Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Masters v R [2019] NSWCCA 233 Hearing dates: 6 September 2019 Date of orders: 30 September 2019 Decision date: 30 September 2019 Before: Bathurst CJ at [1]; Macfarlan JA at [2]; Hamill J at [3] Decision: (1) Application for leave to appeal granted. (2) Appeal allowed. (3) Quash the sentence imposed in the District Court, and in lieu thereof: (a) The applicant is sentenced to an aggregate sentence of 4 years commencing on 3 October 2017 and expiring on 2 October 2021 with a non-parole period of 2 years expiring on 2 October 2019. (b) The applicant will be eligible for release on parole at the expiration of the non-parole period. (4) Confirm the compensation order made in the District Court. Catchwords: CRIMINAL LAW – appeal against sentence - kidnapping and attempted arson – bizarre offending - offender with mental illness - relevance to sentencing - reduction in moral culpability - error in failing to take into account - offences committed during change of drug regime - failure to follow doctor's orders - where no history of violent or bizarre behaviour - correct approach to sentencing - prospects of rehabilitation - failure to make finding - error in sentencing process - applicant re-sentenced Legislation Cited: Crimes Act 1900 (NSW) ss 86(1), 195(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 33, 44 and 53A Criminal Appeal Act 1912 (NSW), s 6(3) Cases Cited: Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Gal v R [2015] NSWCCA 242 Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39 Jung v R [2017] NSWCCA 24 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lam v R [2015] NSWCCA 143 R v Billy Krey [2019] NSWSC 762 R v Champion (1992) 64 A Crim R 244 R v DW [2012] NSWCCA 66 R v Israil [2002] NSWCCA 255 R v Kelsall [2015] NSWSC 480 R v Letteri (Unreported, New South Wales Court of Criminal Appeal, 18 March 1992) Ryan v Regina [2017] NSWCCA 209 WW v R [2012] NSWCCA 165 Zuffo v R [2017] NSWCCA 187 Category: Principal judgment Parties: Russell Lee Masters (Applicant) Regina (Respondent) Representation: Counsel: B Neild (Applicant) B Hatfield (Respondent) Solicitors: Legal Aid Commission (Applicant) Director of Public Prosecutions NSW (Respondent) File Number(s): 2017/298500 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: Nil Date of Decision: 31 August 2018 Before: Acting Judge Marien SC File Number(s): 2017/00298500 Judgment 1. BATHURST CJ: I have read the judgment of Hamill J in draft. I agree with the orders proposed by his Honour and with his Honour's reasons. 2. MACFARLAN JA: I agree with Hamill J. 3. HAMILL J: Russell Lee Masters (the applicant) seeks leave to appeal against an aggregate sentence imposed on him by Acting Judge Marien SC in the District Court on Friday, 31 August 2018. The applicant was sentenced in relation to two offences which occurred sequentially and also asked the sentencing Judge to take into account three further offences on a Form 1. [1] Those further offences were committed at around the time of, or during the course of, his commission of the two offences for which he stood to be sentenced. As the sentencing Judge said, the facts and circumstances surrounding the offences were "somewhat extraordinary and, in some respects, bizarre". 4. His Honour imposed an aggregate sentence of 5 years with a non-parole period of 2 years and 6 months. The sentences commenced on 3 October 2017. The sentencing Judge also made a compensation order and there is no suggestion that this Court should interfere with that order. The applicant relies on the following grounds of appeal: 1. The sentencing Judge erred by failing to consider the applicant's reduced moral culpability arising from his mental condition at the time of the offending. 2. The sentencing Judge erred by failing to consider the applicant's prospects of rehabilitation and likelihood of reoffending. 1. The first offence was one of detaining a taxi driver for advantage. The facts of that offence were extremely serious and the experience for the vulnerable victim must have been a terrifying one. It attracted a maximum penalty of 14 years imprisonment: see s 86(1) of the Crimes Act 1900 (NSW). The second offence, committed immediately after the detention of the taxi driver came to an end, was attempting to destroy property by fire. It carried a maximum penalty of 10 years imprisonment: see s 195(1)(b) Crimes Act. 2. The facts of the attempted arson charge were bizarre on their face but, in light of the applicant's limited criminal history, the entire incident commencing from the detention of the taxi driver and concluding with a wholly unsuccessful attempt to set fire to a petrol station was extraordinary. I interpolate that the applicant had a criminal history limited to two minor offences (offensive behaviour and resisting arrest) in 2003 and two offences of driving with the prescribed concentration of alcohol. He presented with impressive character references. 3. In that context, the following undisputed facts found by the sentencing Judge were remarkable: "The agreed facts in relation to these matters are somewhat extraordinary and, in some respects, bizarre. The facts state that on Tuesday, 3 October 2017, the victim, John Learmonth was a taxi driver for Taxis Combined in Taree. At approximately 6.30pm, the offender was released from the Taree Police Station on conditional bail. Evidence was given before me in the proceedings that the offender had been arrested in relation to the offence of common assault upon his partner and after being charged, he was released on bail. Later that night, at approximately 10pm, the offender approached the victim's taxi cab in the taxi rank outside the Manning River Hotel in Taree. The offender got into the front passenger seat of the victim's vehicle. The victim concluded that the offender was not intoxicated as he could not smell any alcohol on the offender and the offender was speaking normally. The offender asked the victim to take him to Bulahdelah, a distance of some 73 kilometres. Due to the long distance of the journey, the victim requested upfront payment in full. The offender agreed to pay upfront but he only had $35 and 75 cents. The victim advised the offender that that amount of money would not pay for a taxi to Bulahdelah. The victim agreed to drive the offender the distance that $35.75 would take him but no further. The offender would then try and hitch a ride the rest of the way to Bulahdelah. The victim began driving towards Bulahdelah. Approximately two kilometres before the victim reached the intersection of the Pacific Highway and The Lakes Way, Rainbow Flat, the victim informed the offender that the metre had reached $35.75. The victim told the offender that he would drop the offender off south of the intersection of Pacific Highway and The Lakes Way as that area was well lit and it would be easier for the offender to hitch a ride from there. As the victim began slowing down to pull over to the side of the road, the offender's tone and demeanour changed becoming threatening. The offender said to the victim, 'You will be taking me all the way to Bulahdelah'. The victim said, 'That is not our agreement'. The offender leaned in close towards the victim. This made the victim feel uneasy. The offender said, 'You know what this is, don't you?' The victim replied, 'Are you threatening me?' and the offender said, 'Yes' and the victim said, 'So to be clear if I don't take you to Bulahdelah you will assault me?' The offender said, 'Yes'. The offender then agreed to take the offender to Bulahdelah because he feared that he was going to be assaulted by the offender The victim was not sure if the offender was armed but considered it to be possible, as he had been held up at knifepoint before. The victim continued driving southwards along the Pacific Highway where the designated speed limit is 110 kilometres an hour. The offender told the victim to drive faster. The victim complied with the offender's direction. The offender then told the victim to drive even faster. Again, the victim complied with the offender's direction. The victim then tried to slow down the vehicle when he thought the offender would not notice but the offender saw that they were slowing down and was insistent that the offender drive faster The victim complied with the offender's demands to drive faster out of fear that he would be assaulted. During the journey, the victim's vehicle reached speeds of 200 kilometres an hour. When the victim's vehicle reached other vehicles or approached turns, he would slow down to avoid a collision The offender would then become aggressive with the victim and insist that he continue to drive at the higher speed The distance between the intersection of the Pacific Highway and The Lakes Way, Rainbow Flat and the Caltex Service Station at Coolongolook is 30 kilometres. As the victim's vehicle was approaching Coolongolook where the speed limit was 80 kilometres an hour, at the direction of the offender, the victim continued to drive at a high speed. At the last moment, the victim applied the brakes and somehow pulled the vehicle into the 24 hour Caltex Service Station at the side of the highway. He was only just able to pull the vehicle up in time without colliding with anything. The victim threaded the vehicle through the petrol bowsers and parked the vehicle. He then pulled the keys out of the ignition, opened the door and attempted to get out of the car. The offender then grabbed the victim by his left arm in an attempt to restrain him from getting out of the car. The offender said, 'What do you think you're doing?'. The victim tried to break free from the offender's grasp but the offender punched the victim to the left side of his face causing the victim immediate pain and badly bending the victim's glasses. The offender lost his grip of the victim's arm but maintained his grasp of the victim's shirt. The victim continued to struggle to get away from the offender. The victim's buttons ripped off his shirt as the offender continued to hold onto the victim's shirt. The victim exited the vehicle bare chested with his shirt around his left wrist and over his head. Once outside the vehicle, the victim ran into the Caltex Service Station and said to the service station assistant, 'Lock the door and call the police'. The service station assistant locked the doors to the service station and then told the victim that he had already contacted the police. The offender then in a fit of rage ripped the EFTPOS machine out of the taxi and threw it on the ground. The offender did the same with the footwall mats inside the vehicle. Two truck drivers approached the offender and tried, unsuccessfully, to calm him down. [The] offender then walked around to the open driver's door of the taxi using the full weight of his body he pushed the door backwards towards the front of the car and he did this about 12 times using significant force until the hinges of the door eventually broke. The offender then walked to the boot of the vehicle. He opened the boot, picked up a baby seat from inside the boot and threw that on the ground. He then threw multiple other items from inside the boot onto the ground before walking towards the BP Service Station which was located approximately 100 metres away on the other side of the Pacific Highway. Although it is not stated in the facts, I understand that the service station was actually closed. Upon entering the BP Service Station across the road which had a number of columns with four fuel bowser hoses on both sides of each of the columns, the offender proceeded to approach the first column and removed one of the fuel hoses. He released the fuel onto the ground from the hose before placing the hose in the fuel on the ground. The offender then set the fuel alight using a cigarette lighter. He then walked away from the lit fuel. The fuel remained lit for approximately one minute before extinguishing. I should explain that because the service station was closed, the fuel that the offender released onto the ground was the remnants of fuel left in the hose head. After two minutes, the offender returned to the same fuel pump and the flame had gone out. This time, the offender removed all four of the fuel hoses and released more fuel onto the ground before placing the hoses in the fuel on the ground and setting the fuel alight resulting in a large burst of flames. The fuel remained alight for approximately one minute before extinguishing. The offender then walked over to the next column and proceeded to remove all four of the fuel hoses on the side of that column. He then released a quantity of fuel before placing the hoses in the fuel on the ground and setting the fuel on fire. Once it was alight, the offender then walked over to the far side of the service station to further fuel pump columns. He then proceeded to remove all four of those fuel hoses and released a quantity of fuel before setting them alight. This time, the fire went out quickly. The offender returned to the hoses, kicked them, again set the fuel alight using his lighter and the fire went out within a few seconds. The offender then went to the side of another column and removed a fuel hose. He then released a quantity of fuel again onto the ground and set it alight. The offender had a torch with him so that he could see clearly in the dark. Once the fuel was alight, the offender walked away from the service station. The fuel burned for a number of minutes before going out. When the offender realised that the fires were not continuing to burn, he walked to a nearby park, collected some fallen branches and leaves and placed them on top of the fuel at the service station in an effort to make a more substantial fire. The offender then poured more fuel onto the branches and leaves. In total, the offender removed and drained 17 fuel hoses. It was fortunate, indeed, that a substantial fire did not ensue from all of those activities of the offender. Police attended the service station to find the offender crouched down beside a fuel bowser. He was holding some large tree branches over the fuel hoses which were on the ground. There was a large amount of fuel on the ground surrounding the fuel hoses and the offender. The offender was in the process of setting the fuel alight. Police directed the offender to stop what he was doing. The offender looked at the police and said, 'Fuck off'. The offender continued to use the lighter to set fire to the fuel. The offender was then sprayed with OC spray. After the offender stood up, the police told him not to move and to keep his hands where they could be seen. The offender said, 'Fuck off, cunts, don't fucking touch me or tell me what to do, cunts, I'll blow this up'. The offender was again sprayed with OC spray and police repeatedly directed him to get on the ground. The offender continued to resist police until he was eventually handcuffed. The offender was provided with medical assistance in relation to the OC spray. He was taken to Foster Police Station where he participated in a recorded interview in which he made admissions to committing the offences, stated that prior to committing the offences he had been drinking at a pub. He estimated that he consumed between four to five beers and between two to three cans of beer. The offender stated that this was not a lot for him to drink and said that, 'I don't think it was an excessive amount'. The offender said he could remember committing the offences but was not sure why he had committed the offences. Those facts disclose the commission of extremely serious offences by the offender. The detain for advantage offence involved the offender creating a situation of extreme danger to the victim, other road users and, indeed, to himself. The offender threatened the victim that if he didn't drive him to Bulahdelah he would assault him. Under fear of that threat, the offender then ordered the victim to drive faster and faster so that the victim on occasions was effectively forced to drive at a speed of some 200 kilometres an hour at night. Thanks to the extraordinary ability of the victim to maintain control of the vehicle, particularly when he managed to get it into the service station and stop the vehicle without colliding with a petrol bowser or anything else he managed to stop the vehicle, tried to get out of the vehicle but was assaulted inside the vehicle by the offender punching him to the face. After the victim successfully escaped from the vehicle, the offender set about causing considerable damage to the vehicle in a rampage. However, this rampage of extreme criminal conduct continued. On my calculation, on some seven occasions the offender took hoses from the petrol bowsers at the nearby BP Service Station and put fuel onto the ground and set fire to the fuel. I am satisfied beyond reasonable doubt that it was the intention of the offender to light an enormous raging fire at the BP Service Station. That is the only conclusion that can be drawn from his consistent sustained attempts on a number of occasions to attempt to light a fire. As I have said, at one point he threatened the police not to touch him or 'I'll blow this up'." 1. The evidence disclosed that the applicant had been treated for some form of psychiatric or psychological illness, and he had a minor criminal history, but there was nothing in his behavioural history of a similar nature to the present offending. 2. The applicant's case on sentence included a body of evidence going to these mental health issues. This included the contents of a pre-sentence report which referred to the fact that there was no formal diagnosis but that he had been treated for "anxiety and depression" since 2010. The report also referred to the fact that the applicant was "weaning off" one medication and changing to another but that he did "not follow the GP's directions for the change in medication". A report from a psychologist, Kris North, was tendered. It referred to a relevant history going back to the applicant's school years when he had symptoms of Attention Deficit Hyperactivity Disorder (ADHD) resulting in "poor frustration tolerance and general impulsivity". At the time of the offending (and sentence), Ms North expressed the opinion that the applicant was suffering from social anxiety disorder, major depressive disorder (severe recurrent episode, with anxious distress) and alcohol use disorder. 3. Each of these diagnoses was based on the applicant's history and presentation, and reference was made to the relevant parts of the standard and current diagnostic tool (DSM-5). In his judgment, the sentencing Judge questioned the psychologist's expertise to provide those diagnoses "other than to say that the offender meets the criteria" and noted that Ms North was "not a trained medical practitioner (such as a psychiatrist)". 4. There are no doubt cases in which the existence and nature of an offender's mental condition is controversial, or where the evidence of a psychiatrist may be more persuasive than that of a psychologist and this is reflected in various judgments of this Court. [2] However, there is no suggestion that the prosecution required Ms North for cross-examination, objected to her report or challenged her expertise. [3] 5. Further, in some cases, in spite of the absence of a medical degree, a sentencing Judge may find a psychologist's opinion more persuasive than that of medically qualified experts. [4] Even so, the sentencing Judge accepted the applicant was being treated for depression by his GP, Dr Rachel Coelho, and found Dr Coelho's opinion "of much more assistance in determining what caused the offender to act in the extraordinary way he did that night". The sentencing Judge accepted that: "the offender's changing of medication and his complete cessation of medication two days before the offence played some role in his commission of these offences. I come to that view because he is a man effectively of prior good character with no history of violence and, certainly, no history of such bizarre serious violent behaviour." 1. His Honour also accepted that "to some extent his mental condition contributed to the commission of these offences" although he said the applicant "largely contributed to that situation" by failing to follow his doctor's instructions. His Honour had "no doubt that the changing of his medication together with some alcohol consumption that night played a role in the commission of the offences." 2. The sentencing Judge, correctly, came to the view that his mental condition was such that the weight to be given to general deterrence was reduced: see, for example, R v Israil [2002] NSWCCA 255 at [22]; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]. In R v Letteri (Unreported, New South Wales Court of Criminal Appeal, 18 March 1992), Badgery-Parker J (with whom Gleeson CJ and Sheller JA agreed) said: "The principle then is clear enough. It is correctly stated as follows — that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors." 1. Kirby P (as he then was) adopted this passage in R v Champion (1992) 64 A Crim R 244. His Honour explained the rationale behind the principle while noting: "General deterrence still operates. It is in place for the protection of the community and the victims of offences which the community rightly takes most seriously. But as that principle falls upon a person such as this applicant, it is necessarily a consideration to which less weight can, and therefore should, be given." (footnotes omitted) 1. The sentencing Judge appeared to be conscious of these principles and said: "However, I do accept that to some extent his mental condition contributed to the commission of these offences but because he largely contributed to that situation, I must still to some degree place weight upon the principle of general deterrence although there should be some reduction in the weight I give that consideration because of his mental condition that night." 1. However, his Honour did not, at least in clear terms, indicate that the mental condition might (or did) impact on the applicant's moral culpability: contra Israil at [23]; De La Rosa at [177]. This is the subject of the first ground of appeal. 2. There were a number of other mitigating features in the applicant's case on sentence. 3. The applicant received a reduction in his sentence of 25% for the utilitarian value of his early plea of guilty. The applicant also gave evidence on sentence and wrote letters to the victim of the kidnapping and to the Court. He expressed his remorse. The letters are in handwriting and have a genuine feel about them. He told his victim that he was "in prison for what I done that night, [a]nd I know I deserve to be". The sentencing Judge held that the applicant was truly remorseful. 4. The report from Dr Coelho described him as a "mild mannered gentlemen" and a generally compliant patient. She expressed the opinion that "with the right medical and psychological care in the community", he would have a "great recovery". There were a number of character references that spoke very highly of the applicant. For example, the CEO of the local Aboriginal Land Council said that the applicant was a "reliable, honest, hard worker" and a "trustworthy mentor to young Aboriginal men". He described an incident where the applicant helped out on short notice and described Mr Masters as a "model citizen". The applicant's brother said that the applicant could work as a fencer upon his release and that the working hours would be flexible to enable the applicant to attend medical and other appointments. 5. The sentencing Judge made a finding of "special circumstances" and imposed a non-parole period of 2 years and 6 months (50% of the total sentence). This was a substantial adjustment to the non-parole period but was one that was well warranted in the individual circumstances of the case. The basis of the finding was that it was the applicant's first gaol sentence and that there was a need for an extended period of supervision when the applicant was released to the community. Ground one: the sentencing Judge erred in failing to consider the applicant's reduced moral culpability arising from his mental condition at the time of the offending 1. It is well established that where an offender's mental health or intellectual disability contributes to the commission of an offence, it is open to a sentencing Judge to find that their moral culpability is thereby diminished. There are many cases to this effect and the principle is not in dispute. In the course of the sentencing hearing the applicant relied on written submissions which included: "28. It is submitted that Mr Master[s'] moral culpability is reduced because of his mental conditions. It is submitted that the Court could find that there is a causal link between his conditions and the offending behaviour." 1. In the course of oral submissions, counsel for the applicant repeated this submission saying that "your Honour can take into account those mental conditions as a matter that go to reducing Mr Masters' moral culpability." Counsel referred to the causal link between the mental health issues and the offending. The sentencing Judge said: "If someone is suffering from schizophrenia and they have a history, I'm not saying that this is Mr Masters, but if someone knows that if they don't take their psychotropic medication for schizophrenia for example, that they're going to act violently and aggressively, and they make a deliberate decision not to take it, their medication, how can that possibly be a mitigating factor, that they then – their mental illness returns and they go and act aggressively and violently when they know that by going off their medication – now, I'm not saying that's this case directly, but isn't it getting – it's in that kind of area." 1. In the remarks on sentence delivered two days later, the learned sentencing Judge made no reference to the impact of the applicant's mental health on his moral culpability. This was the case in spite of his Honour accepting there was a causal link between the condition and the offending. His Honour took the view that "the offender must take some responsibility for bringing the situation about" (by failing to follow his doctor's advice) but did say that the "mental condition does to some extent mitigate the offences". 2. In very fair and reasoned submissions, the respondent accepted that there was no specific reference to moral culpability in the remarks on sentence but relied on the observation that the condition "does to some extent mitigate the offences". Viewing the remarks on sentence as a whole, I am not satisfied that the reference to the offence being mitigated was a reference to the fact that the applicant's moral culpability was reduced, or a determination of the applicant's submission. The remark was made in the context of the purposes of punishment and not in the course of an assessment of objective criminality. 3. In view of the clear submission made on the applicant's behalf, and the remarks concerning the applicant failing to follow the doctor's advice, I am satisfied that this ground of appeal is established and that the sentencing Judge fell into error in failing to consider whether the applicant's moral culpability was reduced. There was solid evidence from Dr Coelho, upon whose evidence the sentencing Judge generally looked favourably, as to the potential impact of the change in the applicant's medication and drug regime. Further, and importantly, there was nothing in the material that would have given the applicant warning that a failure to act in accordance with his doctor's advice would result in his behaving in such a violent and bizarre manner, quite divorced from his earlier character and conduct. 4. The first ground of appeal is made out. Ground two: his Honour erred in failing to consider the applicant's prospects of rehabilitation and likelihood of reoffending 1. The applicant submitted at first instance that the sentencing Judge should make a finding that he had good prospects of rehabilitation and was unlikely to re-offend. This submission was not resolved in his Honour's judgment although it was subject to comment in the course of oral submissions. In the course of submissions, his Honour made reference to the fact that the offence appeared to be out of character and that this could lead to a finding that the applicant had good prospects of rehabilitation. However, there was no clear finding that the prospects of rehabilitation were good or how that would impact upon the sentence. The applicant submits that this was not sufficient, particularly in view of the fact that these are mitigating features pursuant to the sentencing statute: see s 21A(3)(g) and (h). 2. The respondent submitted that the remarks made by the sentencing Judge in the course of argument would be sufficient to enable the Court to find that his Honour did take the matter into account. It is well established that things said in argument can be considered in some cases but that, generally, a Judge is not bound (one way or the other) by such judicial utterances: Gal v R [2015] NSWCCA 242 at [39]. For example, if a Judge made a negative comment in respect of counsel's submissions on a particular topic, that observation would not ordinarily be sufficient to found a ground of appeal that an adverse finding was made in respect of that topic. The comments in the present case were ostensibly favourable. However, they were couched in terms suggesting that they were matters that would "go towards" a positive finding and also conditional upon the applicant's compliance with future medical advice. The exchange with counsel was as follows: "HIS HONOUR: Well, he has to have good prospects of [rehabilitation] in a situation where his conduct on this occasion was an aberration and out of character. RENARD: Yes. HIS HONOUR: I mean he has no history at all of violent offending other than common assault, a serious matter. I'm not saying it's not serious, but he only has one matter on his record, so this is clearly out of character and therefore that must go towards a finding that he has good prospects of rehabilitation, conditional of course upon him complying with directions or advice he's given by health professionals, counsellors that he's involved with because one of his mistakes in relation to this matter in not doing so. Yes." 1. The respondent also submitted, with appropriate circumspection, that the finding of special circumstances and the "generous" adjustment to the non-parole period suggests that his Honour was satisfied that the applicant had good prospects of rehabilitation and that he was unlikely to reoffend. However, his Honour did not suggest that this was the basis of the finding of special circumstances. The finding was based on the fact that the applicant had not been to gaol before and the need for a lengthy period of supervision. There is nothing in the judgment to suggest that his Honour reduced the non-parole period because of a finding pursuant to s 21A(3)(g) or (h). In any event, a finding that an offender had good prospects of rehabilitation is relevant to the total sentence imposed. It may also be a factor to take into account in adjusting the non-parole period (provided this does not result in what is sometimes referred to as "double counting" of the same factor). [5] 2. The evidence before the sentencing Judge was not completely consistent on the issue of rehabilitation. The pre-sentence report suggested the applicant represented a "medium risk of re-offending". The evidence called by the applicant was far more positive. These differences in the evidence required clear and transparent resolution. 3. For those reasons, I am satisfied that ground two is established. This Court has considerable sympathy for the workload of the Judges sitting in the District Court in places like Taree. While there were two days between the argument and delivery of judgment, it is almost certain that the sentencing Judge was dealing with many other matters, perhaps conducting a criminal trial, whilst also preparing to sentence the applicant. Judgments or remarks on sentence ought not to be examined with a fine tooth comb. Even so, the applicant's plain submission that he had good prospects of rehabilitation and was unlikely to re-offend, the differences in the opinions provided in the evidence and the fact that there is a specific mitigating feature referred to in s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW), meant that there was an obligation to record a clear finding as to the applicant's prospects of rehabilitation and whether he was unlikely to reoffend. Re-sentence 1. The grounds having been established, it is necessary to consider the sentencing discretion afresh in accordance with the decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. Having considered the maximum penalties, the seriousness of the objective facts and the peculiar and individual circumstances of this particular applicant, I am satisfied that a different, less severe sentence is warranted and ought to have been imposed: Criminal Appeal Act 1912 (NSW), s 6(3). 2. I will adopt the sentencing Judge's approach of imposing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act. Because of the close connection between the offences, there would have been a substantial degree of concurrency if an aggregate sentence was not imposed. However, because of the different types of offending and the existence of two distinct types of criminality, there would have been some degree of accumulation. 3. Even allowing for the diminution of the applicant's moral culpability arising from his mental health issues, the kidnapping matter was an extremely serious offence of its kind. As I have said, it must have been a terrifying experience for the victim even though he demonstrated considerable stoicism and resourcefulness. The attempt to set fire to destroy or blow up the service station was also on its face serious, although there was no rational or wicked motive and the attempt was spontaneous, amateurish and somewhat farcical. The putative sentence for the kidnapping will be higher than that indicated for the attempted arson because it is a far more serious offence. 4. The applicant's mental health issues played a very significant role and, as his Honour found, was the underlying cause of the applicant's conduct. Like the sentencing Judge I would reduce the weight to be afforded to general deterrence. Unlike the sentencing Judge, I would not moderate that reduction based around the applicant's failure to seek medical advice. In assessing the applicant's moral culpability I have taken into account his mental health issues and the impact of the change in his medication. These issues are significant in coming to the conclusion that a less severe sentence is warranted. 5. I would allow a discount of 25% for the utilitarian value of the plea of guilty. The plea also reflects the genuine remorse otherwise demonstrated in the applicant's evidence and letters to the Court and victim. 6. Based on the lack of prior record for similarly serious offences, the evidence presented on sentence and the affidavit read in these proceedings, I am satisfied that the applicant has good prospects of rehabilitation and that he is unlikely to re-offend, at least in a serious manner. 7. For the reasons expressed by the sentencing Judge, there are special circumstances under s 44 of the Crimes (Sentencing Procedure) Act and I propose to adopt a similar proportion between the head sentence and non-parole period to that taken in the District Court. The applicant has been in custody since the day of the offence and the sentence will commence on that date, being 3 October 2017. 8. For the purpose of s 53A(2)(b), I indicate the following individual sentences that would have been imposed if an aggregate sentence were not imposed: 1. For the kidnapping offence, a sentence of 4 years reduced by 25% for the plea, resulting in a sentence of 3 years. 2. For the attempted arson, a sentence of 2 years, reduced by 25%, resulting in a sentence of 18 months. 1. I propose an aggregate sentence of 4 years with a non-parole period of 2 years. 2. Accordingly, the orders I favour are these: 1. Application for leave to appeal granted. 2. Appeal allowed. 3. Quash the sentence imposed in the District Court, and in lieu thereof: 1. The applicant is sentenced to an aggregate sentence of 4 years commencing on 3 October 2017 and expiring on 2 October 2021 with a non-parole period of 2 years expiring on 2 October 2019. 2. The applicant will be eligible for release on parole at the expiration of the non-parole period. 1. Confirm the compensation order made in the District Court. Endnotes 1. Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32-33. 2. Cf WW v R [2012] NSWCCA 165 at [58]-[60]; Lam v R [2015] NSWCCA 143 at [78]-[82]; Jung v R [2017] NSWCCA 24 at [39]; Zuffo v R [2017] NSWCCA 187 at [73]. 3. Ryan v Regina [2017] NSWCCA 209 at [9]. 4. See for example R v Kelsall [2015] NSWSC 480 at [21], [28]-[60], especially at [46], [60]. See also, and generally, R v Billy Krey [2019] NSWSC 762. 5. See Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 at 531-532, 537; Griffiths v The Queen (1989) 167 CLR 372; [1989] HCA 39; R v DW [2012] NSWCCA 66 at [45]-[47]. 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: 30 September 2019