Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Taitoko v R [2020] NSWCCA 43 Hearing dates: 13 November 2019 Decision date: 20 March 2020 Before: Hoeben CJ at CL at [1]; Leeming JA at [2]; Lonergan J at [143]. Decision: 1. Grant leave to appeal, confined to grounds 1 and 9. 2. Appeal allowed. 3. Quash the sentence imposed on 23 November 2018, and in lieu thereof impose an aggregate sentence of 3 years and 3 months imprisonment, commencing on 28 March 2018, with a non-parole period of 2 years and 2 months. 4. The earliest date when the applicant can apply for parole is 27 May 2020. Catchwords: CRIMINAL LAW - appeal against sentence - five offences involving violence committed in a short period following sustained drinking - one count of intimidation intending to cause fear or physical or mental harm, two counts of reckless wounding, one count of common assault, one count of destroy or damage property - two men wounded, two women fearful for their safety, one woman assaulted by drink poured on her - aggregate sentence of 4 years with non-parole period of 2 years 8 months after 25% reduction for guilty plea - supplementary submissions made after decision reserved and without leave - propriety of making such submissions - whether sentencing judge erred in failing to consider that the injuries to the men amounted to "woundings in technical sense" - whether error in failing to consider medical reports, in circumstances where sentencing judge was not directed to those reports - whether unreasonable weight given to photographs of injuries to men - nature of care involved in use of photographic evidence - whether error in assessment of objective seriousness - relevance of fact that the charges could have proceeded summarily - submissions and evidence adduced which departed from agreed facts - significance of agreed facts - whether submissions based on "provocation" misunderstood by sentencing judge - whether character references unreasonably devalued by sentencing judge - significance of psychologist's report purporting to diagnose psychiatric conditions - whether sentence manifestly excessive - significance and purpose of aggregate sentence - role of totality when offending was single course of conduct - appeal allowed and applicant resentenced Legislation Cited: Crimes Act 1900 (NSW), ss 23, 35, 61, 195 Crimes Amendment (Provocation) Act 2014 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 53A Criminal Appeal Act 1912 (NSW), s 5 Criminal Procedure Act 1986 (NSW), s 166 Cases Cited: Amante v R [2020] NSWCCA 34 Angel v Hawkesbury City Council [2008] NSWCA 130 Baines v R [2016] NSWCCA 132 Berryman v R [2017] NSWCCA 297 Blacktown City Council v Hocking [2008] NSWCA 144 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246; [1981] HCA 20 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 Hanna v Environment Protection Authority [2019] NSWCCA 299 House v The King (1936) 55 CLR 499; [1936] HCA 40 JM v R [2014] NSWCCA 297; 246 A Crim R 528 Jung v R [2017] NSWCCA 24 Kerr v R [2016] NSWCCA 218 Lees v R [2019] NSWCCA 65 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Masters v R [2019] NSWCCA 233 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Nguyen v R [2008] NSWCCA 322 R (Cth) v Petroulias (No 36) [2008] NSWSC 626 R v AB [2017] NSWCCA 88 R v Harris [2015] NSWCCA 81 R v Shepherd [2003] NSWCCA 351 Turner v R [2016] NSWCCA 208 Vaughan v R [2020] NSWCCA 3 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Wollongong City Council v Papadopoulos [2019] NSWCA 178 WW v R [2012] NSWCCA 165 Zreika v R (2012) [2012] NSWCCA 44; 223 A Crim R 460 Category: Principal judgment Parties: Tamaiti George Taitoko (Applicant) Regina (Respondent) Representation: Counsel: S Russell (Applicant) D Patch (Respondent) Solicitors: Peter Murphy Criminal Law (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2017/41146 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: - Date of Decision: 23 November 2018 Before: Judge Wilson SC File Number(s): 2017/41146 Judgment 1. HOEBEN CJ at CL: I agree with the reasons and orders proposed by Leeming JA. I particularly endorse the observations by his Honour at [88] of his judgment and would go further than his Honour in his criticism of some of the submissions made on behalf of the applicant. In my opinion, proposed grounds 2, 3, 4, 5, 6 and 7 lack underlying merit and fall short of the standards this court expects of submissions advanced by counsel. 2. LEEMING JA: Mr Tamaiti George Taitoko seeks leave to appeal, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), against a sentence imposed by the District Court on 23 November 2018. He had pleaded guilty to five offences, based on conduct which took place during a period lasting just over an hour, between around 4:15 pm and 5:20 pm on 8 February 2017. There were four separate victims, whom I shall call Ms R, who worked in the Grand Hotel in Wyong, Mr H, a man who was sitting on the platform of Wyong train station, and Mr M and Ms A, who were driving along River Rd that afternoon. The two women were threatened, and were fearful for their safety; one had a drink poured on her. The two men were (separately) punched in their heads, causing wounds which required medical attention. 3. The five offences to which the applicant pleaded guilty were: 1. One count of intimidation intending to cause fear of physical or mental harm contrary to s 13(1) 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; this related to Ms R; 2. Two counts of reckless wounding, first of Mr H, and secondly of Mr M, contrary to s 35(4) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 7 years imprisonment with a standard non-parole period of 3 years; 3. One count of common assault, relating to Ms A, contrary to s 61 of the Crimes Act 1900 (NSW) which carries a maximum penalty of 2 years imprisonment. 4. One count of destroying or damaging property contrary to s 195(1)(a) of the Crimes Act 1900 (NSW). This was a related offence brought before the court pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW), based on the damage to a glass window and the aluminium framing on a door of the Grand Hotel. 1. After applying a 25% discount for his guilty pleas, the applicant was sentenced to an aggregate term of 4 years imprisonment with a non-parole period of 2 years and 8 months. 2. In accordance with s 53A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge indicated the separate sentences which would have been imposed had an aggregate sentence not been employed. Those indicative sentences were as follows (in each case after a reduction of 25% for the plea): 9 months imprisonment for the intimidation, 2 years imprisonment with a non-parole period of 16 months for each of the reckless wounding counts, 6 months imprisonment for the common assault, and 3 months imprisonment for the destroy or damage property offence. 3. The applicant was arrested shortly after the offending conduct, and had been remanded in custody for 240 days until granted bail by the Supreme Court on 5 October 2017. He continued on bail until sentenced slightly more than a year later, on 23 November 2018. The sentence was backdated by 240 days to commence on 28 March 2018. Accordingly, the sentence expires on 27 March 2022, with the non-parole period expiring on 27 November 2020. 4. A notice of appeal against sentence was filed on 15 October 2019. This was almost one year after sentence was imposed, and more than 18 months after the sentence was taken to have commenced. One consequence of that delay was that the majority of the original non-parole period had already been served by the time the notice of appeal was filed. 5. The notice contains nine proposed grounds of appeal: "1. The sentence imposed by the court is manifestly excessive and another sentence is warranted at law. 2. His Honour failed to consider, in accordance with authorities, that the two (2) counts of reckless wounding which involved a breaking of the skin by a punch were woundings in a technical sense. 3. His Honour failed to consider the two medical reports Exhibits 8 and 9 which were tendered in the case and which demonstrated that the injuries the subject of the two wounding counts were not serious. 4. His Honour gave unreasonable weight to the two photographs Exhibit C which were tendered over initial objection. 5. His Honour unreasonably found that the two wounding counts fell at the middle range of objective seriousness. 6. His Honour failed to consider the argument raised that the charges could have, and should have, proceeded in the Local Court. 7. His Honour misunderstood the submissions of counsel on sentence regarding the issue of provocation and, in doing so, sought to interpret those submissions as excusing rather than explaining the conduct. In doing so his Honour unreasonably counted this against the offender. 8. His Honour unreasonably devalued the unchallenged reference material tendered on behalf of the offender. 9. His Honour failed to give appropriate weight to the unchallenged psychologist report tendered on behalf of the offender." 1. The nature of many of those proposed grounds (including 2, 3, 4, 7 and 9) is such that it will be necessary to deal in some detail with the evidence and submissions before the sentencing judge, as well as with the basic facts of the offending. In particular, proposed ground 7 requires attention to the so called "agreed" facts, and the written and oral submissions which sought to go beyond those facts. 2. These reasons adopt the following structure: 1. they deal with the "Agreed Facts" and the attempts taken to expand upon and depart from that document; 2. they deal with the admission of the photographs (relevant to ground 4), the testimonial evidence of the applicant concerning provocation (relevant to ground 7) and the psychologist's report (relevant to ground 9); 3. they summarise the reasons given by the sentencing judge, relatively briefly; 4. they then deal with the grounds of appeal, summarising within each ground the parties' submissions and the relevant reasons of the sentencing judge; 5. finally, they explain the resentencing which I have concluded is warranted by reason of ground 1. The "Agreed Facts" and the attempts to depart from them 1. An document titled "Agreed Facts" was tendered at the sentencing hearing. It is best to reproduce that short document in its entirety: R v TAMAITI GEORGE TAITOKO 2017/00041146 Wyong Local Court Agreed Facts Sequence 1 - Destroy/Damage Property (s 166 Certificate) Sequence 3 - Stalk/Intimidate ([Ms R]) 1. The offender is Tamaiti George TAITOKO (DOB: 18/03/1987). 2. At about 4:15pm on 08 February 2017 the offender and two friends attended the Grand Hotel Wyong. The manager of the hotel, [Ms R], noticed that the males were being very loud. 3. [Ms R] noticed the loudest member of the group to be the offender, who was wearing a black t-shirt with blue writing on it. [Ms R] said to the girl she was working with 'just watch these guys'. 4. Some female staff members were on the lounges of the hotel, when the offender went over one of the staff members, bent over and said 'do you want a hug?' whilst she had her eyes closed. 5. [Ms R] approached the offender and had the following conversation: [Ms R]: This isn't on, we don't do this here. You've got to leave[.] OFFENDER: I'm not going[.] [Ms R]: You've got to go[.] The offender got in [Ms R]'s face and said 'Call the bouncer. I'm not leaving'. [Ms R]: If you don't go I'll call the police and you'll get done for fail to quit[.] OFFENDER: I will come back and I'll kill you. Me and my boys will come back for you. 6. [Ms R] walked around the offender and back towards the bar. The offender threw a beer glass, which smashed one of the front windows of the hotel. The offender was yelling and [Ms R] said 'Fuck off, get out of here. We've had enough'. 7. As the offender was leaving through the front door he took hold of the door and was smashing it backwards and forwards, causing a piece of the frame to fall off the door. [Ms R] was fearful of her safety. 8. The offender continued yelling 'I'm coming back to get you. Me and my boys will get you.' 9. The incident was captured on CCTV. Sequence 12 — Reckless Wounding ([Mr H]) 10. At about 4:45pm on the same date, the victim [Mr H] was sitting on the platform of Wyong Train Station when the offender and two other males approached him. 11. The offender approached the victim and proceeded to punch [Mr H] with a closed fist. [Mr H] remembers going down on his knees, and then the station master assisting him with a first aid kit. 12. An ambulance arrived soon after and took [Mr H] to Wyong hospital. 13. The incident was captured on CCTV, showing the offender assaulting [Mr H] repeatedly until he is on the ground. The offender and his friends then walked away and out of the train station. 14. The following injuries were recorded on [Mr H]'s discharge referral from Wyong Hospital: Deep laceration/wound of the upper eyelid - laterally exposing muscles and required 5 x sutures Bruising around they [sic] eye Swollen and tender jaw Front two teeth slightly chipped Sequence 7 – Reckless Wounding ([Mr M]) Sequence 8 – Common Assault ([Ms A]) 15. At about 5:20pm on the same date, Mr M and Ms A were travelling along River Road Wyong, in their vehicle. As they came to a sharp bend near BYO liquor store, [Mr M] has had to bring his vehicle to a stop due to the offender being in the middle of the road. 16. The offender smacked a can of drink onto the passenger side door. [Ms A] was sitting on the passenger side with the window open and the offender poured the contents of the can into the car over [Ms A] and [Mr M]. [Ms A] was immediately fearful of the offender hurting her. 17. As [Mr M] was fumbling with the gears and attempting to drive away, the offender went to the driver's door, clenched his fist and punched [Mr M] to the right side of his face. 18. [Mr M] took hold of the offender's left arm to stop him, but the offender then punched him with a closed right fist approximately 10 times. 19. [Mr M] was able to drive away and turned into the driveway of the BYO bottle shop. [Mr M] could see the offender running towards the car screaming, but was unable to get out of the driveway due to traffic. [Mr M] got out of the car just as the offender swung his left arm to punch him. [Mr M] ducked and grabbed the back of his head, preventing the offender from punching him again. 20. One of the offender's friends took hold of the offender so that [Mr M] could drive away. 21. [Mr M] attended Wyong Hospital with the following injuries: Swollen Lip Laceration/wound above right side of lip - requiring closure Graze on top of head Right Arm/Shoulder Tender - placed in sling 22. A member of the public phoned 000 to report the behaviour of the offender. 23. Police attended the scene shortly afterwards and witnessed the offender walking in the middle of the road. The offender appeared highly intoxicated and agitated. 24. As Police exited their vehicle, the offender ran away but was detained and arrested a short time later." 1. It will be seen that the Agreed Facts is a brief document. The transcript records that it was tendered in unsigned form, and was signed by the applicant early on in the sentencing hearing on Friday 2 November 2018. The applicant was represented at the sentencing hearing, and, according to the transcript, by the same counsel and solicitor who were involved with negotiating the Agreed Facts. 2. However, the applicant, by his counsel, sought to depart from some aspects of the Agreed Facts and to give further context by way of explanation and mitigation, to those facts. The applicant's written submissions 1. Brief written submissions of just over four pages signed by counsel on behalf of the applicant, dated 1 November 2018, were provided which (a) went considerably beyond the Agreed Facts, and (b) repeatedly referred to provocation. It is necessary to summarise them in some detail. 2. The first two pages summarised the offending and emphasised that all of it could have proceeded in the Local Court. The submission continued with a statement that "the facts are in essence, not in dispute" and an acknowledgment that "the offender had been drinking to excess and behaved appallingly". It was said that while there was no excuse for such behaviour, "some of it can be explained by his personal situation, his psychological background and of course, the excessive drinking". If the submissions had gone no further, then the issue concerning provocation, giving rise to proposed ground 7, would not have arisen. 3. In relation to the first offence, which took place in the Grand Hotel in Wyong, it was said that: "That interaction with the resting female was not aggressive but friendly. Instructions received from the offender, somewhat supported by the facts, is that [Ms R] approached the offender in an aggressive manner which he did not appreciate or feel was necessary in the circumstances. The matter escalated from there, and when [Ms R] threatened to call the police the offender could not comprehend how things had so escalated. Accordingly, there was some element of provocation towards the offender and it would be unreasonabl[e] to suggest the situation could not have been handled better by all concerned." (emphasis added) 1. In relation to the assault upon Mr H, it was submitted that "[i]nstructions received from the offender are that the other friend reported to the offender that [Mr H] was a paedophile" and that his estranged partner had taken up with another man and it had been reported to the offender that this other man had interfered sexually with the offender's son. The submissions continued: "It was this combination of factors which caused his then irrational mind to act the way it did". 1. The submissions did not in terms assert "provocation" in respect of the reckless wounding of Mr H. 2. In relation to the reckless wounding of Mr M, the submissions proceeded thus: "[I]nstructions are, and the facts appear to support, the offender[']s belief that the car which contained both [Ms A] and [Mr M] had tried to run him over. In his then irrational and confused state he did not realize the danger he had placed himself in by being in that location on the roadway. Words were exchanged, he cannot recall exactly what they were but they were not friendly, and he poured his can of drink over [Ms A]. Something was then said by the driver [Mr M] and the offender punched him a number of times: s 35(4). The wound, in essence, amounts to a split lip. Again, some element of provocation resulted in the offender acting as he did." (emphasis added) 1. The written submissions referred to the offender's age, that he had felt depressed, particularly with respect to his son, and had been drinking heavily. The submissions continued: "In each of the cases of assault, there was some conduct or words by the individual which provoked the offender. It is accepted that a sober individual probably would not have acted in response to such provocation. The point raised is this, the offender did not just go on some rampage attacking persons who did not have any interaction with him in some unprovoked manner." 1. The submissions referred to the early guilty plea, the fact that the offender had been at liberty for over a year without engaging in criminal conduct, but instead had been "trying to sort through issues in his life to ensure that this conduct will not be repeated" and had engaged a psychologist to work through these issues in a structured fashion. Reliance was placed upon the offender suffering from a mental illness or condition at the time and reference was made to his strong community ties and his dedication to his parents and to his son. It was said that he had accepted responsibility for his actions and acknowledged the injury or damage he had done, that he had good prospects of rehabilitation, was unlikely to reoffend, and had accepted that "his self-induced intoxication whilst not a mitigating factor does help to explain his conduct, particularly when viewed with his mental state". The tender of the photographs 1. It will have been seen from [19] above that the applicant's submissions stated of the injury to Mr M that "[t]he wound, in essence, amounts to a split lip". At the commencement of the sentencing hearing, the Crown tendered three photographs which became Exhibit C. They were one photograph of Mr M and two of Mr H, taken at 4:30 pm and 8 pm on 8 February 2017, shortly after the offending, depicting the wounds to their lip and eyelid respectively. 2. These photographs relate to proposed ground 4, which asserts that the photographs "were tendered over initial objection". The transcript does not bear that out. The Crown is recorded as stating: "I also, with no objection I think by my friend seek to tender three colour photographs …" 1. The transcript then records the following: "RUSSELL: Your Honour, look I don't object, look can I just say this your Honour, we were only informed yesterday that this was going to be part of the so-called agreed facts, I don't think I can-- HIS HONOUR: What was part of the agreed facts, the photographs? RUSSELL: Yes or any additional material apart from the agreed facts was going to be tendered by the Crown. HIS HONOUR: Do you wish an adjournment? RUSSELL: No your Honour, all I can say your Honour is they are photographs that are taken, some of them after - when surgical procedures are being undertaken or have been undertaken and so forth. They may be unnecessarily emotive, but your Honour will understand the photographs are in that particular light your Honour." (emphasis added) 1. The Crown then explained the purpose of the tender: "… Your Honour, I particularly press the matter having received my friend's submissions yesterday afternoon and there's a reference to the woundings not being particularly serious in nature and it is the Crown's view that particularly in relation to [Mr H] that that photograph certainly shows … the facts certainly describe the wound exposing layers of the muscle, but the purpose of the tender is to present some visual evidence as to actually how deep – HIS HONOUR: Yes, you're correct. As it is an element of the offence it can't be taken into account as an aggravating feature. CROWN: Yes. HIS HONOUR: But you say it makes clear precisely the extent of the wounding. CROWN: Which the Crown says, quite serious. HIS HONOUR: Which will bear upon the objective seriousness of the offending. CROWN: Yes and that's the purpose of the tender. HIS HONOUR: Yes. Any objection? RUSSELL: No your Honour, but can I just say this your Honour, that if your Honour is assisted we do have medical material – HIS HONOUR: Feel free to tender whatever you think might be of assistance. …" (emphasis added) 1. At the completion of the documentary tender, there was a final exchange concerning the photographs: "HIS HONOUR: Just before you do the Crown has also handed up of course the three photographs and seeks to tender them, I gather you don't object but you caution against any emotive reaction to them. RUSSELL: Yes your Honour." (emphasis added) 1. The notion that there was any objection – whether that be an "initial objection" or otherwise – has no foundation in the evidence, despite the formulation of proposed ground 4. The submissions going to provocation 1. Thereafter, the Crown stated that it had "particular concern about most of the material referred to as page 3 of Mr Russell's submissions", and in particular "the generalised submission in relation to there being some provocation on the part of every victim of all these offences". The sentencing judge then said "it seems a very ambitious submission". The Crown then said that in its submission "there is absolutely no evidence, either in the agreed statement of facts or in the police brief of evidence that there was any provocation by any of these victims and the offences cannot be characterised as anything other than unprovoked [and] random". The sentencing judge asked whether, if that submission was pressed, the Crown wished to adduce evidence as to those matters, and the Crown said that Mr Russell had been put on notice the previous day that he would be objecting to those portions of the submissions, and if he was intending to rely upon them then the offender would need to give evidence about it. 2. The Crown and the sentencing judge then reviewed the portions of the written submissions dealing with provocation, which have been reproduced above. 3. The first point that Mr Russell raised was that there had been a misunderstanding of his client's instructions and that he had been told that his son had been physically abused, rather than sexually abused. The sentencing judge then observed that it would be necessary for the offender to give evidence of the matters in the written submissions which were said to be on instructions, and Mr Russell confirmed that evidence could be given of that. That occurred, the evidence was adduced, and no complaint was made of this. 4. The sentencing judge then turned to provocation. It must have been obvious to Mr Russell from the exchange between the sentencing judge and the Crown that there was perceived to be some difficulty in the submissions on provocation. The following exchange warrants reproduction in full. "HIS HONOUR: Now over the page do you press your submission in relation to provocation? RUSSELL: Yes your Honour can I just clarify this, I thought I had made it as clear as I could, but perhaps it wasn't done as eloquently as it could have been done but what I was at pains to point out is that there was some element of provocation now when I say that your Honour provocation can come in all sorts of forms, it can be minor provocation, relatively minor provocation, it can be quite severe provocation that leads to - as your Honour would know a murder charge being reduced to manslaughter. It could be in all sorts of forms. What I was at pains to say is this and the facts state this, that my client was at the hotel drinking and I want to add this your Honour that he takes full responsibility for the events on this day because of his drinking, but he went over to this young lady who was seated, or laying down having a rest on the couch, and he was being friendly towards her, not overly friendly, he didn't interfere with her in any way, didn't touch her, he just said to her, 'Would you like a cuddle'. HIS HONOUR: 'Do you want a hug'. RUSSELL: A hug or a cuddle yes and the person [Ms R] took offence at that and there were words spoken and exchanged between the two and it just went on from there. HIS HONOUR: I see that. How do you characterise the words spoken and the conduct of [Ms R], you say some sort of trigger for the offending. RUSSELL: Yes well she was swearing at him and he was swearing at her. So that's as far as I understand that's in the agreed facts your Honour, there was swearing and so forth. He - your Honour has to understand this, as your Honour would, after reading the psych report, in the context of what his mindset was that particular day and feeling as if the whole world was against him and no one cared about him and he'd lost his child and he couldn't fight anymore and that was the end of it. So he just thought, this was unreasonable, that she speaks to me this way— HIS HONOUR: Hang on he says that she was swearing, but she didn't swear until he said, 'I'll come back and kill you' and then she said, 'Fuck off get out of here'. RUSSELL: Well my instructions are there were some very firm words and expletives used at the start to tell him to leave the hotel. HIS HONOUR: Well it's [not] on the agreed facts. RUSSELL: Right. Well your Honour. I think it would be, well I can lead evidence of that, your Honour." 1. On the question of "provocation" concerning the assault of Mr H, Mr Russell confirmed that the provocation was not said to have come from the victim, but from one of the people on the train station who had said that Mr H was a paedophile. There followed this exchange: "HIS HONOUR: How can that ever be provocation? It might provide an explanation or a reason for the violent behaviour, but it can't be provocation. RUSSELL: Well your Honour, I mean in the example I gave your Honour earlier there could be a report by a third party that such and such a person slept with your wife this morning and I saw him go-- HIS HONOUR: You are not suggesting that are you, that that occurred? RUSSELL: No your Honour, but I am saying this is by way of example, such and such, I saw such and such had gone out of the house in the morning, sleeping with your wife, so a third party can do it. It would be better if it came from the individual. It is nonetheless still provocation." 1. In relation to the offending involving Mr M and Ms A, there was this exchange: "HIS HONOUR: In relation to the fellow in the car, what was the provocation there? RUSSELL: What happened there your Honour, and your Honour will see the facts and my client takes full responsibility for this, he was standing in the middle of the road on a blind corner, he didn't realise that in his drunken state, didn't realise the danger that he was putting himself and perhaps other motorists in, at that particular point in time. So around the corner comes [Mr M] and his partner or girlfriend, whatever, and the car stops to a halt. My instructions are that the lady said something to him about him being in the middle of the road. He then threw the can of drink over her, and the boyfriend [Mr M] obviously said something, I am instructed said something to my client who then went around and confronted him and assaulted him. HIS HONOUR: Hang on, you've said none of this in the agreed facts? RUSSELL: The-- HIS HONOUR: That is as to what was said by the occupants of the vehicle? RUSSELL: No but I think the - I think it is accepted the Crown's probably read their brief of evidence, I think it is accepted words were exchanged your Honour between the parties. CROWN: No your Honour. RUSSELL: You don't accept words were exchanged. HIS HONOUR: Well I would like to know what was said though. Well again, your client can give evidence about that. RUSSELL: Yes he can your Honour. HIS HONOUR: If necessary the Crown can have an adjournment to call evidence in reply." 1. Thereafter, the sentencing judge offered an adjournment so that Mr Russell could get instructions and could then call his client. 2. What was put forward was on any view a significant reformulation of the primary facts relevant to the offending. The exercise of the sentencing discretion would have been quite different if the heavily intoxicated applicant had been provoked by each of his victims. Notwithstanding the reformulation, the sentencing judge was minded – no doubt because of its obvious importance to sentence – to permit this case to be advanced. 3. The submissions made in this Court appear not to appreciate the role of the Agreed Facts: "RUSSELL: ... The important thing is this that there was a lot of – when this applicant gave evidence on the sentencing proceedings his cross-examination was constantly peppered by the Crown say[ing], "That's not in the agreed facts, that's not in the agreed facts, that's not in the agreed facts" and so forth. LONERGAN J: That's not surprising, is it though, Mr Russell? RUSSELL: No, with great respect, your Honour, in a practical sense, in a practical sense the Crown would not agree to facts based solely on what the offender saw, heard or perceived. The offender is entitled to, the Crown is not going to-- LONERGAN J: Then there shouldn't have been agreed facts, Mr Russell. HOEBEN CJ at CL: Exactly. Let's not go down this path. You either have agreed facts or you don't. He had agreed facts, he was bound by them. If he wants to add those and supplement them then he is going outside the agreed facts and the Crown is entitled to object. What point are you making here? RUSSELL: The point I am making is that the offender's, now applicant's, evidence that he gave before the Court was treated with a lot of disrespect. HOEBEN CJ at CL: You say that. RUSSELL: And circumspection because it didn't sit neatly with the agreed facts. ..." 1. The impression with which I am left from this exchange, combined with the transcript of the sentencing hearing, is that counsel appearing for the applicant was and continues to be unaware of the effect of his client agreeing to facts for the purpose of sentencing. In particular, it is difficult to understand how on the same morning, the applicant actually signed in the presence of his lawyers the document which had previously been negotiated by them with the Crown, and his counsel then articulated and maintained a case which went materially beyond that document. 2. The point of signing the Agreed Facts was for that agreement to bind the applicant and to form the foundation of the sentencing discretion. It is ordinarily quite wrong for submissions to be made contrary to facts to which an offender has agreed. There can be no proper basis for criticism if evidence is adduced contrary to what the offender has agreed (and in the present case, had signed with legal assistance earlier that morning) for that evidence to be tested against the document to which the offender had adhered. The applicant's evidence 1. The applicant made an affidavit in which he said how disgusted he was with himself for his behaviour, how ashamed of himself he was and how deeply sorry he was for the pain and suffering he had caused. He said that there was no excuse for what he had done. He referred to the impact his behaviour had on people he had never met. He said he wished he could see them and apologise to them. As the sentencing judge observed, these unqualified expressions of responsibility were in contrast with the submissions made on his behalf concerning provocation. 2. He said that in addition to the people he had threatened or injured, his actions had had a deep impact on his family. The 240 days he had spent in custody had been a period during which he had been unable to work and provide for his family, especially his son. He said that his son had been a good student, and that prior to spending time in gaol he had been able to provide him with emotional support and encourage him towards achieving good grades. He said that "he is a boy who can lack the self-esteem and this can adversely affect the level of effort", and that it was the applicant's own fault that his grades had gotten so bad. He said that "I am meant to teach him how to be a man and how to behave in this world. I have failed at this". 3. He confirmed that he had been seeing the psychologist Mr Cohen to address those issues, including by providing him with anger management counselling. He confirmed the accuracy of what he had told Mr Cohen. 4. He had been able to find work after being released on bail. He concluded: "I promise that I will continue to work on myself to ensure that I never end up here again. I have worked hard since leaving gaol to be a better person and be a role model to my young son who relies and looks up to me." 1. The applicant gave evidence at the sentencing hearing. Much of this was led from him in chief about the events preceding the offending conduct, which was consistent with the written submissions, but contrary to, or omitted from, the Agreed Facts. 2. The applicant elaborated on the circumstances preceding each of the instances of offending conduct. He said that he got upset when told to leave the hotel by Ms R "Because she was talking down to me and it felt like everyone was just putting shit on me all the time". He said that he was told by an unknown person that Mr H was a "paedophile", that he asked Mr H whether he was a paedophile and that Mr H "looked in my eyes and didn't say anything", and in response the applicant thought "Why is he not denying it? Because if it was me I would deny it and I would be angry that someone was asking me about that". In relation to Mr M, he said that he was "jerking the car forward as if he was going to run me over", and that "his girlfriend told me to get the fuck off the road", and that Mr M "started going off at me" and told him to get off the road. 3. Almost all of this was absent from the Agreed Facts. In cross-examination, the applicant agreed that he had a poor recollection of the events of that afternoon, having had between 15 and 20 full strength beers since 10am that morning (in examination-in-chief, he had said that he had moved on to "bourbons" – presumably a reference to the pre-mixed drink he poured onto Ms A). The cross-examination dwelt on the absence of the exculpatory material from the Agreed Facts. The applicant accepted that particularly after leaving the hotel, having had 15 to 20 drinks of full-strength beer, he really had no recollection of events. 4. In the course of that cross-examination, there was the following objection: "RUSSELL: Well, your Honour, I must object to this, your Honour, with great respect. Look, my friend is going through nit-picking the facts. Now, we worked for months to try to get the Crown to a position where they would withdraw charges which weren't appropriate and so forth and there was to-ing and fro-ing about facts and things of this nature over many, many months. I was involved with it, my instructing attorney was, the person with it before him was involved with it as well. We can't get the facts down to a document that reads like it's been drafted by an 18th Century [gentleman], we can't. We agreed generally to the elements of the offence that the Crown puts forward. All these other little bits and pieces about whether he strapped the can on the side of the car or he didn't, it's just confetti, with great respect. HIS HONOUR: Well, except they're matters to which your client has signed and has therefore agreed and has adopted and which differ to his evidence, so it's a permissible line of cross-examination. RUSSELL: I understand, your Honour, but, look as long as your Honour understands in the exercise of trying to get this thing into some shape for a plea of guilty, we did our best to try and get a set of facts together-- HIS HONOUR: Well, I have no knowledge of any of that. All I know is there's some facts that I'm to sentence your client on are those to which he has signed and adopted and the Crown's entitled to explore variations between his evidence and the facts as he has agreed in order that it may affect his reliability as a witness presumably. RUSSELL: Very well your Honour. CROWN: And your Honour in the Crown's submissions where my understanding is that my friend may be seeking to make a submission in relation to an element of provocation being involved in these offences and I understand that it is this exact portion of the evidence that my friend might be seeking to rely upon." The psychologist's report and the sentencing assessment report 1. The applicant was 31 years of age at the time of sentence. He had a minor criminal history which the sentencing judge considered irrelevant. 2. A history taken by a psychologist stated that the applicant was adopted at 6 weeks and had had no contact with his birth parents, which he stated was distressing for him. Since leaving school he had worked in asphalting, vinyl laying and steel stressing. The report stated that the applicant "has a number of diagnosable mental illnesses which range from alcohol abuse to intermittent explosive disorder". He purported to apply "the Psychiatric Handbook DSMV", presumably a reference to the 5th edition of the Diagnostic and Statistical Manual of Mental Disorders prepared by the American Psychiatric Association. Mr Cohen held a Bachelor's Degree in Arts, with honours in Psychology, and a Master's Degree in Psychology. There is nothing to suggest he had any medical or psychiatric training. 3. According to Mr Cohen's report, the applicant had been in a relationship for three years between 2007 and 2010. There was one child of that relationship who was nine years old at the time of sentencing. The applicant had a close relationship with the child. There was a period of separation where the applicant did not see the child for extended periods in the context of asserted breaches of family court access orders. Court intervention was required to restore the applicant's access rights. The sentencing judge noted that these matters had a negative impact on the applicant's mental health due to the stress and cost of the legal process. 4. The applicant remained in custody for 240 days and was then released on bail. During his time in custody the applicant's child's school performance suffered and the applicant could not provide emotional support for the child. 5. The applicant reported to Mr Cohen that the circumstances around the offending behaviour were that he had "been drinking from 10 am, trying to relax from the family legal issues", that he "went into a rage", and that he rarely drank but does "binge from time to time, ten to twenty-full strength beers". 6. The report was tendered without objection, but accompanied by a warning that it should be given "such weight as it deserves". 7. In addition to the Mr Cohen's report, a sentencing assessment report from an officer at Community Corrections at Wyong was tendered. It was more guarded in its assessment of the applicant's remorse and prospects of rehabilitation. It also contained some mistakes, and led to its author (who had almost finished a criminal justice degree) giving evidence and being cross-examined. The report stated "Mr Taitoko has a minimal criminal history, although appears to show an escalation to his offending behaviour". Its author confirmed that he had not meant to suggest that over time the offending had been increasing on some sort of progressive scale, but merely that the current offending was worse than anything that had preceded it. 8. The report also recorded that the applicant had "failed to identify the causes to his aggression", stating that he was "too intoxicated to remember", and that the applicant "appeared unable to demonstrate any insight to the impact of his offending upon the victim". The reasons of the sentencing judge 1. The sentencing proceedings evidently went for most of Friday 2 November 2018 (the short cross-examination of the author of the sentencing report is recorded as starting at 3.10pm, after which submissions resumed). The judge reserved his decision until 23 November 2018. On that day, the sentencing judge summarised the offences to which the applicant pleaded guilty, the evidence and read extensively from the Agreed Facts. His Honour noted that the applicant's counsel had "attempted to downplay the responsibility of his client by suggesting there was some provocation", and said that he would return to this. His Honour rejected the factual case which had been sought to be established going beyond the Agreed Facts, and no issue was taken with this in this Court. 2. The sentence judge identified the elements of the offences (one aspect of which is relevant to proposed ground 2) and then addressed objective seriousness at [32]-[42]. What was said in that section concerning the photographs is relevant to proposed grounds 4 and 5. Relevantly to proposed ground 7, his Honour rejected the submission based on provocation "without any hesitation". 3. The sentencing judge regarded the intimidation offence as falling at the "lower end of the mid-range", the common assault was in the low range, and the two counts of wounding both fell in the mid-range. 4. In relation to the applicant's subjective case, the primary judge summarised what had been reported to Mr Cohen and confirmed by the applicant in evidence. His Honour referred to the references which related to proposed ground 8, and then referred to his remorse, as follows: "Contrary to submissions made by his counsel, he accepted there was no excuse for the offending behaviour. In that respect, the reference to submissions made by counsel is, again, a reference to the unfortunate submission made that there was some degree of provocation which triggered the conduct of the Offender." 1. The sentencing judge addressed the conflict in evidence between the offender and the author of the sentencing assessment report, concluding: "Both witnesses appeared to be truthful and attempting not to mislead the Court. I find that the Offender does have some limited insight into his offending behaviour, although plainly that was not communicated to [the author of the report], whose opinion I otherwise accept." 1. The sentencing judge then addressed Mr Cohen's report, and his lack of relevant expertise, and the role of mental illness in sentencing, to which reference will be made when dealing with proposed ground 9. His Honour's conclusion was that he treated Mr Cohen's report "with great caution, particularly in the absence of any contemporaneous medical records suggesting the Offender was suffering from any psychiatric condition at the time". 2. The sentencing judge made a finding of good character, noted the evidence of remorse, found that the prospects of successful rehabilitation were "just moderate", with moderate likelihood of re-offending. His Honour found special circumstances, and imposed an aggregate sentence for reasons to which I shall return. The proposed grounds of appeal 1. The first proposed ground is that the sentence was manifestly excessive. That ground reflects what Dixon, Evatt and McTiernan JJ said in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40: "It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." 1. In Dinsdale v The Queen (2000) 202 CLR 321 at 325; [2000] HCA 54, Gleeson CJ and Hayne J pointed out that manifest excess "is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive". 1. However, it has been said that the identification of specific error may assist to explain why a sentence is manifestly erroneous (see, in the context of Crown appeals on the basis of manifest inadequacy, R v Harris [2015] NSWCCA 81 at [46] and R v AB [2017] NSWCCA 88 at [58]). It follows that it is appropriate first to address the various grounds involving patent error. Ground 2 – His Honour failed to consider, in accordance with authorities, that the two (2) counts of reckless wounding which involved a breaking of the skin by a punch were woundings in a technical sense. Ground 3 – His Honour failed to consider the two medical reports Exhibits 8 and 9 which were tendered in the case and which demonstrated that the injuries the subject of the two wounding counts were not serious. Ground 4 – His Honour gave unreasonable weight to the two [sic] photographs Exhibit C which were tendered over initial objection. Ground 5 – His Honour unreasonably found that the two wounding counts fell at the middle range of objective seriousness. 1. These four related grounds go to the same issue, namely, the way in which the primary judge assessed the objective seriousness of the two most serious charges, the counts of reckless wounding. 2. Proposed ground 2 was not based on any submission made in advance of or during the sentencing hearing. After his Honour had reserved his decision, counsel for the applicant supplied a further two-page submission, dated 8 November 2018. This occurred without leave being given or sought, although seemingly with the consent of the Crown. In this Court, Mr Russell maintained that he was entitled to take that course. 3. It seems necessary to reiterate what was put by Mason J in Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 at 258; [1981] HCA 20: "The impression, unfortunately abroad, that parties may file supplementary written material after the conclusion of oral argument, without leave having been given beforehand, is quite misconceived. We have to say once again, firmly and clearly, that the hearing is the time and place to present argument, whether it be wholly oral or oral argument supplemented by written submissions." That strong language was reiterated by McHugh J in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [28]-[31]; see for more recent authorities Wollongong City Council v Papadopoulos [2019] NSWCA 178 at [49] and, in this Court, Nguyen v R [2008] NSWCCA 322 at [27]-[32]. 1. It would have been open to the sentencing judge to ignore the unsolicited submission, supplied without leave and unaccompanied by any application for leave. However, his Honour said that he had received the supplementary submission, marking it MFI 3, and considered it. 2. The supplementary submission devoted precisely one sentence to this point, as follows: "A split lip ([Mr M's] 'wound') or in the case of [Mr H] (a split eyelid) caused in each case by a punch, is a 'wounding' only in the most technical sense: see R v Shepherd [2003] NSWCCA 351 at [32] per Kirby J." 1. The sentencing judge said that he had regard to the elements of the offence, and correctly observed that "wounding" occurred as a result of the breaking or cutting of the interior layer of the skin and the breaking of the outer layer, and that the injuries suffered by Mr M and Mr H were wounding. 2. That is entirely correct. "Wounding" remains undefined in the Crimes Act, but in Shepherd at [31] Kirby J referred to authorities to the effect that a wounding was generally "the infliction of an injury which breaks the continuity of the skin". 3. It by no means followed that the wounding of Mr H and Mr M was wounding in "the most technical sense". The laceration suffered by Mr H to his upper eyelid was so deep that it exposed muscle and required five stiches. Mr M's laceration above his lip extended almost to his nose and required closure. Neither wound is fairly described as a "split lip" or a "split eyelid", and both required medical attention. 4. The sentencing judge quoted the records of the injuries in Mr H's discharge referral from Wyong Hospital, and in Mr M's presentation at the hospital, expressly. Thus the primary judge considered the elements of "wounding" and explained, contrary to what was implicit in the supplementary submission supplied by the applicant's counsel, how the injuries sustained by each of Mr H and Mr M were more serious than a "technical" wounding. 5. The applicant tendered two medical reports without objection, towards the conclusion of the hearing, saying that "I forgot to tender two medical reports". Thereafter, no mention was made in oral submissions (or in the supplementary written submissions) of either report. 6. That is an unpromising start to a proposed ground 3, which is based on a failure to consider the two documents. Ordinarily, in order to make out such a ground, it is necessary for the judge exercising a discretion to have been directed to the documents. In Hanna v Environment Protection Authority [2019] NSWCCA 299, Macfarlan JA (with whom Walton and Bellew JJ agreed) said at [35]-[37]: "On appeal the prosecutor referred in this context to the approval by the plurality in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42 at [120] of the proposition that: " … when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless they are fundamental and obvious." This principle has been applied in subsequent civil decisions, including Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61 at [5] and [73]. This principle is reflected in the well-established reluctance of the Court of Criminal Appeal to entertain on sentence appeals points that were not taken in the court below. In a decision applied in many subsequent cases, Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [81], Johnson J aptly said that a sentence appeal was "not the occasion for the revision and reformulation of the case presented below" and referred to the need for "exceptional circumstances" to exist before the Court will entertain arguments that have not been put at the sentencing hearing. No such exceptional circumstances exist in the present case." 1. Both reports were in familiar form, recording care administered by nursing and medical staff upon each patient. Neither report demonstrates that the injuries suffered by Mr H or Mr M were not serious. Contrary to one matter on which reliance was placed, the fact that a nurse recorded Mr H as saying that he was "happy to wait in the waiting room" at the hospital does not detract from the seriousness of his injury (and in any event, little turns on that without knowledge of the circumstances of the other patients who were waiting in the Emergency Department). It was no part of the function of those documents to record an opinion of the seriousness of the wounding. It is true that both documents confirm that no complicated surgical procedure was required, however, there was and is no dispute as to that. 2. Turning to proposed ground 4, the complaint about the sentencing judge's reliance on the photographs, as previously noted, it is wrong to assert that the photographs had been tendered over initial objection. So far as the transcript records, no objection was raised to their tender at any stage during the sentencing hearing. Further, there were in fact three photographs, rather than the two to which the ground refers. 3. The sentencing judge had regard to the photographs in [33]-[35] of his reasons, dealing with objective seriousness: "Next, one has regard to the particular circumstances of the offending in assessing the overall criminality. There are three factors particularly relevant to assessing the objective gravity of personal violence offences. They are the extent and nature of injuries, the degree of violence and the mental element of the offence. During the sentencing proceedings, the Crown tendered photographs of the victims' injuries (Exhibit C). The photographs show that the extent and nature of the injuries inflicted on the wounding victims was not in any way trivial and that they required hospital medical attention. The photographs are in evidence and an attempt to describe them would not do them justice, save to note in relation to [Mr M] he presents with what appears to be a deep laceration above his lip on the right side, almost reaching the point of his nose. In relation to [Mr H], the photographs relating to the injury to his right eye are quite horrifying. Whilst I acknowledge that those photographs were taken at a time when acute care had been provided to the victims of this Offender's conduct, it is apparent that the attacks were extremely violent and the consequences extremely severe." 1. It will be seen that the sentencing judge had regard to all three photographs in conjunction with the Agreed Facts. There was no error in doing so. In particular, the wound suffered by Mr M does indeed extend upwards of his lip towards his nose. The photographs served the useful purpose of clarifying what had been agreed, namely, "Laceration/wound above right side of lip – requiring closure". 2. True it is that care must be taken when photographs are deployed. I regard it as self-evident that photographs (and, especially, the reproductions of photographs in appeal books) can contain obvious distortions of distance, colour and shape. They can also contain non-obvious distortions of distance, colour and shape. I sought to explain this in Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 at [213]-[224], including by giving an example central to that appeal: the parallax error in photography of horses travelling around an oval racetrack. 3. The care which must always be taken in the use of photographs is inherent in their nature, as has regularly been observed in judgments. I would not read those observations as establishing some rule of law or principle of evidence; cf Amante v R [2020] NSWCCA 34 at [4]-[8]. Read fairly and in context, the statements in decisions such as in Angel v Hawkesbury City Council [2008] NSWCA 130 at [69]-[72] and Blacktown City Council v Hocking [2008] NSWCA 144 at [167]-[172] relate to the particular use of the particular photographs in those cases (respectively, photographs which distorted distance, taken after the event, sought to be used to displace the testimonial evidence of witnesses, and photographs of the lip of a pit used to establish its condition seven or eight years earlier), rather than some general rule or principle. Each case will depend on the particular photograph and the particular purpose for which it is sought to be deployed. 4. Ultimately, the applicant's submission was that: "his Honour, combining the photographs, not dealing properly in my submission with the medical evidence, exhibit 8 and 9, considering as he said that the consequences were extremely severe, is really an exaggeration of what were the actual injuries that were occasioned." 1. There was no misuse of the photographs, read with the Agreed Facts as to the treatment required, in determining the nature of the wounding inflicted by the applicant upon Mr H and Mr M. The photographs were properly able to be deployed to refute the applicant's submission that Mr M's injury was "in essence a split lip" and to explain the documentary evidence that there was a "Laceration/wound above right side of lip – requiring closure". 2. The submissions advanced in support of proposed ground 5 were sparse – two sentences in the written submissions, and three sentences in oral submissions. 3. In writing, the applicant pointed to a "specific concession" by the Crown at trial. The concession was that these aspects of the wounding fell "just below the middle-range". The sentencing judge then sought clarification, and it was confirmed that this meant "low mid-range, the low end of the mid-range", and agreed this was an artificial way of describing the offending. In oral submissions, this was all that was said in support of this proposed ground. 4. The applicant also relied, in support of this proposed ground, on a concession that time served was at the low end of available sentencing outcomes. That concession in no way casts doubt upon his Honour's assessment of objective seriousness. 5. The question of objective seriousness is quintessentially a matter for the sentencing judge (some of the authorities are collected in Lees v R [2019] NSWCCA 65 at [55]). No error has been shown, or has come close to having been shown, in the use of evidence bearing upon the woundings inflicted upon Mr H and Mr M, or upon the assessment of the objective seriousness of these two offences. 6. These proposed grounds, the first of which was based on submissions which should not have been made to the sentencing judge, the second of which was based on failing to have regard to something in respect of which no submissions were made to the sentencing judge, the third of which is wrong as a matter of fact about there being an "initial objection", and none of which has any underlying merit, fall short of the standards this Court expects of submissions advanced by counsel. I propose that leave should be refused to rely on any of proposed grounds 2, 3, 4 and 5. Ground 6 – His Honour failed to consider the argument raised that the charges could have, and should have, proceeded in the Local Court. 1. The applicant submitted orally and in writing that the matter could have proceeded in the Local Court. He also conceded that the prosecutorial discretion to proceed in the District Court was unreviewable. In this Court Mr Russell came close to not pressing this ground, introducing his submissions with the words "I don't wish to spend too much time on that particular point" and nowhere developing how it amounted to error. 2. There were four victims, all of whom were merely going about their ordinary business on a Wednesday afternoon. Two received injuries requiring their being admitted to hospital, one was threatened with death accompanied by damage to the hotel door, and one was assaulted inside the car in which she was a passenger. Although none of the offences was strictly indictable, there was sound reason for the prosecutorial decision to proceed in the District Court. 3. This offending is a long way removed from the "rare and exceptional" set of circumstances to which Johnson J referred where the possibility of summary disposal is relevant to the sentence imposed by the District Court: Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [83]; see also Turner v R [2016] NSWCCA 208 at [24]-[34]. Rather the position is as stated by Basten JA in Baines v R [2016] NSWCCA 132 at [13]: "The court should impose the appropriate sentence for the offence as proved, within the limits of the sentencing court's jurisdiction and discretion." 1. I would not grant leave to appeal on this barely pressed ground. Ground 7 – His Honour misunderstood the submissions of counsel on sentence regarding the issue of provocation and, in doing so, sought to interpret those submissions as excusing rather than explaining the conduct. In doing so his Honour unreasonably counted this against the offender. 1. It was said that various extracts from the remarks on sentence: "tend to reveal a patent annoyance at counsel for making remarks which his Honour categorised as victim blaming, when a balanced assessment of the submissions made in writing and orally only went to explain his conduct but not to excuse it, and particularly not to blame any victim". 1. In my opinion, this criticism is without foundation. 2. The written and oral submissions have been reproduced above. The proceedings were listed for the purpose of imposing sentence. It was surely so obvious that it did not require explicit statement that one question was whether the applicant by his counsel would seek to establish the mitigating factor in s 21A(3)(c) of the Crimes (Sentencing Procedure) Act, namely, "the offender was provoked by the victim". "Provocation" has a number of meanings in criminal law and in general usage. It may operate to reduce murder to manslaughter, as the applicant stated, although since the amendments effected by the Crimes Amendment (Provocation) Act 2014 (NSW) "extreme provocation" as defined in s 23(2) of the Crimes Act is required. "Provocation" is a term which is used much more loosely outside the courtroom. But the matter was listed for sentence, and when counsel made written and oral submissions alleging provocation in terms, it was to be expected that they would be understood as directed to s 21A(3)(c). 3. The natural way of reading the applicant's written submissions, supplied the previous day, is that they were an attempt to make out a case that the applicant's offending was provoked by the conduct of the hotel manager ("[Ms R] approached the offender in an aggressive manner" and "there was some element of provocation towards the offender"). The claim that "instructions are, and the facts appear to support, the offender[']s belief that the car which contained both [Ms A] and [Mr M] had tried to run him over", such that "some element of provocation resulted in the offender acting as he did", likewise are naturally read as an attempt to make out the mitigating factor in s 21A(3)(c). 4. True it is that the submission was advanced that another man, not Mr H, told the offender that Mr H was a paedophile, and that nothing in the applicant's submissions pointed to Mr H doing anything. The written submissions refrained from asserting provocation as a mitigating factor in respect of that offence. However, in oral submissions, Mr Russell maintained that provocation nonetheless occurred. 5. All of this presented the sentencing judge, and the Crown, with the prospect that although provocation as a mitigating factor was entirely absent from the Agreed Facts, it was sought to be advanced at the sentencing hearing. 6. The gravamen of this ground is that the sentencing judge misunderstood the repeated references in writing and orally to "provocation", which were intended in some way falling short of a mitigating factor, to "explain [the applicant's] conduct but not to excuse it", as it was put. 7. The transcript shows that the primary judge articulated his concerns in a lengthy exchange with the Crown. Counsel for the applicant was thereby given some notice of the difficulties he would face in establishing provocation (a) based on the absence of any suggestion in the "agreed facts" and (b) in relation to the wounding of Mr H, where the claim was patently hopeless. 8. Nonetheless, having heard that exchange, counsel confirmed that he was asking for findings of provocation in relation to the entirety of the offending. The hearing proceeded on that basis, and evidence was adduced in chief and tested in cross-examination. 9. The sentencing judge rejected all aspects of provocation, saying: "None of the Offender's victims, of which there were four, did anything to incite the Offender to behave in the manner in which he did. His offending was entirely voluntary. Plainly, his conduct was fuelled by his intoxication. Such behaviour is socially reprehensible and calls for firm denunciation. Blaming the victims for the acts of the Offender is an unacceptable attitude completely at odds with community expectations and standards and to the extent that that submission is advanced by counsel for the Offender, I reject it." 1. This led to the following submission being put to this Court: "The provocation that I mentioned, I mean, we can talk about provocation, we can talk about a large P-provocation, something which might reduce murder to manslaughter. We can talk about a small P-provocation, something that just explains the trigger for this person's conduct. It was meant in no other way than that, not to victim blame or anything of that nature but just to explain what triggered this man when there had been a period, a considerable period six hours plus where he had been drinking and there had been no incident, no incident suggested, whatsoever, in that six hours. There was just something that triggered it and which may tend to explain not to blame but to explain his conduct. But his Honour took particular offence, calling it the unfortunate submissions of counsel and so forth which really didn't understand the way in which this was being put." 1. I did not understand the applicant to contend that there was any error in failing to make a finding in accordance with s 21A(3)(c). Indeed, I confess that I do not really understand what this ground is directed to, bearing in mind that the sentencing judge expressly relied on the testimonial evidence of the applicant which accepted that he was entirely at fault for his conduct, and distancing that evidence from the submissions made on his behalf. 2. Insofar as this ground is a challenge to the criticisms expressed by the sentencing judge of the submissions made by counsel, I would reject it. "Unfortunate" was a restrained and accurate description of counsel's submissions on provocation. 3. This proposed ground is without foundation. It does not warrant a grant of leave. Ground 8 – His Honour unreasonably devalued the unchallenged reference material tendered on behalf of the offender. 1. This proposed ground was based on various references which had been placed before the Court, of which the sentencing judge said, correctly, that they all spoke of the surprise about the offending behaviour, the applicant's frustration with the Family Court proceedings, and that he was not usually an aggressive person. The sentencing judge added "Of course, all unsworn and untested statements of that type must be treated with circumspection". 2. It was put in writing that the references were tendered by consent and without any application to cross-examine any of the referees, and that no submission was made inviting their being treated with circumspection. This ground was not significantly developed in oral submissions. 3. I see no error in what the sentencing judge said. Moreover, there was a basis for circumspection. The first reference refers to only three of the offences, as though that was the entirety of the offending conduct, and even then it does not suggest that the referee knew the facts underlying even those three offences. The second, third and fourth references do not disclose that the referees were aware of the details of any of the offending conduct. 4. Further, the sentencing judge made a finding of good character. It has not been explained how, in light of that finding, the statement by the sentencing judge could have had any impact on the sentence imposed. 5. I would not grant leave to appeal on this ground. Ground 9 – His Honour failed to give appropriate weight to the unchallenged psychologist report tendered on behalf of the offender. 1. Mr Cohen's report is mentioned above. It is plain that he expressed opinions regarding – and indeed purported to diagnose – psychiatric conditions. He was not qualified to do this. 2. As was observed during the hearing in this Court, this is far from the first occasion where this has occurred. In R (Cth) v Petroulias (No 36) [2008] NSWSC 626, Johnson J observed at [164]: "A number of psychologists gave oral evidence. In approaching their evidence, I keep in mind that it is important that psychologists do not cross the barrier of their expertise. It is appropriate for persons trained in the field of psychology to give evidence of the results of psychometric and other psychological testing, and to explain the relevance of those results, and their significance so far as they reveal or support the existence of brain damage or other recognised mental states or disorders. It is not, however, appropriate for them to enter into the field of psychiatry: R v Peisley (1990) 54 A Crim R 42 at 52." 1. Those views were endorsed in this Court in WW v R [2012] NSWCCA 165 at [58]. That is not to deny that in some cases a psychologist's opinion may be persuasive: see for example Masters v R [2019] NSWCCA 233 at [11]-[12]. Where, as in the present case, a psychologist's report is tendered without objection, then it formed part of the evidence before the sentencing judge to be given such weight as it deserved, as Johnson J observed in Jung v R [2017] NSWCCA 24 at [41]-[42]. 2. If the reference to "unchallenged psychologist report" is intended to convey that the sentencing judge's caution took the applicant by surprise, it is not borne out by the record. The exchange between the sentencing judge and the Crown to the effect that "the Court should treat [it] with caution" and that although no objection was taken to its admission, it should be given "as much weight as ... it deserves" make it clear that this was disclosed during the hearing. 3. The sentencing judge was familiar with the approach stated in the authorities mentioned above. Under the heading "Mental Health", his Honour addressed the issue: "Courts, of course, are always cautious about accepting and acting upon the opinion of a psychologist as to matters of a psychiatric nature, particularly when a report is prepared well and truly after the event for the purposes of the sentence hearing. The Offender was seen by Mr Cohen on 13 October 2018 for the purpose of preparing a report addressed to the Court. There was no suggestion that he had treated the Offender or even seen the Offender at any time proximate to the offending. His opinion, to the extent to which it is retrospective, is approached with some caution. Nevertheless, the fact that the report exists requires the Court to have regard to the relevance of psychiatric illness in the context of the sentencing exercise. The fact that an Offender was or is suffering from a mental disorder or disability, either at the time of the commission of the offence or at the time of the sentencing, may be taken into account at sentencing. An Offender's mental condition can have the effect of reducing a person's moral culpability and matters such as general deterrence, retribution and denunciation may have less weight." 1. The sentencing judge went on to make a specific finding relevant to those considerations, concluding: "I do not accept in this particular case that matters relating to deterrence, retribution and denunciation do have less weight and the sentence called for on this occasion is one that denounces the violent unprovoked conduct of the Offender, who engaged in a violent rampage on the day of his offending." 1. His Honour expanded on his bases for that finding in an orthodox way: "I have had regard to the comments of the New South Wales Court of Criminal Appeal in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, as well as the comments of the High Court in the matter of Muldrock v The Queen (2011) 244 CLR 120, [53]-[54] in particular. Sentencing an Offender who suffers from a mental disorder commonly calls for a "sensitive discretionary decision" that involves the application of the particular facts and circumstances of the case for the purposes of criminal punishment set out in Veen v The Queen (No 2) (1988) 164 CLR 465 and later set out in the Crimes (Sentencing Procedure) Act. As noted, the Court of Criminal Appeal has expressed some concern where a psychologist, and not a psychiatrist, purports to diagnose the existence of a mental illness. I note the decision of WW v R [2012] NSWCCA 165 at [58]-[60] and Lamb v R [2015] NSWCCA 143 at [78]-[82] and [90]. For these reasons, I treat the opinion of Mr Cohen with great caution, particularly in the absence of any contemporaneous medical records suggesting the Offender was suffering from any psychiatric condition at the time of the subject offending." 1. The applicant framed his submissions in support of this ground as follows: "His Honour did not provide any reasons for his rejection of the general sentencing principle set out in the decided cases. Further, he did not state whether his acceptance of the mental illness impacted on the moral culpability of the offender." 1. I do not accept the submission. The extracts reproduced above are ample reasons for the approach taken by the sentencing judge, which accorded with the authorities. The sentencing judge expressly referred to the possibility that mental illness impacted upon the applicant's moral culpability. This was a matter as to which the applicant bore the onus. It is clear that the sentencing judge regarded that as not established by the psychologist's report prepared more than 20 months after the event. There was no error in that course. 2. While I would grant leave to appeal on this ground, it is not made out. Ground 1 – The sentence imposed by the court is manifestly excessive and another sentence is warranted at law. 1. In order to succeed on this ground the applicant must establish that the sentence was "unreasonable" or "plainly unjust": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. There is no single correct sentence and sentencing is not a mathematical exercise, and so this ground proceeds on the basis that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principle. This Court will not interfere with a sentence merely because it may have exercised its discretion differently. 2. Relevantly to the application of this ground to an aggregate sentence, Bathurst CJ said in Kerr v R [2016] NSWCCA 218 at [114] that: "As R A Hulme J pointed out in JM v The Queen [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40], the principal focus in the determination of a ground alleging manifest excess in the case of an aggregate sentence will be whether the sentence reflects the total criminality. Further, the indicative sentences recorded in accordance with s 53A(2) of the Sentencing Procedure Act are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence. However, the fact that the indicative sentences are excessive does not necessarily mean that the aggregate sentence is excessive." 1. The sentencing discretion reposed in the District Court in this case was far from straight-forward, having regard to the severity of the individual offences, their randomness and their proximity in time, the number of victims, and the subjective case which was not without force. That task was not assisted by the complications introduced by the course taken in the proceedings. 2. The sentencing judge mentioned totality, but ultimately imposed a sentence of 4 years, reflecting a starting point of 5 years and 4 months, for what was in substance a single incident over slightly more than an hour on a Wednesday afternoon. 3. Conscious as I am of the physical and psychological harm to the victims, I nonetheless conclude that an undiscounted head sentence of imprisonment for a term of 5 years and 4 months, imposed on a young man of good character, with a substantively clean criminal record, who had never previously been sentenced to a period of imprisonment, who gave evidence of remorse and who had fair prospects of rehabilitation, was too high. 4. I am confirmed in that conclusion by some of the reasoning used by the primary judge when imposing the aggregate sentence. 5. The sentencing judge provided indicative sentences of 9 months for the intimidation, 2 years for each of the two woundings, 6 months for the common assault and 3 months for the destruction of property. The sentencing judge was conscious that there needed to be a deal of notional concurrency, having regard to the need for totality. His Honour also said: "The Court has discretion to aggregate sentences when sentencing for multiple offences, that is, the sentence can be partly concurrent and party cumulative. The purposes of aggregate sentencing is to avoid the imposition of a sentence for two or more offences which, when viewed as a total sentence, is not crushing. Some offences, for example, those involving a substantial temporal disconnect or of a completely different nature, may not permit an aggregate sentence". I respectfully disagree. 1. Less importantly, I respectfully do not agree that there are cases where there is a substantial temporal disconnect or a difference in nature which preclude the power conferred by s 53A, although of course a sentencing judge may choose not to deploy that power. The only prerequisite to the exercise of the power conferred by s 53A is that an offender is being sentenced "for more than one offence". 2. More importantly, I respectfully disagree with the second sentence from the passage reproduced above. In principle, precisely the same effective sentence may be imposed whether or not an aggregate sentence is employed. The purpose of aggregate sentence is not to achieve a lesser effective sentence than would have been imposed by a traditional individual sentence structure. The purpose may be seen in what has recently been referred to as the "seminal explanation of the aggregate sentencing provisions" in JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [39]-[40] (cited in Vaughan v R [2020] NSWCCA 3 at [92]). It is not necessary to reproduce the entirety of that passage. It is sufficient to note that the purpose was not to enable a sentence to be imposed which was not "crushing", and that the statement of principle commences with the observation that: "Section 53A was introduced in order to ameliorate the difficulties of applying the decision in Pearce v The Queen [1998] HCA 57; 194 CLR 610 in sentencing for multiple offences: R v Nykolyn [2012] NSWCCA 219 at [31]. It offers the benefit when sentencing for multiple offences of obviating the need to engage in the laborious and sometimes complicated task of creating a 'cascading or "stairway" sentencing structure' when the principle of totality requires some accumulation of sentences: R v Rae [2013] NSWCCA 9 at [43]; Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [231]; Behman v R [2014] NSWCCA 239; R v MJB [2014] NSWCCA 195 at [55]-[57]." 1. Later in his reasons, the sentencing judge stated that "the total indicative sentence, after discount, is five years and six months". It is unclear what purpose that statement was intended to serve. However, it does highlight that the effect of the degree of notional concurrency reflected in the indicative sentences and an aggregate sentence of 48 months was that only 18 months of a total of 66 months. 2. There is no rule that proximity in time necessarily leads to large degrees of concurrency for the sentences imposed for separate offending in a short time period. However, in the present case, the entirety of the offending occurred in slightly more than an hour, all following the applicant's sustained drinking from 10 am that morning, and all was of the same general nature, although the harm was directed upon different victims. It is clear that this is a case where a deal of the criminality in each offence is best seen as comprehending and reflecting the criminality of the other offences, in accordance with what was said in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]: "[T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both." 1. The same approach applies when ensuring that an aggregate sentence accords with totality. An example may be seen in this Court's decision in Berryman v R [2017] NSWCCA 297, and indeed the reasoning at [57] is apposite, although in Berryman there were were two, rather than four, victims: "Although the sentencing judge referred to Cahyadi, more than the very modest degree of notional accumulation of the offences committed in the afternoon of 12 July reflected in the aggregate sentence is required. The offending conduct was discrete, occurred in two separate places, and with different victims. However, this is plainly a case of a course of conduct within a short time frame. All four offences were committed in what was at most a 90 minute period and in all probability less than 60 minutes. All occurred after the abuse of alcohol and a prescribed drug following the applicant attending the funeral of a family member. That is not to excuse the conduct or to minimise its criminality, but to explain that it is fairly to be seen as a single course of conduct." 1. So too here. On any view, the first and fifth counts, which occurred in the hotel, happened within seconds of each other. On any view, so did the third and fourth, the wounding of Mr M and the assault upon Ms A. True it is that there was separate conduct giving rise to the separate offences, but each was part of the same encounter. 2. More generally, all of the offending, over a period of just over an hour, is fairly seen as a single course of conduct in a short timeframe. When this is borne in mind, the sentence of 4 years imprisonment, after a discount of 25% for the guilty pleas, is manifestly excessive. Orders and resentence 1. For those reasons, there should be a grant of leave, confined to grounds 1 and 9, the appeal should be allowed, the sentence imposed on 23 November 2018 quashed, and in lieu thereof the applicant must be resentenced. 2. While in custody, in June 2019 the applicant was found in a fight with another inmate, and was reported to be aggressive during the inquiry, and punished by two weeks off buy-ups. According to the evidence provided to this Court, that was the only breach of discipline during his imprisonment. Subsequently, in September 2019, the applicant completed the EQUIPS Aggression Program. He has been classified, since a week after commencing his term of imprisonment, as C2 Minimal Security. In my view this evidence, which was supplied to the Court on the usual basis in the event that the sentencing discretion fell to be re-exercised, does not materially alter the position. 3. I would not interfere with the assessment by the sentencing judge of the objective seriousness of any of the offences. Nor would I depart from the cautious assessment of the prospects of rehabilitation and re-offending, not least because I am conscious that the sentencing judge had the advantage of seeing the applicant give evidence. Like the sentencing judge, I would conclude that the applicant is of good character and is remorseful for his offending. He is a young man with supportive family members. The fact that he adhered to his bail conditions over around a year before sentence was imposed is confirmatory of the desirability that there be a finding of special circumstances so as to extend the time during which he can be in the community but subject to supervision by a parole officer. The applicant is entitled to a discount of 25% for his pleas of guilt. 4. The offending is such that a full-time custodial sentence is warranted. 5. I would impose an aggregate sentence of 3 years and 3 months, reflecting a starting point before discount of 4 years and 4 months, with a non-parole period of 2 years and 2 months. That is the same ratio as determined by the sentencing judge. 6. I indicate the that the individual sentences would have been 9 months for the intimidation count, 2 years with a non-parole period of 16 months for each of the reckless wounding counts, 6 months for the common assault and 3 months for the destroy or damage property. The indicative sentences are the same as those stated by the sentencing judge, but the significantly lesser aggregate sentence reflects my view that the intimidation and destroy or damage property counts should be almost entirely concurrent, as should the second reckless wounding count and the common assault, and also that there should be a substantially greater degree of notional concurrency than was implicit in the sentence imposed at first instance, having regard to its proper characterisation as a single series of events taking place in slightly more than an hour following the applicant's excessive consumption of alcohol. 7. That sentence should be backdated to allow for time served, so as to commence on 28 March 2018. The sentence will expire on 27 June 2021, and the non-parole period will expire on 27 May 2020. The earliest date when the applicant can apply for parole is 27 May 2020. 8. LONERGAN J: I agree with the reasons and the orders proposed by Leeming JA. ********** 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: 20 March 2020