of commitment to engaging in such activities, if found suitable." 1. Ms Cheney's conclusion as to the applicant's risk of reoffending was stated as follows: "Mr Gibson presents as a medium risk of reoffending, subsequent of no prior criminal history and his relatively stable lifestyle prior to the offence. Despite this, a significant lack of contrition was evident throughout discussion with Mr Gibson, with particular note to his failure to comprehend the impact of his offending behaviour upon the victim, and those present during the offence." 1. A number of documents from Justice Health NSW were also tendered. 2. The applicant relied upon a report prepared by Patrick Sheehan, Forensic Psychologist, dated 19 July 2018. Mr Sheehan described the applicant's family and employment history in similar terms to Ms Cheney. Under the heading "Social and Intimate Relationships", Mr Sheehan stated: "His primary social activities have related to the use of substances with peers. However he does have one close friend who has visited him in custody. Mr Gibson reported recreational interests in dirt-bike riding, shooting and fishing. During his early twenties he was interested in explosives, creating his own explosive devices and detonating them in isolated locations for entertainment. He said that he had lost interest in this activity in his later twenties, but had not discarded the precursor materials." 1. Under the heading "Substance Abuse", Mr Sheehan set out the applicant's history of alcohol abuse. The applicant stated that he started using large quantities of amphetamines when he resided in Western Australia as well as large quantities of MDMA on weekends. He told Mr Sheehan that he "enjoyed the flat feeling of having no emotion that occurred when drug affected". After he was 22 years of age he went through a period of minimal substance use then began drinking again when he was 25 years of age. Although this was with less frequency, he fell back into a pattern of consuming "over 30 drinks over a single night and having a poor memory". He stated that his frequency of drinking continues to drop. 2. It was noted that the applicant has never been admitted to a psychiatric hospital. As for his depression, the applicant described experiencing periods of low mood and a struggle to get out of bed in the morning. Mr Sheehan reported: "There is a long history of self-harm type behaviours through head-butting objects or burning his arms with cigarettes as a display of bravado with peers. There is a long history of recurrent suicidal ideation and he has a well-developed plan to suicide through nitrogen asphyxiation. This has never progressed to clear intent but on the day of the current offences Mr Gibson did attempt to cut his carotid artery with a razor, requiring seven stitches." 1. Mr Sheehan noted that the applicant had "never sought assistance for his depressed mood". It was noted that he was on antidepressant medication in custody. Mr Sheehan diagnosed relapsing Major Depressive Disorder with a differential diagnosis of Persistent Depressive Disorder. He also diagnosed a substance use disorder which "contributed substantially to the poor decision-making associated with his current offence". His primary diagnosis was Alcohol Use Disorder (Moderate, in early remission in a controlled environment) and Cannabis Use (Moderate in early remission in a controlled environment) as well as Stimulant Used Disorder – amphetamine-type substance (Mild, in enduring remission). He also described a personality disorder. 2. Mr Sheehan's conclusion was that: "Mr Gibson acknowledges his offences and does not attempt to justify his behaviour as reasonable. However, his insight is restricted. He will require assistance to re-evaluate his approach to living and formulate a satisfactory plan for how to structure his life in a way that offsets any risk of reoffending. There are no correctional programs that directly address Mr Gibson's specified treatment needs, but the EQUIPS suite of programs for addictions and aggression would be of assistance to him. Whilst his mood remains depressed and his attitude pessimistic, his ability to respond positively to programs is impaired. I would recommend preliminary engagement with a correctional psychologist to increase his readiness for programs, addressing mood and motivation." Remarks on sentence 1. After setting out the agreed facts, Judge Lakatos SC noted that the applicant had no previous criminal history. His Honour then referred to the evidence of Ms Cheney in some detail. As part of that his Honour noted the following: "The offender is currently receiving medication in custody and reports improvement. There is no prior history of violence but Ms Chainey [sic] notes something which appears self-evident. She says it reveals a pattern of passive leisure activities dictated by a propensity for explosives and firearms. Certainly there has been no instance of violence prior to this time but, if the degree of intoxication and mental unbalance which exhibited itself in January of this year was to recur and the offender was in contact with explosives and/or firearms, one does not need to be too clever to work out there could be serious harm or damage to persons." (Emphasis added.) 1. His Honour went on to refer to other aspects of Ms Cheney's report including her concerns that the applicant had demonstrated limited insight into his aggression-related behaviour at the time of the offences. His Honour concluded his remarks concerning Ms Cheney's report as follows: "Finally, the offender proposed that he believed he had no criminogenic needs and initially demonstrated an unwillingness to engage in intervention programs but has subsequently changed his position. That change of position is certainly necessary, in my mind. In conclusion, Ms Chainey [sic] said that there is a medium risk of offending. She thought at the time that he exhibited a significant lack of contrition and failed to comprehend the impact of his offending. However, on the other side of the balance, Mr Chainey [sic] said that there were these prosocial factors: the offender had accommodation and employment and family support. However, she thought, on balance, his commitment to change was questionable." 1. His Honour went on to consider the report of Mr Sheehan. After describing his early years and employment his Honour noted this: "In terms of his social relationships, in essence, Mr Sheehan noted that he had a history in explosives and explosive devices and that generally he had a pervasive pattern of distrust and social discomfort in the company of others. In short, it seems he could be properly described as somewhat of a loner." 1. His Honour went on to refer to aspects of Mr Sheehan's report stated: "He has never participated in any form of alcohol and drug intervention and has little insight into his substance abuse. Mr Sheehan considers that he would benefit from counselling. I put it more strongly. In my view, he desperately needs counselling to make sure these sorts of events do not occur." (Emphasis added.) 1. His Honour went on to summarise other aspects of Mr Sheehan's report and stated: "He has never sought assistance for his depressed mood and is currently using prescribed antidepressants in custody." (Emphasis added.) 1. His Honour then noted the following: "In terms of the offence, his report to Mr Sheehan is largely consistent: heavily intoxicated, remembers drinking 24 beers, remembers arguing, picking up the gun, pointing it at his partner and others, pushing her over, picking up the tomahawk and waving it around. He does not remember some of the details. He said that he remembered being highly agitated, distressed and wanting to die. He could not recall why he took his clothes off and felt shocked by what had occurred. He did not defend his behaviour and expressed an appreciation of how easily his behaviour could have resulted in severe casualties." 1. His Honour then extracted the following portion of Mr Sheehan's report: "[F]or a psychologically unstable person with recurrent suicidal ideation and anger problems, the decision to drink recklessly and have unsecured firearms and explosive precursors in the home reveals the extent of his poor judgement." 1. Turning to the submissions made on the applicant's behalf, his Honour noted that the Justice Health notes record that the applicant was experiencing severe levels of distress on admission. He referred to the applicant's evidence and his account of the offending behaviour. In particular, that he had no intention to harm others with the firearm, only himself. 2. His Honour then turned to consider aggravating and mitigating circumstances in s 21A of the Sentencing Act which are not necessary to recount. His Honour then stated the following: "I move past for a moment the likelihood of reoffending and rehabilitation. It seems clear to me, as Ms Lewer [counsel for the applicant] argued on his behalf, that much of what occurred here was caused by, number 1, his mental instability and, number 2, the excessive intake of alcohol. If those matters are not addressed then his likelihood of reoffending remains high. If those matters are addressed with some success then the likelihood of reoffending may be reduced as is his prospects of rehabilitation. As one might say, those matters are in the lap of the gods and really, to some extent, it depends upon whether this offender in custody will try and seek out help and if it is given to him will be assisted by it and accept it. So I put to one side the issue of reoffending and rehabilitation." (Emphasis added.) 1. As for the most serious offences his Honour stated the following: "It is certainly true that the potential for serious injury and death to others, as well as to the offender, was very high but, in my mind, one cannot divorce those very serious matters from the mental health state of this individual at the time he committed the acts. Had it been a person who was otherwise normal, rational and unaffected by mental health issues, the objective gravity would be in the area that the Crown has pitched it and I would agree entirely. In my mind, that is not the case." 1. His Honour also referred to the decision in R v Barker [2009] NSWCCA 225 before going on to impose the aggregate sentence set out above at [4]. Applicant's submissions 1. In relation to Ground 1, the applicant submitted that his Honour overlooked or misunderstood the mental health treatment that he had received in custody and that his Honour erred when he stated that the applicant had "never sought assistance for his depressed mood but is currently using prescribed antidepressants in custody". It was submitted that the applicant's treatment extended beyond antidepressants to counselling, which his Honour did not refer to in his remarks. In light of this, it was submitted, his Honour failed to acknowledge and give proper weight to the "important steps" the applicant had taken in custody. This caused his Honour's sentencing discretion to miscarry. 2. As for Ground 2, the applicant submitted that his Honour incorrectly rejected the submission that the applicant's offences were "a blip on the radar". His Honour commented that it would be a "courageous move" to classify the offending in this way as multiple offences were involved and they involved a significant degree of dangerousness. The applicant submitted that he had no prior criminal history and that his Honour conflated the seriousness of the potential harm of any reoffending with the risk of reoffending. Whether or not the applicant had a "propensity for explosives", it was submitted, was largely irrelevant to whether he reoffended in the same way. 3. Similarly, in relation to Ground 3, the applicant submitted that his Honour fell into error when he stated that the offending revealed "not only the extent of [the applicant's] poor judgment but it obviously reveals a significant potential danger if that situation were to recur". The applicant again submitted under this ground that these comments indicate that his Honour conflated the potential danger of reoffending with the likelihood of the applicant reoffending. 4. As to Ground 4, the applicant conceded that no alternative to full-time imprisonment was appropriate but that the indicative sentence for the first offence was excessive. In this respect, the applicant relied on R v Barker [2009] NSWSC 225, which, he argued, involved facts that were "more objectively serious" than his case. In Barker, the offender assaulted the victim (his wife) with a plastic pipe and shotgun, pointed a shotgun at the victim and tied her up. Although the Crown appeal was dismissed, McClellan CJ at CL noted that an appropriate sentence would have been 4 years with a non-parole period of 2 years. In that context, the applicant submitted that his sentence was manifestly excessive. The Crown's submissions 1. The Crown submitted that the sentencing judge carried out his task as appropriate to the circumstances before him. 2. In relation to Grounds 1, 2 and 3, the Crown noted that his Honour had referred to Ms Cheney's report which noted that the applicant had been in contact with a psychologist while in custody. It was submitted that his Honour correctly found that the applicant's prospects of rehabilitation were contingent on any future steps that he took to address his offending. It was submitted that his Honour correctly considered that the applicant's rehabilitation prospects were linked to his likelihood of reoffending. The Crown submitted that the applicant's "propensity for explosives" was entirely relevant to his chances of reoffending. 3. As for Ground 4, the Crown submitted that the indicative sentences imposed by his Honour were within the range of proper sentencing discretion. It was further noted that even where indicative sentences could be found to be excessive, it does not follow that an aggregate sentence is excessive. The limited nature of the information accompanying Judicial Commission statistics meant that they were of little utility in determining whether the indicative sentence for the first offence was excessive. Such statistics also offered no indication about whether the aggregate sentence was excessive. In relation to Barker, the Crown submitted that although the facts in that case were more serious, the offender in this case faced significantly more charges (this was noted by his Honour in his remarks on sentence). Consideration 1. The first three grounds of appeal specify patent errors apparent from the sentencing judge's reasons concerning his evaluative findings with respect to the applicant's prospects of rehabilitation and risk of reoffending, whereas Ground 4 alleges latent error. Ground 1 concerns the applicant's prospects of rehabilitation and Grounds 2 and 3 concern the sentencing judge's findings on the applicant's risk of reoffending. It is to be accepted that questions of whether an offender is unlikely to reoffend (s 21A(3)(g) of the Sentencing Act) and whether the offender has good prospects of rehabilitation (s 21A(3)(h) of the Sentencing Act) are distinct matters, yet they share much in common. As Price J observed in Zuffo v R [2017] NSWCCA 187 at [48], an "assessment that an offender is unlikely to reoffend is commonly linked to a favourable finding that the offender has good prospects of rehabilitation". 2. In relation to all four grounds, the applicant must establish that the sentencing judge has made an error in the exercise of his discretion: House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505. As the High Court observed in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 ("Kentwell") at [35], after noting the terms of 6(3) of the Criminal Appeal Act, the authority of an appellate court, such as this court, to intervene is dependent upon demonstration of error. The Court went on to state at [42] (footnotes omitted): "When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit." 1. In this passage in Kentwell, the High Court restated the types of patent error set out in House v The King which must be established in order for this court to interfere with the sentence. That is, the applicant must establish that the sentencing judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect the determination, mistook the facts or did not take into account some material consideration. Although these principles are fundamental, I have restated them here for the purposes of identifying the alleged errors relied upon in Grounds 1-3. The first two grounds of appeal were that "his Honour's discretion miscarried in his assessment of" both the applicant's prospects of rehabilitation (Ground 1) and risk of reoffending (Ground 2). Ground 3 contends that the sentencing judge conflated the risk of reoffending with the danger to the community if there was reoffending. 2. The applicant's written submissions in relation to Ground 1 assert that the sentencing judge failed to acknowledge and give proper weight to the "important steps" the applicant had taken in custody to address his mental health and this caused the sentencing discretion to miscarry. During the hearing of the appeal, counsel for the applicant accepted that in relation to Ground 1 the error was, in effect, that it was not open to the sentencing judge to make the relevant finding in relation to rehabilitation. This formulation derives from the decision of Hunt J in R v O'Donoghue (1988) 34 A Crim R 397, where his Honour framed the test in this way: "It is important to emphasise that, unlike appeals to the Court of Appeal in civil cases, an appeal to this Court is not by way of rehearing. An appeal which is not by way of rehearing is no more than the right to have a superior court interpose to redress the error of the court below …. Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. … It is only where the very narrow basis upon which this Court can intervene in relation to a trial judge's findings of fact has been established that the conviction can be set aside, and then only if the error has led to a miscarriage of justice … Kryiakou (1987) 29 A Crim R 50 at 60-61." 1. As Basten JA has pointed out in the decisions of Clarke v R [2015] NSWCCA 232 and more recently in Hordern v R [2019] NSWCCA 138, Hunt J did not make these observations in the context of an application to seek leave appeal a sentence. Rather, his judgment concerned an appeal against conviction in which the appellant sought to challenge a factual finding by the trial judge on a voir dire. Despite this, this court had proceeded since then on the basis that if an applicant challenges a factual finding made by the sentencing judge, he or she is required to establish that the finding was "not open" to the sentencing judge. That is, "there is no evidence to support a particular finding". 2. In Hordern v R, Basten JA concluded at [20] that the "constrained approach" in R v O'Donoghue is "clearly wrong" and should not be followed. His Honour's reasons for coming to this conclusion are set out in Hordern v R at [5]-[19]. In effect, his Honour contends that to require applicants to establish that a finding was "not open" to a sentencing judge goes beyond the error identified in House v The King of simply "mistak[ing] the facts", the former test amounting, in effect, to an error of law. It is not necessary for me to consider whether the test in R v O'Donoghue is correct in order to dispose of Grounds 1, 2 and 3 because none of them are made out in this matter whether the appropriate test is mistaking the facts or whether it is that the factual finding was "not open" to the sentencing judge. On this basis I will consider these grounds by assessing whether the relevant findings were "open" to the sentencing judge. 3. Ground 1 alleges error in the assessment of the offender's prospects of rehabilitation. The relevant matters that may go to an assessment of an applicant's prospects of rehabilitation as stated by Basten JA in R v Elyard [2006] NSWCCA 43, at [19] are as follows: "In assessing prospects of rehabilitation, the Court will generally have access to material falling within one or more of the following categories: (a) evidence of past conduct and behaviour of the offender; (b) professional opinions, taking into account past conduct and behaviour and expressing views as to future prospects, and (c) at least in some cases, the opinions and expressions of intention of the offender himself or herself." 1. As for (a), the applicant had a history of depression and heavy consumption of drugs and alcohol. These factors had been present for the previous 10 years but this was the first time that the applicant had come in contact with the criminal law. 2. As for (b), the professional opinions regarding the applicant, Ms Cheney described his risk of reoffending as "medium". Although Mr Sheehan made no specific finding in this regard, he expressed caution on this issue in his report. Both experts opined that the applicant showed little insight, had certain risk factors and needed help to overcome his problems. I have set out the relevant passages from these reports above. 3. As for (c), Ms Cheney reported that the applicant did not believe that he had any criminogenic needs to address and initially demonstrated an unwillingness to engage in strategies such as behaviour intervention programs and community service work. After further consultation he verbalised a commitment to engage in such activities "if found suitable". Mr Sheehan opined that whilst the applicant's mood remains depressed and his attitude pessimistic, his ability to respond positively to programs is impaired. He recommended preliminary engagement with a correctional psychologist to increase his readiness for programs, addressing mood and motivation. Mr Sheehan also stated that the applicant had not as yet had counselling in custody. 4. During his evidence the following questions were put to the applicant by his barrister: "Q. Since you've been in custody you've had some mental health intervention, so you've seen some people from Justice Health? A. Yep. Q. You've had some psychology sessions? A. Yep. Q. They've started you on some antidepressant medication? A. Yep Q. At the time this happened in January, you weren't receiving any form of treatment for your mental health; is that right? A. No Q. How have you found the experience of being on antidepressant medication? A. Yeah, it's good." (Emphasis added.) 1. The applicant then went on to state that he would stay on medication when released from custody. 2. The applicant's counsel in the District Court provided detailed helpful written submissions to the sentencing judge. The submission as to the applicant's prospects of rehabilitation and likelihood of reoffending was ultimately in these terms: "If the offender can manage his mental state and use of alcohol and other drugs in the future, the court could have confidence that he has good prospects of rehabilitation and is unlikely to reoffend." 1. That finding urged upon the sentencing judge is in similar terms to the finding that his Honour ultimately made. That is, based on the evidence of Ms Cheney, Mr Sheehan, the Justice Health Records and the applicant's evidence the sentencing judge stated that insofar as the likelihood of reoffending and prospects of rehabilitation were concerned: "…those matters are in the lap of the Gods and really, to some extent, it depends upon whether this offender in custody will try and seek out help and if it is given to him will be assisted by it and accept it". 2. Despite the fact that his Honour's findings reflect the evidence and submissions before him, it is contended in this court that his Honour erred by failing to have regard to the italicised portion of the applicant's evidence extracted above at [62]. That is, his Honour erred in his assessment of the efforts already made by the applicant to rehabilitate himself. There are a number of problems with this ground. 3. First, Ms Cheney, Mr Sheehan and the Justice Health Records all establish that since entering custody the applicant had been assisted by Justice Health and started on medication. Ms Cheney's report records that she spoke to the relevant psychologist at Justice Health and her report was based in part on what she was told. There was no suggestion she was informed that the applicant was being provided with ongoing therapeutic psychological counselling or had sought anything out. On the contrary, the applicant initially told Ms Cheney that he did not need any help. 4. Second, the reference by his Honour to the applicant having "never sought assistance for his depressed mood" comes directly from the report of Mr Sheehan that was relied upon by the applicant. Given that his Honour noted that the applicant was medicated in custody and had been treated for mental health issues by Justice Health it is clear that both Mr Sheehan and the sentencing judge were here referring to the situation prior to the applicant entering custody. 5. Third, at no time during the proceedings on sentence was it ever submitted to the sentencing judge that that the reports of either Ms Cheney or Mr Sheehan were wrong or out of date. This is no doubt because they were dated 17 July 2018 and 19 July 2018 respectively and the proceedings on sentence were conducted on 30 July 2018. 6. Finally, when his Honour stated his hope that the applicant would be "given access to the proper psychological and other counselling which might help him return to a normal way of life", this was said in the context of his rehabilitation prospects and risk of reoffending generally. It did not suggest that the applicant was not already on any mental health plan. 7. No submissions were made concerning the applicant's agreement with his barrister that he had had "some psychology sessions". Although I do not consider it necessary to make any finding about this, it seems to me to be consistent with the evidence that on entering custody he had been medicated and had been in contact on a few occasions with psychologist in Justice Health. It does not mean that the sentencing judge overlooked or misunderstood the mental health treatment that he had received in custody. It was common ground that the applicant had not sought help before entering custody. His Honour closely analysed the evidence contained in the relevant reports. No error has been established based on this portion of the applicant's evidence. 8. As for Ground 2, it was contended that his Honour erred in his assessment of the applicant's risk of reoffending. There were two aspects to this ground. First, it was submitted that error is disclosed in that portion of his reasons where his Honour stated that Ms Cheney had noted something "which appears self-evident", which was the applicant's "pattern of passive leisure activities dictated by a propensity for explosives and firearms". 9. The reference to the "pattern of passive leisure activities dictated by a propensity for explosives and firearms" comes directly from Ms Cheney's report and Mr Sheehan observed something of a similar nature. That is, the applicant now contends that it was not open to his Honour to make findings based on matters contained in these reports. When this was pointed out to the applicant's counsel during the hearing, it was submitted that the principles in R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 applied and the sentencing judge ought to have exercised caution when reading these reports. 10. The applicant gains no assistance from the principles derived from the decision in R v Qutami to found a submission that it was not open to the sentencing judge to rely on matters in the report of Ms Cheney and/or Mr Sheehan. In R v Qutami, Smart J, with whom Spigelman CJ and Simpson J (as her Honour then was) agreed, stated the following at [58]-[59]: "There is one further general observation. In this case reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases only very limited weight can be given to such statements. There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements." 1. The principle derived from R v Qutami is that a sentencing judge should exercise caution before accepting the untested hearsay evidence of what an offender has told an expert when the offender is present in court and declines to give evidence in his proceedings on sentence. The principle does not extend to any need for caution when otherwise assessing the opinion of an expert who has set out the information upon which that opinion was based in their report. In the present case Ms Cheney clearly set out the basis upon which her report was obtained which included discussions with a number of people and access to Justice Health records and the applicant's family. No objection was made to the report nor was any submission made to the effect that his Honour should not have had regard to the contents of Ms Cheney's report or any other evidence before him. 2. The other complaint raised under Ground 2 relies on an error disclosed in the transcript of the proceedings on sentence. The sentencing judge had at one stage during submissions stated that "it would be a courageous move to consider this just a blip on the radar". The difficulty is that those words do not appear in the Reasons for Sentence. This Court has stated on many occasions that the error is to be found in the Reasons for Sentence and not in the transcript. As Johnson and Bellew JJ stated in Hampton v R [2014] NSWCCA 131 at [23] (Gleeson JA, Price and Garling JJ agreeing): "The Court should keep in mind concerns which have been expressed where error is said to arise based upon interchanges between the Bench and counsel during submissions: R v Pham [2005] NSWCCA 94 at [11]; R v Thompson [2005] NSWCCA 340; 156 A Crim R 467 at 474-475; [32]. These grounds also appear to strain the limits of permissible grounds of appeal as explained in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at 477-478; [79]-[82]." 1. I am not satisfied that error is disclosed in any observations made by his Honour during submissions on sentence. Consistent with the submission put to him by his counsel below, the applicant's prospects of rehabilitation were good if he could control his mental health and alcohol problems. His Honour had some reservations about that but no error is disclosed in the way that his Honour dealt with this issue. 2. Nor do I accept the submission made a behalf of the applicant that the fact that he had had an interest in explosives in the past was not relevant to the question of reoffending. There were a number of aspects of the applicant's behaviour relevant to future offending such as the circumstances of the present offending involving a loaded firearm, the fact that police found chemicals that could make explosives at his home and the fact that the applicant had found it "fun" to watch explosions. Should the applicant not be able to get his mental health and alcoholism under control these factors gave rise for concern. No error is disclosed in his Honour relied upon these factors. 3. It is clear from the sentencing judge's reasons that, although his Honour accepted that this was the first time that the applicant had come before the courts, there were nonetheless factors in his lifestyle that gave rise to caution insofar as any future offending was concerned. Those matters included the fact that the applicant had not sought help before, that he had consumed a significant amount of alcohol at the time of the offences, that he had taken drugs, that he was found with explosive devices and that the offence involved an unregistered loaded firearm. Ground 2 has not been established. 4. Similarly, in relation to Ground 3, the applicant submitted that his Honour fell into error when he stated that the offending revealed "not only the extent of [the applicant's] poor judgment but it obviously reveals a significant potential danger if that situation were to recur". Again the difficulty with this submission is that his Honour was again relying upon conclusions found in the report of Mr Sheehan, which was the report relied upon by the applicant. 5. His Honour went on to note that "if the degree of intoxication and mental unbalance which exhibited itself in January of this year was to recur and the offender was in contact with explosives and/or firearms, one does not need to be too clever to work out there could be serious harm or damage to persons". 6. Although this Ground overlaps significantly with Ground 2, the nub of it is that his Honour made no specific finding on the actual risk of reoffending yet still made comments about what might occur if he did. That is, the sentencing judge was said to have conflated the potential danger of reoffending with the likelihood of the applicant reoffending. 7. I am not satisfied that any error is disclosed in his Honour's observations regarding the potential danger should the applicant reoffend. The potential danger of the applicant reoffending was impacted by whether he could control his mental health and alcoholism and whether he maintained the same recreational interests. The likelihood of this happening depended on whether he was able to control his mental health and alcoholism and whether he maintained the same recreational interests. His Honour was well aware of the issues that were relevant to this aspect of his sentencing exercise. I am not satisfied that in noting the dangers should the applicant reoffend, his Honour erred in the exercise of his discretion. 8. Finally, under Ground 4 it was submitted that the aggregate sentence imposed on the applicant is manifestly excessive. Although the appeal is against the aggregate sentence and not the indicative sentences, it is well accepted that regard can be had to the indicatives sentences in assessing questions of manifest excess of the aggregate sentence. As Hulme J noted in JM v R [2014] NSWCCA 297 at [40] (footnotes omitted): "The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive. A principle focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved: This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures." 1. In order to establish that the aggregate sentence imposed on the applicant was manifestly excessive it is necessary for him to establish that it was "unreasonable" or "plainly unjust": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. It is not a question of whether this court would have exercised its sentencing discretion differently: Markarian v The Queen at [28]. As the High Court observed in Lowndes v The Queen (1999) 195 CLR 665 at 671-672; [1999] HCA 29 at [15] (footnote omitted): "Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice." 1. As for the objective seriousness of the offending, at the hearing of this application, counsel for the applicant sought to classify the applicant's offending behaviour as a suicide attempt "gone wrong". It was submitted that the applicant was focused on himself rather than doing harm to others and that this meant he was in a "unique category for this type of offending". 2. Although it is to be accepted that after the criminal conduct upon which the applicant came to be sentenced he self-harmed, he pleaded guilty to a number of offences, some of which have as an element of the offence as putting other persons in fear of violence. Some offences included actual violence. The difficulty with the submission that the objective seriousness was low because the applicant intended to harm himself and not others is that if he had actually intended to endanger the lives of others he would be looking at much more serious offences, especially given the use of a loaded firearm. 3. I have had regard to the other matters relied upon by the applicant in support of a contention that the sentence is "plainly unjust". Those matters include that the offences were not planned or organised, that his Honour found that count 1 fell "between the mid-range and low-range of objective seriousness", that the sentencing judge was satisfied that the offending could not be divorced from the mental state of the offender, that the applicant had voluntarily ceased offending, that the offending occurred over a relatively short period of time and that the applicant's remorse was accepted as genuine. 4. As against these matters it needs to be noted that the applicant stood to be sentenced on nine counts including two with maximum penalties of imprisonment of 10 years and four with maximum penalties of imprisonment of 5 years. A loaded unregistered firearm was used and the applicant assaulted and intimidated his girlfriend, occasioned actual bodily harm to her, pointed a firearm at her, threatened to kill her and swung a tomahawk at her. 5. It is to be accepted that the indicative sentence for count 1 was almost as high as the aggregate sentence, but given the number of offences and the difficulty in assessing the application of the totality principle with aggregate sentences, this fact does not suggest error. 6. The applicant noted that there are only 13 cases under s 93G of the Crimes Act recorded in the Judicial Commission statistics. It is to be accepted that these statistics are of little assistance in the present matter. Furthermore, the Judicial Commission does not presently maintain statistics as to the collation of aggregate sentences meaning it is difficult to make comparisons when aggregate sentences are imposed: Knight v R [2015] NSWCCA 222 at [88]. 7. Complaint is made under this ground regarding the way in which his Honour dealt with the decision in R v Barker in his Reasons. His Honour was provided with the decision in R v Barker [2009] NSWCCA 225 by the applicant's counsel. His Honour set out in the facts in that matter and noted that the offences in R v Barker were "more objectively serious" but that "on the other hand the offender in the present case faces significantly more charges". The applicant was critical of this comparison contending that it is not the quantity of the charges which is relevant but the quality or the nature of the offending. I am not satisfied any error is established in the way that his Honour considered this decision. Nor does it give any particular guidance as to whether the present aggregate sentence is manifestly excessive. 8. The applicant has failed to establish that the sentence imposed on him was unreasonable or plainly unjust. Orders 1. I would make the following orders: (1) Grant leave to appeal. (2) Dismiss the appeal. 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: 18 September 2019