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Turnbull v The Queen [2019] NSWCCA 97

appeal against sentence — two counts of using a carriage service to threaten to kill offences contrary to s 474.15(1) of Commonwealth Criminal Code — further offence of using carriage service to menace/harass/offend taken into account pursuant to s 16BA — state offences — original sentence imposed 5 years’ imprisonment with 3 year and 6 month non-parole period — offender on parole from previous offences but parole revoked and offender remained at large, present offences committed after parole revoked — objective seriousness — objective criminality was grave and persistent — sentencing judge erred in treating commission of an offence while on conditional liberty as aggravating objective seriousness of offence — no material error demonstrated in this respect — as that finding could only impact indicative sentence in relation to one of the numerous State offences in relation to which sentencing judge imposing aggregate sentence of 4 years with 3 year non-parole period, it had no impact on selection of aggregate sentence for Commonwealth offences — error was all but inconsequential — but cannot be said with confidence it did not affect exercise of sentencing discretion — it must have had (although minimal) bearing on overall assessment of totality of applicant’s conduct and determination of aggregate sentence in relation to State offences —  where error established the duty of the Court to exercise an independent sentencing discretion not discharged merely by adopting the sentence imposed at first instance and concluding that “no lesser sentence is warranted in law” — Court must exercise independent sentencing discretion — antecedents — s 16A(2)(m) — some evidence concerning offender’s personal circumstances that ameliorates culpability — had troubled early life, difficulties in relationship with parents, added to hospital for psychiatric care following termination of relationship with complainant, diagnosed as suffering from depression and anxiety — rehabilitation — s 16A(2)(n) — contrition — s 16A(2)(f) — former policeman friend offered offender home on release — generous offer affords some, unquantifiable, optimism for rehabilitation — offender’s post sentencing affidavit (admitted for purpose of resentencing) asserted that offender “appalled and ashamed” — not possible to make any assessment of genuineness of assertions nor realistic prospect of signalling change — cannot be overlooked offences were not first of their kind offender nor that offender served term of imprisonment for offences of the kind — appropriate to take into account expressions of regret and good intentions — resentence — the sentences the Court would impose exceed the sentence imposed at first instance — since the indicative sentence and aggregate sentences the court would impose are lengthier it is appropriate not to disturb the sentence as was acknowledged in Kentwell
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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