IS v Regina [2017] NSWCCA 116 (30 May 2017)

Last Updated: 2 June 2017

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	IS v Regina
Medium Neutral Citation:	[2017] NSWCCA 116
Hearing Date(s):	26 September 2016
Date of Orders:	30 May 2017
Decision Date:	30 May 2017
Before:	Gleeson JA at [1] Harrison J at [2] Campbell J at [3]
Decision:	(1) Grant leave to appeal and allow the appeal in part; (2) Confirm the sentence imposed in the District Court for Count 2, adjusting the commencement date from 7 December 2014 to 2 November 2014. That is, impose a sentence of 15 months imprisonment, having a non-parole period of 9 months commencing on 2 November 2014 and expiring on 1 August 2015 with an additional term of 6 months commencing on 2 August 2015 and expiring on 1 February 2016; and (3) Quash the sentence imposed in the District Court for Count 1 and instead impose a sentence of imprisonment of 5 years, having a non-parole period of 2 years and 10 months commencing on 2 May 2015 and expiring on 1 March 2018 and an additional term of 2 years and 2 months commencing on 2 March 2018 and expiring on 1 May 2020. (4) The applicant will be first eligible for release on parole after the expiration of the non-parole period for Count 1 on 1 March 2018. (5) Direct that the sentences of imprisonment proposed be served as a juvenile offender in accordance with, and subject to, the provisions of s 19 Children (Criminal Proceedings) Act 1987 (NSW).
Catchwords:	CRIMINAL LAW – sentencing – aggravated robbery– intentionally destroy property– where robbery committed in company and under the influence of “ice” – where offender a juvenile – where offender’s upbringing engages the principle in Bugmy v The Queen – where primary judge emphasised general deterrence and community protection – where primary judge accepted the offender’s remorse and expressed confidence in his prospects of rehabilitation – balance between the principle in Bugmy v The Queen, remorse, rehabilitation and general deterrence – held that the primary judge erred in applying the principles applicable to the offender’s deprived background – held that the primary judge erred in applying the principles applicable to the sentencing of juveniles
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Criminal Appeal Act 1912 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 CS v The Queen [2014] NSWCCA 229; (2014) 245 A Crim R 249 R v Engert (1995) 84 A Crim R 67 R v Henry (1999) 46 NSWLR 346; [1999] NSW CCA 111 Kiernan v R [2016] NSWCCA 12 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120; [2011] HCA 39 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Pham (1991) 55 A Crim R 128 Veen v the Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 White v R [2016] NSWCCA 190 YS v R [2010] NSWCCA 98
Category:	Principal judgment
Parties:	IS (Applicant) Regina (Crown)
Representation:	Counsel: D.T. Kell with M Pulsford (Crown) N. Mikhaiel (Appellant) Solicitors: Office of Director of Public Prosecutions (Crown) Aboriginal Legal Service (Appellant)
File Number(s):	2014/91214
Publication Restriction:	Section 15A Children (Criminal Proceedings) Act 1987 (NSW)
Decision under appeal:
Court or Tribunal:	District Court
Date of Decision:	06 July 2015
Before:	Judge Culver

JUDGMENT

1. GLEESON JA: I agree with Campbell J.
2. HARRISON J: I agree with Campbell J.
3. CAMPBELL J: The applicant was aged 16 years and 8 months at the time of the offending the subject of this appeal. Section 15A Children (Criminal Proceedings) Act 1987 (NSW) (“Children’s Act”) provides that the applicant’s name “must not be published or broadcast in a way that connects him with [these] proceedings”.
4. The applicant seeks leave to appeal under s 5(1)(c) Criminal Appeal Act 1912 (NSW) against the sentence imposed upon him by her Honour Judge Culver in the District Court at Parramatta on 6 July 2015 in respect of offending which occurred on 24 January 2014.
5. By indictment brought under s 18 Children’s Act, the applicant was charged with, and pleaded guilty on arraignment in the District Court to, the following offending:

Count 1: Aggravated robbery using corporal violence with the infliction of grievous bodily harm contrary to s 96 Crimes Act 1900 (NSW).

The applicable maximum penalty is 25 years’ imprisonment; and

Count 2: Intentionally destroy property belonging to another by fire contrary to s 195(1)(b) Crimes Act 1900 (NSW).

The applicable maximum penalty is 10 years’ imprisonment.

6. The learned sentencing judge passed sentence as follows:
   • (a) As to Count 2, a term of imprisonment of 15 months’ duration, having a non-parole period of 9 months commencing on 7 December 2014 and expiring on 6 September 2015, with an additional term of 6 months commencing on 7 September 2015 and expiring on 6 March 2016; and
   • (b) As to Count 1, a term of imprisonment of 6 years and 9 months with a non-parole period of 45 months commencing on 7 June 2015 and expiring on 6 March 2019 with an additional term of 3 years commencing on 7 March 2019 and expiring on 6 March 2022.
7. As can be seen the sentence for Count 1 was partially accumulated on the sentence for Count 2 by a period of 6 months. The sentence was backdated to 7 December 2014 to take account of broken periods of pre-sentence custody. The earliest date upon which the applicant will be eligible for release on parole is after the expiration of the non-parole period for Count 1 on 6 March 2019.
8. It is agreed between the parties that there was an error in the nature of a slip in the calculation of the pre-sentence custody. The period ought to have been 245 days rather that the 210 days allowed. The Crown submits, and accepts, that even if each ground of appeal propounded on behalf of the applicant is rejected, there should be an “adjustment” to the sentence imposed in the District Court to give “credit” for the extra 35 days of pre-sentence custody: CS v The Queen [2014] NSWCCA 229; (2014) 245 A Crim R 249. It follows from this that if the applicant’s appeal is successful and the Court proceeds to re-sentence, the starting date of any new sentence will be 35 days earlier than 7 December 2014 that is 2 November 2014.

Grounds of appeal

9. The grounds of appeal propounded on the applicant’s behalf are that the learned sentencing judge erred:

Ground 1: by finding that the offence was aggravated by being committed in company: s 21A (2)(e) Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”);

Ground 2: by giving insufficient weight to the applicant’s deprived background;

Ground 3: by giving insufficient weight to the principles applicable to the sentencing of juveniles; and

Ground 4: by imposing a sentence that was manifestly excessive.

Facts

10. On 24 January 2014, the applicant and two juvenile companions left Mount Druitt by train with the intention of travelling to the Entrance. They fell in with other young persons at Strathfield and changed their plans. At some stage the three juveniles ended up in the city of Sydney buying and consuming the destructive drug “ice”.
11. Initially planning to return to Mount Druitt by train, they were ejected from the station by police for being without tickets which they then had no money to buy. Finding themselves in Grafton Sreet, Chippendale, the three decided to steal a car to transport them home.
12. Soon after, the 59-year-old complainant drove her car from Shepherd Street into Grafton Street for the purpose of picking up her daughter. She pulled up and sent her daughter a text message that she was there. As she did so she noticed the applicant running towards her. He opened the driver’s door which must have been unlocked, reached in, took the keys from the ignition and grabbed the victim’s hand bag from the passenger’s seat.
13. The applicant then yelled for the victim to get out of the car. Fearing for her life, the victim fumbled, attempting to release her seat belt. As she did so, the applicant attempted to forcibly pull her from the car by her right upper arm. Looking up, the victim noticed at least one of the other juveniles. The applicant threw the victim’s handbag to the others yelling “run, run”.
14. Despite the hindrance of the applicant pulling at her arm, the victim was able to release her seatbelt. However, as her right arm remained caught in the seatbelt by the applicant’s actions in attempting to drag her from her car, she was unable to comply with his demand. The applicant then punched the victim in the face with a clenched fist, smashing her glasses and causing really serious injuries.
15. After recovering from the immediate effects of the blow, the victim was able to get out of the car and run across the road. The offender took her place in the driver’s seat and drove off, stopping to pick up the two other juveniles.
16. The applicant drove back to Whalan with the others and the victim’s bag. The handbag contained $410 in Australian currency, $500 in Taiwanese currency, the victim’s driver’s licence, credit card and other cards, and the usual important personal effects kept in a handbag.
17. After his return to Whalan at about 10:30 p.m., the applicant set fire to the car at Whalan Reserve, by igniting the seats. By the time fire fighters arrived, the car was a total loss.
18. The victim was taken by ambulance to Royal Prince Alfred Hospital where she was treated as an inpatient for two days. She suffered a massive black eye and a “blowout fracture” to the bones of the orbit of her left eye. She also suffered some pain in her neck. The victim has had ongoing difficulties as a result of the blow: there is a constant flash in the periphery of the vision of her left eye, a degree of asymmetry when compared with the right eye, facial numbness around her left eye, restriction of movement in her neck, and psychological sequelae.
19. Expert evidence is to the effect that the ongoing symptoms and disabilities are consistent with the nature of the injury inflicted by the blow. They are likely to be permanent. The victim’s GP described the psychological symptoms as including irritability, lability of mood, agoraphobia and high anxiety. He considered that the victim is suffering from post-traumatic stress disorder.
20. He treated the victim with counselling, reassurance and Temaze. She was referred for specialist assessment, the results of which were not in evidence.
21. In her Victim Impact Statement, the victim said she feared the “attackers” were going to kill her. She thought at the time that her injuries could be fatal. She feels unsafe because the applicant had her personal details and she thought that he might make threats so she would not co-operate with the police. She confirmed her physical symptoms and ongoing psychological difficulties. She said she became especially fearful when she saw someone of the general physical description of the applicant, a young aboriginal man.
22. The applicant was arrested by police on 19 February 2014. When questioned in the presence of a support person he gave a false alibi. He also gave an exculpatory account implicating a third person.

The applicant’s subjective circumstances

23. The applicant pleaded guilty to both counts when arraigned in the District Court on 14 May 2015. This was apparently the fifth time the matter had been in the List. The learned sentencing judge allowed a discount of 15 per cent, and there is, and could be, no complaint about this.
24. The applicant has a short record commencing only on 18 February 2013. On that day he committed a suite of offences, including having goods suspected of being stolen in custody, negligent driving, driving whilst unlicensed, giving a false name to police when questioned and exceeding the speed limit by in excess of 20 kilometres per hour. These matters were dealt with by a bond. In respect of the goods in custody matter, the bond was subject to supervision for 6 months.
25. Offences of common assault, resist officer, and stalk and intimidate occurring on 12 November 2013 were dealt with by a probation order and community service order. This sentence was passed after his arrest for the index offending. A severity appeal resulted in the sentences being confirmed in all respects other than the community service order. He was ordered to attend courses as directed by Juvenile Justice in relation to substance abuse and anger management.
26. The circumstances of the applicant’s upbringing were dealt with in a report by officers of Juvenile Justice dated 2 July 2015. The report was based, inter alia, upon interviews with the applicant and his mother and father.
27. The applicant was the eighth of his parents’ nine children. His upbringing was marked by “parental criminal activity, substance abuse, severe and chronic neglect and familial violence within the home”. His older siblings are apparently known to the criminal justice and welfare systems. A sister died in 2010 when the applicant was 13.
28. At the age of 7, final care orders were made placing the applicant under the care of the Minister. He was separated from his siblings and moved through multiple placements. Over the years these placements included unrelated carers and members of his extended family. He moved around considerably. He was sometimes in the Kempsey area, with his mother’s family, the Mt Druitt area with his father’s family, and the northern beaches.
29. Due to being in care he frequently changed primary schools, but was able to complete high school to year 10 level. He enrolled in year 11, but showed no real interest in engaging with school and dropped out.
30. He was a promising young rugby league player at club and representative level. He appears to have been mentored by his coach, with whose family he lived for a period of time before coming to the notice of Juvenile Justice.
31. After dropping out of school he spent the majority of his time in unstructured activities in his local area. The authors of the report noted that he was unable to “nominate peers who he believes had a positive influence on his behaviour and who have had no involvement with the criminal justice system”.
32. He gave evidence in the proceedings on sentence. He estimated he first started using cannabis at about the age of 13 or 14 when in foster care and ice at about the age of 15. He said he became hooked on ice at the age of 16. He got it from his mates who were street level distributors of the drug, being paid in drugs. This is somewhat different from what he told Juvenile Justice. He told those officers that he started smoking cannabis in his pre-adolescence, and ice when he was about 14. His use of ice escalated from the age of 15. When in custody prior to being sentenced he was prescribed Mirtazapine for mental health issues and apparently derived benefit from it. The Juvenile Justice Officers made the following assessments:

“[IS] can become impulsive, verbally and physically aggressive, exhibit poor problem solving and negotiation skills and presents with an inability to identify pro-social alternatives to issues and challenges he may face.”

33. They noted:

“[t]hat he has a history of using physical aggression as a means to problem solve and manage conflict.

Their assessment was:

“[The applicant] has a history of exposure to familial violence as a problem solving and conflict resolution strategy. It may therefore be likely that [the applicant] has developed a level of acceptance of this type of behaviour as a means to meet his identified needs and wants and as a strategy to deal with others.”

They further concluded:

[The applicant’s] offending demonstrates a direct association with his substance misuse, impulsiveness, antisocial thinking, poor decision making skills and negative peer influences.

34. The applicant gave evidence that he had read through the victim’s statement and had seen a photograph of her injuries. He said:

“I feel terrible. I’m sorry that I done it ... I’m sorry that I done it, like because it wrecked her life and not only hers, but her family’s, now she can’t drive anywhere without thinking, she can’t look at another like description of an Aboriginal without being scared. That’s pretty bad”.

35. As I have said, the applicant has been subject to a care order since the age of 7 and has had involvement with Juvenile Justice since April 2013. He has not been very compliant with the requirements of either authority at least since 2013. He has placed himself in residences not supported by Family and Community Services. At times his performance and level of engagement with Juvenile Justice has been good; at others, not. For instance, he was said to have successfully completed his six month bond in October 2013, participating in various programs. However, he would often fail to keep appointments.
36. In 2014 his compliance with the requirements of Juvenile Justice was spasmodic due to his “transience”, meaning he would come and go, involving him in breach of bail and failures to appear. Moreover, as her Honour put it (at ROS p 9) the applicant “experienced some problematic behaviour in the correctional environment”. I interpolate this appears to have continued. He admitted striking an officer who was admonishing him.

Reasons for sentence

37. In a careful and comprehensive ex tempore decision, the learned sentencing judge summarised the facts that I have set out. Her Honour made the following findings about the objective seriousness of the aggravated robbery offence:

“The gravity or seriousness of the offence is apparent. As I said, generally speaking, these are very serious matters and that is why Parliament has given such a lengthy maximum sentence of imprisonment of twenty-five years. Clearly, these offences necessarily involve corporal violence and involve a victim, who sustains grievous bodily harm. That is, in other words, really serious bodily injury. Clearly there is an apprehension of that violence by the victim, typically experienced through a great deal of fear.
The particular circumstances of this case that cause it to be serious is that the corporal violence and the grievous bodily harm inflicted upon the victim, were inflicted upon her face, so the disfigurement she experiences is to her face. Furthermore, the victim was vulnerable in the sense of being a lone female at night, in the confined space of her car. Furthermore, there were two other males and whilst they have not been dealt with for being in a joint criminal enterprise with the offender in respect of the robbery, when one considers the aspect of being in company with another or others, one must consider firstly there was not one other male but two. Secondly, it is the perspective from the victim’s point of view or even a notional victim’s point of view that must be kept in mind. That is, it is even more oppressive to a victim experiencing this type of offence, to know that so overwhelming are the circumstances that there are two other men standing right nearby the offender. It presents a picture of hopelessness to a victim and that is why, generally speaking the law regards that as being very serious for the offender to have been in company. Being in company is not a necessary element of this offence. Being in company makes the circumstances of this particular offence particularly serious.

38. Of the destruction of the car by fire, her Honour considered that he appeared to have destroyed the car to cover his tracks to avoid detection. She also referred to the general prevalence of stolen cars being burnt out which added to the need for general deterrence. She regarded both offences as “very serious”.
39. She determined that the applicant should be afforded a discount of 15 per cent on the sentences she would otherwise pass for his plea of guilty. Her Honour considered the guideline judgment in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346; (1999) 106 A Crim R 149 at 380 [161] – [165] to be of assistance. Applying the guideline, she assessed the applicant’s criminal history to be limited to matters of lesser seriousness; there was no weapon involved in the offending but there was serious injury inflicted by actual violence which her Honour recognised were elements of the offence; there was limited planning, not extending beyond the decision to steal the car; the victim was vulnerable; the amount robbed (excluding the car) was relatively small; and there was a late plea of guilty. Her Honour also accepted on the material before her and in particular the applicant’s oral testimony that there was evidence of remorse.
40. When assessing the applicant’s subjective circumstances, her Honour accepted the accuracy of the narrative provided by the Juvenile Justice report which I have summarised above. Her Honour appeared to prefer the history of substance abuse given in evidence over that given to the Juvenile Justice Officers. She emphasised that by dint of s 21A(5AA) Sentencing Act, self-induced intoxication is not a mitigating factor. However, she considered that the family background of substance abuse to which he had succumbed was relevant in reducing moral culpability.
41. Her Honour also accepted that the material provided in the Juvenile Justice report enlivened the principle discussed in Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37 at 595 [44]. Again, her Honour understood the principle to apply because the circumstance of childhood deprivation as discussed in Bugmy “may mitigate the sentence because his moral culpability is likely to be less than the culpability of an offender whose formative years had not been marred in that way”: ROS p 17. Her Honour was of the view that these considerations were required to be weighed and assessed “within the prism of the purposes of sentencing set out in s 3A [Sentencing Act]”: ROS p 18.
42. In the circumstances her Honour considered that the emphasis in sentencing needed to be on general deterrence and community protection. Her Honour saw the need to send “a message to the community that we cannot tolerate these offences”. Her Honour recognised that s 3A must be considered with s 6 of the Children’s Act. She noted that the Crown emphasised that s 6(e) required that the penalty imposed on a child should be no greater than that imposed on an adult who commits an offence of the same kind. With respect, this seems to have been inverted in the Crown submission below to “should be the same as”. For her Honour the good prospects of rehabilitation normally associated with youth was the most relevant consideration arising out of the Children’s Act.
43. Having regard to the consideration of remorse and the consideration that the applicant impressed her as an intelligent young man, the learned sentencing judge expressed confidence in his prospects of rehabilitation. However, she noted that because of his transience he needed to learn to follow through with educational programs. She was prepared to make a finding of special circumstances under ss 19 (3) and (4)(b) Childrens’ Act enabling him to serve the sentence of imprisonment as a juvenile offender “for the appropriate time”.
44. Her Honour decided that the criminality involved in Count 1 was “so very serious” that Count 2 should also be dealt with according to law, rather than as a children’s matter.
45. Her Honour found special circumstances for the purpose of the Sentencing Act because of the need for intensive rehabilitation coupled with the need to “settle the offender back into the community” upon his release to parole. She decided that the sentence for Count 1 should be partially accumulated on the sentence for Count 2 as I have described above.

Ground 1: aggravation by being in company.

46. By s 21A(2)(e) Crimes (Sentencing Procedure) Act 1999 (NSW) it is an aggravating factor to be taken into account in determining the appropriate sentence for an offence that the offence was committed in company. A court is not to have regard to any such aggravating factor if it would be contrary to any rule of law to do so. Nor is a court to have “additional regard to any such aggravating factor in sentencing if it is an element of the offence”. It is trite to say that the Crown must prove aggravating factors beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54.
47. From the extract of her reasons set out at [37] above, it is clear that the learned sentencing judge placed emphasis on the offence being committed in company. Her Honour regarded that circumstance as rendering the offence “particularly serious”.
48. Ms Mikhaiel of Counsel who appeared for the applicant argued that either her Honour was mistaken as to the facts about being in company, or misdirected herself as to the relevant question about this. Emphasis was placed upon the judgment of Simpson JA in White v R [2016] NSWCCA 190. Dr Kell who appeared with Mr Pulsford for the Crown did not disagree as to the principle, but argued that the material before the sentencing judge, including the evidence of the applicant, amply supported her conclusion.
49. In White, after reviewing relevant authorities, Simpson JA (with whom Bathurst CJ agreed) said (at [94]):

The decisions concerning the construction to be placed on the element of an offence being committed in company are, therefore, in my opinion, relevant to the construction to be given to s 21A(2)(e). I do not take those statements to be an exhaustive statement of what might be held to be “in company”. Each case will depend upon its own facts. It is appropriate, however, to focus on at least three questions:
(i) whether the presence of the other person is such as to have a potential effect on the victim, by way of coercion, intimidation, or otherwise;
(ii) whether the presence of the other person is such as to have a potential effect on the offender, by offering support or encouragement, or “emboldening” that person;
(iii) whether the evidence establishes that the other person is present, sharing a common purpose with the offender.

50. I consider that an analysis by reference to each of those three questions amply supported the learned sentencing judge’s conclusion in this regard. In her Victim Impact Statement, the victim referred to her “attackers”. The other two juveniles were in positions of sufficient spatial proximity to render support to the applicant and to intimidate the victim at least at the time of the first contact. One of them, at least, rendered active assistance to the applicant by receiving the stolen bag and carrying it away. The applicant’s own evidence established that the other juveniles were present sharing a common purpose with him, that is, to steal a car to travel home.
51. In my view Ground 1 should be rejected.

Grounds 2 and 3 – Bugmy and the sentencing of the juveniles

52. It is convenient to deal with these grounds regarding potentially mitigating factors together. Ms Mikhaiel acknowledged that the learned sentencing judge referred to and summarised the effect of the decisions in Bugmy and R v Fernando (1992) 76 A Crim R 58. Her Honour also reviewed the factual basis for their application at some length by reference to the Juvenile Justice report and the applicant’s evidence. Ms Mikhaiel’s central submission was that there was an inconsistency between the reduction in moral culpability due to the applicant’s profound childhood deprivation and the heavy emphasis upon general deterrence expressed by her Honour and evident in the sternness of the sentences actually imposed.
53. A similar argument was put in relation to the applicant’s youth. Reference was made to YS v R [2010] NSWCCA 98 and KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 [22] – [25]. Counsel acknowledged that her Honour made an order under s 19 Children’s Act that the sentence be served by the offender as a juvenile but submitted that her Honour failed to apply and give effect to the principles expressed in s 6 of the Children’s Act to the extent to which they were referrable to sentencing.
54. Dr Kell argued that when engaged, the Bugmy principle did no more than potentially moderate the significance of general deterrence in a given case; it did not extinguish it: Kiernan v R [2016] NSWCCA 12 at [63]. Emphasis was laid upon Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at 620 [54] to the effect that the significance of general deterrence in the criminal law is vindication of “the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence”. The emphasis was not limited to, or by, “the utilitarian value of general deterrence”. The weight to be given to the competing sentencing considerations was a matter for the discretion of the sentencing judge and cannot properly be challenged by the applicant in this Court: Crown submissions p 13 [45].
55. Dr Kell argued that there was no error of principle in her Honour’s approach to the relevance of the applicant’s youth. Again, emphasis was placed upon the principle that “considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders”: KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [24]; see also R v Pham (1991) 55 A Crim R 128 at 135.
56. I acknowledge that “the interplay of the considerations relevant to sentencing may be complex”: R v Engert (1995) 84 A Crim R 67 at 68. Seldom can a single consideration be given decisive effect. Moreover, the one consideration may point in two directions. For example, mental illness or an intellectual handicap may reduce the relevance of general deterrence, but at the same time increase the relevance of the protection of society: Engert at 68; Veen v the Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 476-477.
57. Her Honour set out in full the following passage from Bugmy at 595 [44]:

Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

58. Her Honour accepted that the evidence about the applicant’s childhood and upbringing engaged this principle. I accept the argument that it is implicit in the learned sentencing judge’s conclusions that her Honour failed to give any weight to the reduction in moral culpability made explicit by her findings. This arises from her strong emphasis on general deterrence and the need to send “a message to the community that we cannot tolerate these offences”: ROS p 18. It is also evident from her Honour’s reference to “the need to protect the community if there is any fear of recidivism from the offender”: ROS p 18. It is these factors that seem to have been decisive in her Honour’s approach.
59. There is a further inconsistency in her Honour founding the need for community protection on the fear of recidivism while at the same time accepting that the genuineness of the applicant’s expression of remorse warranted confidence in his prospects of rehabilitation: ROS p 19. These matters were only counted toward the finding of special circumstances. Weight, of course, is a matter for the discretion of the sentencing judge. But a failure to afford even some weight to these important matters amounts to error by failing to take a relevant consideration into account.
60. Turning to Ground 3, I accept the Crown’s argument that the principles informing the sentencing of juveniles, so far as they are relevant to this case, are those expressed by McClellan CJ at CL in KT at [24] – [26]:

Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135):

It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft [1975] VicRp 27; (1975) VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment ie coercive action is fundamental to correctional treatment in our society.

The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity (R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]–[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]–[98]; R v Adamson [2002] NSWCCA 349; (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in “adult behaviour” (Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence (Adamson at [31]–[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society.
The weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity (R v Hoang [2003] NSWCCA 380 at [45]). A ‘child-offender’ of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age (R v Bus, unreported, NSWCCA, 3 November 1995; R v Voss [2003] NSWCCA 182 at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth (Hearne at [27]).

61. Applying these principles to the present case, it is clear, with respect, that her Honour erred. The applicant was 16 and 8 months when the offending occurred; as her Honour recognised there was no weapon involved; and other than a vague plan to steal a car, there was no planning or premeditation to this particular offending. Indeed, the offending against the victim seems to have been wholly spontaneous and opportunistic. The applicant did not have an extensive criminal history, although the nature and circumstances of the offending made it objectively serious.
62. It should not be overlooked that the applicant’s resort to violence was wholly a product of his profound childhood deprivation according to the assessment made by the Juvenile Justice officers which the judge accepted. The offending occurred at a time when he had not yet gained maturity and the effect of that deprivation must have been at its fullest. Notwithstanding the seriousness of the offending, his prospects of rehabilitation were rated favourably by the sentencing judge. Yet, the only discernible allowance made for that important consideration in sentencing juveniles was in the alteration of the statutory ratio for special circumstances.
63. Bringing these grounds together, it should be borne in mind that in Munda at 620 [54], immediately preceding the passage relied upon by the Crown, the justices joining in the majority judgment acknowledged the force of the consideration “that it is unreasonable to expect the conduct of individuals within [profoundly disadvantaged] communities to be controlled by rational calculation of the consequences of misconduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion”. This was not a crime of passion, and notwithstanding what the justices said about the countervailing considerations, the particular circumstances of the applicant’s upbringing remained a central, even if not decisive, sentencing consideration.
64. Moreover, as I have said more than once, the learned sentencing judge’s positive findings of rehabilitation demonstrated that the relevance of general deterrence and protection of the community did not loom so large in the proper sentencing reckoning of this case.
65. I am of the view that the combined effect of the applicant’s background of profound childhood deprivation and his youth called for the weight that would ordinarily be given in offending of this serious nature to personal and general deterrence and the protection of society “to be moderated in favour of other purposes of punishment” and, in particular, his “rehabilitation”: Bugmy at 596 [46].
66. In my view, Grounds 2 and 3 have been made out.

Ground 4 – manifest excess

67. As I have found patent error, it is unnecessary, and in my judgment undesirable, to go on to consider whether there is latent error in the form of a sentence which is plainly unjust, or manifestly excessive. My decision makes this exercise unnecessary given that it will be necessary, for the reasons I have given, to re-exercise the sentencing discretion in any event to determine whether any other and lesser sentences are warranted in law. Generally, it is only by reconsidering all of the facts, matters and circumstances relevant to sentencing in the case at hand that a decision can be made about manifest excess. As that exercise must be undertaken anyway in exercising the discretion afresh, it is otiose to consider ground 4.

Resentencing

68. The parties provided affidavit evidence of the applicant’s progress in custody should the need to resentence him arise. The applicant read the affidavit of his solicitor, Rebecca Crosweller, affirmed on 21 September 2016, and the Crown relied on the affidavit of its solicitor, Meagan Betteridge, sworn on 26 September 2016. I return to these matters below.
69. Although these offences are not standard non-parole period offences, I would regard the statement in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at 132 [27] as applicable. That is to say, “[t]he objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending”.
70. Bearing this in mind, I would adopt the assessment of the learned sentencing judge set out at [37] above. Her Honour’s assessment was not challenged, and I am in general agreement with it. That assessment includes consideration of the aggravating factor of the robbery offence being committed in company, which I am satisfied has been established beyond reasonable doubt. With respect, it may be that the conclusion expressed in the last sentence of this passage – “[b]eing in company makes the circumstances of this particular offence particularly serious” – overstates the aggravating effect of being in company. In my judgment it suffices to say that the circumstances identified by the sentencing judge bespeak a serious offence. One needs to bear in mind that the use of force and the infliction of really serious injury are elements of the offence.
71. The applicant’s subjective circumstances set out at [26] – [35] above, as her Honour recognised, amount to the type of profound childhood deprivation which engages the Bugmy principle. However, unlike her Honour, in my view the reduction in moral culpability that these matters bespeak attenuates the requirement for general deterrence to a significant degree and gives rise to a corresponding elevation in the significance of rehabilitation as a sentencing consideration. This emphasis on the relevance of rehabilitation is reinforced by the consideration of the applicant’s youth. On that last score however, no one is suggesting, and least of all me, that a punishment of anything other than full time custody was appropriate in this case. To put it in positive terms, notwithstanding his youth, short record and the Bugmy considerations, the interests of justice require nothing less than the imposition of a sentence of full time imprisonment. I would regard this as satisfying the principle identified by Lee CJ at CL in R v Pham at 135 that the commission of crimes of significant violence by young offenders brings into the focus “the protective aspect of the criminal court’s function” calling for a sentence of imprisonment, notwithstanding the restraint a court normally exercises when dealing with juveniles.
72. I am also of the view that the applicant’s record, which is neither long nor very serious, his remorse as found by the learned sentencing judge, and good prospects of rehabilitation also reduce, but not eliminate, the significance of personal deterrence in this case.
73. Having said that, the evidence read at the hearing in this Court regrettably demonstrates that the applicant has continued to engage in problematic behaviour in custody. He has a record of misbehaviour including bad language, disobedience, harassment and “subversive behaviour”. This record suggests that he continues to have difficulty in responding appropriately to authority. There was an incident on 12 January 2016 where he offered violence to a corrections officer who docked conduct points from him for exhibiting a poor attitude. He used violent language, but did not engage in actual violence. He refused to co-operate with the “inquiry” into the incident.
74. Another incident of particular concern is his engagement in a disturbance on 10 August 2016. He did not start this disturbance but joined it after it was started by others. He and the others had to be restrained and escorted from the area where the disturbance occurred. The disturbance, as I have said, was started by other detainees who “exchanged gestures of violence” when detainees from a different unit were walking past them. The antagonist from each group broke ranks and ran towards the other. The applicant and yet another detainee joined in. The incident was subdued before actual violence broke out. I accept that these incidents raise a question mark over the applicant’s progress in his rehabilitation.
75. On the other hand, he has completed Year 11 in custody and continued his education, obtaining certificates in the Aboriginal Culture and Art program. Apparently he has shown talent and some of his work has been exhibited. He is currently enrolled to complete his HSC studies. His teachers speak highly of him, describing him as “a model student”. He is a member of the Indigenous Leadership Committee, providing support for younger Aboriginal people in the detention centre. He participates in sport and other recreational activities and there is said to be an improvement in his engagement with staff and counsellors. Medication is apparently helping him to manage his anger and anxiety levels.
76. On balance, I am prepared to find that he is progressing towards rehabilitation, even though there have been setbacks.
77. I would maintain the discount of 15 per cent for the applicant’s late plea in the District Court. I would also make a finding of special circumstances. In this regard it is necessary to avoid double counting. In fixing the sentence, I propose to give greater emphasis to the applicant’s youth and the Bugmy considerations than the sentencing judge. However, I also agree that there will be a need to continue the process of rehabilitation in the community if he is released to parole, and for that purpose a longer period of supervision than may be permitted by the statutory ratio should be provided for.
78. In accordance with s 25(5AA) Sentencing Act, which really reflects common law principle, I would not treat his intoxication with ice at the time of the offending as in any way a mitigating circumstance. I acknowledge that it may explain the impulse which occasioned the offending, but it in no way reduces its seriousness. I accept, more generally, that his substance abuse is a product of his upbringing, but even in a young person there is an element of choice involved in persistent abuse. It is important, however, to bear in mind that the applicant’s motivation was not to obtain money to continue his substance abuse. The purpose was to steal a car to travel home.
79. Although this case is not on all fours with the category of case the subject of the R v Henry guideline judgment, the guidance provided by that decision remains relevant. The guideline was provided in recognition of the fact that flexibility was required because the characteristics of robbery offences by young offenders could not be defined categorically and were likely to be inherently variable: R v Henry [162] – [165]. The range suggested in R v Henry is a “full term” taking account of a plea of guilty of between 4 and 5 years. Bearing in mind the objective seriousness of this offending especially, but for the plea of guilty I would have selected a starting point of around 6 years and the “full term” for this offence which I would impose is one of 5 years. Given the finding I have made of special circumstances, and the need to accumulate the sentences for each count, for this offence, I would impose a non-parole period of 2 years and 10 months, being the minimum time that justice requires this offender to remain in custody for this offence. Like the sentencing judge, I would make an order under s 19 Children’s Act for the sentence to be served in Juvenile Justice. To the extent necessary, I make the same finding of special circumstances under s 19(3) for the reason expressed in s 19(4)(b), Children’s Act.
80. Having reviewed all of the facts, matters and circumstances relevant to sentencing for myself, I am not of the view that a lesser sentence than that imposed by the learned sentencing judge for count 2 is warranted in law. I would confirm her Honour’s sentence. Moreover, I would accumulate the sentences, as her Honour did, making the adjustment in respect of the commencement date referred to at [8] above. In respect of count 2, I would confirm the “full term” of 15 months, with a non-parole period of 9 months. The sentence for count 1 should be accumulated after 6 months of the sentence for count 2.
81. The orders I propose are:
    • (1) Grant leave to appeal and allow the appeal in part;
    • (2) Confirm the sentence imposed in the District Court for Count 2, adjusting the commencement date from 7 December 2014 to 2 November 2014. That is, impose a sentence of 15 months imprisonment, having a non-parole period of 9 months commencing on 2 November 2014 and expiring on 1 August 2015 with an additional term of 6 months commencing on 2 August 2015 and expiring on 1 February 2016; and
    • (3) Quash the sentence imposed in the District Court for Count 1 and instead impose a sentence of imprisonment of 5 years, having a non-parole period of 2 years and 10 months commencing on 2 May 2015 and expiring on 1 March 2018 and an additional term of 2 years and 2 months commencing on 2 March 2018 and expiring on 1 May 2020.
    • (4) The applicant will be first eligible for release on parole after the expiration of the non-parole period for Count 1 on 1 March 2018.
    • (5) Direct that these sentences of imprisonment be served as a juvenile offender in accordance with, and subject to, the provisions of s 19 Children (Criminal Proceedings) Act 1987 (NSW).

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Amendments

02 June 2017 - Hearing date amended to from 26 September 2017 to 26 September 2016