AB v The King - [2023] NTCCA 8

CITATION:AB v The King [2023] NTCCA 8
PARTIES:AB
v

THE KING

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:CA 12 of 2022 (22040211 & 22121586)
DELIVERED:  25 October 2023
HEARING DATE:  3 April 2023
JUDGMENT OF:  Grant CJ, Barr & Brownhill JJ
CATCHWORDS:

SENTENCING – Appeals – Appeal against sentence – Manifest excess
Whether sentence to imprisonment manifestly excessive – Marked differences between appellant’s sentences and comparative cases – Sentences imposed plainly excessive – Appeal allowed.
CRIME – Appeals – Appeal against sentence – Misapplication of principle
Whether sentencing Judge misapplied mitigating principles relating to appellant’s intellectual and psychological deficit – Whether sentencing Judge failed to specifically apply and recognise the mitigating effect of appellant’s social disadvantage – Express reference made and weight given to intellectual deficit – No failure to take account of social disadvantage established – Appeal on these grounds dismissed.

Bugmy v The Queen (2013) 249 CLR 571, Edmond & Moreen v The Queen [2017] NTCCA 9, Emitja v The Queen [2016] NTCCA 4, Forrest v The Queen [2017] NTCCA 5, Markarian v The Queen (2005) 228 CLR 357, ML v The Queen (2018) 341 FLR 402, Phan v Western Australia [2014] WASCA 144, R v Stokes (1997) 138 FLR 137, The Queen v Kilic (2016) 259 CLR 256, The Queen v Koumis (2008) 18 VR 434, The Queen v Pham (2015) 256 CLR 550, The Queen v Ryan [2019] NTCCA 20, TM v The Queen [2017] NTCCA 3, Wiren v The Queen (1996) 5 NTLR 211, Wong v The Queen (2001) 207 CLR 584, referred to.
REPRESENTATION:

Counsel:
Appellant:  I L Read SC
Respondent:  M Aust
Solicitors:
Appellant:  Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions

Judgment category classification: B
Number of pages: 55

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

AB v The King [2023] NTCCA 8
No. CA 12 of 2022 (22040211 & 22121586)

BETWEEN:

AB
Appellant
AND:

THE KING
Respondent

CORAM: GRANT CJ, BARR and BROWNHILL JJ
REASONS FOR JUDGMENT
(Delivered 25 October 2023)
THE COURT:

The appellant was 14 years old when he offended. He was sentenced to four years and six months’ imprisonment by the Supreme Court for two counts of aggravated robbery and one count each of property damage, unlawful entry and stealing. The issues in the appeal are whether the sentence was manifestly excessive or infected by specific error in the misapplication of the mitigating principles which operated in relation to the appellant’s personal circumstances of youth, intellectual deficit and social disadvantage.
The offences
Following pleas of guilty, on 19 November 2021 the appellant was convicted of the following charges:
(a)on file 22040211:
(i) a count of robbery, committed on 30 November 2020, aggravated by the circumstances that the appellant was in company with another person and that person caused harm to the victim, contrary to s 211(1) and (2) of the Criminal Code 1983 (NT) (Count 1);
(ii) a count of criminal damage, committed on 10 December 2020, contrary to s 241(1) of the Criminal Code (Count 2);
(iii) a count of unlawful entry, committed on 10 December 2020, aggravated by the circumstances that it was committed with the intention to commit the indictable offence of stealing, the building entered was a dwelling house and the appellant and another were armed with offensive weapons being knives, contrary to s 213(1), (4) and (6) of the Criminal Code (Count 3); and
(iv) a count of stealing property valued at $5,805, committed on 10 December 2020, contrary to s 210(1) of the Criminal Code (Count 4); and
(b)on file 22121586, a count of robbery, committed on 7 July 2021, aggravated by the circumstances that the appellant was in company and the victim suffered harm, contrary to s 211(1) and (2) of the Criminal Code.
The maximum penalties for the offences are imprisonment for life for the aggravated robberies and the aggravated unlawful entry, imprisonment for 14 years for the criminal damage and imprisonment for seven years for the stealing.
The sentence
The appellant was sentenced to a total effective sentence of imprisonment for four years and six months, as follows:
(a)three years and two months for the aggravated robbery on file 22121586;
(b)two years and five months for the aggravated robbery on file 22040211 (Count 1), with 12 months to be served cumulatively upon the sentence on file 22121586;
(c)four months for the criminal damage (Count 2);
(d)19 months for the unlawful entry (Count 3); and
(e)10 months for the stealing (Count 4), with each of the sentences on Counts 2, 3 and 4 to be served concurrently with each other, and cumulatively as to four months on the sentence on Count 1.
It was ordered that the sentence be backdated to 22 March 2021 to take account of time in custody, and suspended after the appellant had served nine months’ imprisonment. An operational period of four years from the date of release was imposed.
The appeal
Leave to appeal on the ground of manifest excess was granted by a single Judge.
Shortly before the appeal was heard, the appellant sought leave to add two grounds of appeal, namely that:
(a)The sentencing Judge erred insofar as her Honour misunderstood and misapplied the mitigating principles relating to intellectual and psychological deficit as they were relevant to the circumstances and established facts of the appellant.
(b)The sentencing Judge erred in failing to specifically apply and recognise the mitigating effect of social disadvantage in the circumstances of the appellant.
That leave was granted at the hearing.
The offending
Count 1, file 22040211
The robbery offence was committed in the company of a 13 year old boy (‘RR’). The victim was a 14 year old boy. On 29 November 2020, the victim was staying the night at the home of his friend (‘JH’). RR contacted JH and asked to meet up with him and some girls. JH and the victim agreed, waited until JH’s mother was asleep, and snuck out. At 1.00 am, the victim and JH went to a block of units to meet up with RR. There, they saw a large group of youths, including the appellant and RR. The appellant introduced himself to the victim, and recognised RR.
After a short time, the group walked up a public street. The victim and JH rode their bikes, thinking the group was going to an oval. Instead, the group went up an alleyway near a school. Some members of the group threw rocks at another boy’s house. The victim went half way up the alley then turned around to wait for the others to return. He sat on his bike while the group threw the rocks. The group walked back to where the victim was located. The victim asked JH what was going on and whether they were going to the oval. While the victim was on his bike, the appellant walked behind him and RR walked to his side. They had formed a common intention to rob the victim. The others in the group stood back behind the appellant and RR, but did not participate in the robbery.
The appellant started to take the victim’s silver chains off his neck. The victim said, ‘What are you doing?’ and, ‘Nah, leave them’. The appellant said, ‘Stay still or I’ll shiv you’. That was clearly a threat by the appellant to stab the victim if he resisted. The victim believed him because he had heard about the appellant previously having stabbed a boy. The victim tried to hold onto his chains but RR punched him as hard as he could to the left side of the face. The victim felt pain to his cheek. RR said, ‘Give him the fucking chains’. The victim pushed RR away. The appellant said, ‘Don’t touch my boy or I’ll stab you’. He pulled up his shirt to reveal a black handle protruding from his pants, suggesting he was in possession of a knife. The victim saw this and thought it was a knife.[1] The appellant took the victim’s two chains, valued at $650. He took the victim’s bum bag, removed $15 in coins and gave it back. He took the victim’s watch, valued at $270. RR took the victim’s mountain bike. The victim let them take those items because of the violence which had already been inflicted on him and the threats which had been made to him.
While that was happening, JH pleaded with another youth to tell the offenders to stop. That youth told the offenders to leave the victim, but they did not. The victim walked to where JH was on his bike so he could get a ride home. RR said to him, ‘You can have your shit back’ and returned the bike to the victim. The appellant approached the victim again and said, ‘Let me look in your pockets’. The victim turned his pockets out to show he had nothing left. The group then started walking away. The group returned to the block of units and laughed about how scared JH had been. The victim and JH rode back to JH’s home. When the victim went home the next day, he told his mother what had happened and she reported it to Police.
Counts 2, 3 and 4, file 22040211
At about 1.30 pm on 10 December 2020, the appellant, RR and another co-offender (‘TT’) went to a house in which a man and his children lived. No one was home at the time, although there were cars parked outside. The offenders smashed a bedroom window and chipped the window of another bedroom. That is the offending the subject of the criminal damage charge in Count 2.
They entered the home with intent to steal, and one or more of them was in possession of one or more large hunting knives which they intended to use to cause injury or fear to anyone who may have been at home. That is the offending the subject of the unlawful entry charge in Count 3.
CCTV cameras inside the home recorded the appellant and TT walking around inside the house holding large hunting knives, and breaking one of the CCTV cameras. All three offenders were recorded walking into the main bedroom. RR is recorded trying to cover his face after seeing a CCTV camera in the bedroom. The appellant is recorded holding a bag across his chest. TT is recorded breaking the CCTV camera. The offenders then went through the other rooms of the home, throwing everything out of the drawers in the bedrooms and lounge, and spilling drinks. They unsuccessfully tried to access a gun safe with a pair of scissors. They stole numerous items of property including two bikes, a scooter, a back pack, five watches, a Leatherman multi-tool, two knives, a tobacco pipe, vape equipment, a sliding gate controller, a car key, ear phones, a CCTV camera that was installed outside the home and approximately $300 in coins, with a total value of approximately $5,805. That is the offending the subject of the stealing charge in Count 4.
The occupier of the home returned at 2.15 pm and notified Police. RR’s palm print was found on the two cars parked at the home and on a watch box discarded there. Stills from the CCTV footage were shown to TT’s mother, who identified all three offenders. On 13 December 2020, the occupier of the home saw a youth riding his bike. He followed the youth until he dropped the bike and jumped a fence. The bike was recovered. It cost the occupier $3,892 to repair the damage caused at the home by the offenders. He also incurred cleaning expenses and had to take some time off work as a consequence of the offending. He also installed bars on the home’s windows because he felt unsafe after the offending. The appellant and RR were arrested on 14 December 2020.
In his victim impact statement, the home occupier wondered what harm might have happened to himself and his children if he had arrived home earlier, given that the offenders were armed with knives. He said that the incident had left a lasting effect on him because he had not expected anyone to smash their way into his house in broad daylight. Every time he leaves for work he is reminded of what can happen when the home is unattended. He was saddened to think that possessions owned by himself and his children and obtained through his hard work had been taken. His children felt uneasy, scared and vulnerable in the home which was meant to be a safe place for them, and sad for the loss of their possessions. His children struggled to understand why people in the community feel they are entitled to take what they want or are above the law.
File 22121586
On 6 July 2021, the appellant was granted bail by the sentencing Judge in relation to the charges on file 22040211 on various conditions, including that he not associate with RR or TT, that he be subject to electronic monitoring and that he be subject to a curfew between 8 pm and 7 am.
At approximately 7.10 pm on 7 July 2021, the appellant and eight unknown co-offenders approached a boy and a girl both aged 16 years old in the car park between a shopping centre and a bus exchange. The boy was sitting on a trolley rail smoking and the girl was standing next to him. A co-offender asked the boy for a smoke and was given one. The appellant and other co-offenders walked over to the victims and asked for more cigarettes. The boy had none left. The offenders milled around near the victims. The girl feared for her safety and walked towards the bus interchange.
The offenders circled closely around the boy, who was still sitting down, preventing him from getting away. The appellant stood over the boy, looking down at him. The appellant reached down to take something from the boy’s hands as the others moved in closer. The boy tried to turn away from them and get up. A co-offender grabbed him by the shirt as he was getting up. The boy tried to pull loose and push the hand away, but one of the co-offenders punched him to the side of his head. The group closed in on him and went through his pockets. A co-offender took out the boy’s phone, which also contained his bankcards and identification cards.
The girl looked back and saw what the offenders were doing. She ran back to help the boy. He struggled against the group. A co-offender wrapped his arms around the boy’s shoulders and held him from behind while the other offenders walked away. The boy managed to free himself and ran after the co-offender who had taken his phone. He jumped on the co-offender’s back. The co-offender struck him multiple times to the head and body and a number of the offenders ran in to assist. The girl reached the boy and tried to pull the others off him. She had her handbag slung over her shoulder. One of the co-offenders pulled it from her. She struggled with two of the co-offenders over the handbag. Its contents spilled on the ground and she scrambled to pick up her things.
The boy was punched and pulled by four of the offenders. He tried to fight back but was pulled by his shirt onto the ground. He fell into the appellant’s legs and the appellant leaned down and punched him multiple times to the head. The co-offenders kicked and punched him to the body. He was unable to defend himself. The appellant kicked the boy hard three times to the head. The boy rolled onto his knees and cowered with his hands over his head. A co-offender stood over him, kicking and punching him. The boy got to his feet and approached one of the co-offenders. He then turned and walked back towards the appellant, who punched him twice in the head.
A man and a woman then intervened. The woman got between the appellant and the boy and tried to keep hold of the victims while the man tried to stop the offenders. The boy was kicked by one of the co-offenders from behind. Another co-offender ran up to the girl and snatched her handbag from her hands. Some of her things fell to the ground. The co-offender went through her handbag and took out her phone and about $100 in cash. He threw the handbag on the ground. While the boy was being held by the woman, the appellant ran up and punched him with full force to the face. He then ran to the bus interchange. The co-offenders all ran off after him. The boy followed and confronted one of the co-offenders, trying to get his phone back.
The man and woman intervened again and the group ran to a bus. The boy and girl went after them. The appellant got to the bus and joked with the co-offenders about the assault. He mimicked big kicks and how the boy was held from behind. The co-offenders joined in. The boy and girl arrived and the boy approached the co-offender for his phone. The co-offender pushed him away and punched him. The man and woman intervened again. The girl spoke to transit security and told them what happened. The appellant and the others got onto the bus. Transit security pulled them off the bus and they walked back through the car park. The boy gave chase, again trying to get back the stolen property. The group ran around the corner and he gave up the chase, returning to the security guards, then to the car park to get what had been left there.
The appellant and co-offenders walked to a bus stop nearby. One of the co-offenders handed the appellant something, which he threw to the ground as hard as he could and he and the co-offenders jumped on it then left it on the road. The appellant sat on the kerb and removed his electronic monitoring device. He left the device on the road and the group walked to the bus stop. At 7.25 pm, a tamper and removal alert on the device was received. The appellant and co-offenders got on a bus. During this period the appellant continued his re-enactment of the offending. Later, while he was getting off the bus, he told a young man getting onto the bus that he had been released from detention the previous day and had cut off his tracker.
All of the offending was caught on CCTV and the electronic monitoring data confirmed the appellant’s location. The appellant was arrested on 16 July 2021 at his home. The property stolen was valued at approximately $900. The boy suffered bruising, grazes and cuts to his head and body, and the girl no longer wanted to go out in public because she was afraid she may be assaulted again.
The appellant’s personal circumstances
Prior criminal history
At the time of the offending, the appellant was 14 years old. He had a prior criminal record comprising a finding of guilt of aggravated assault committed in October 2019, when he was 13 years old. The circumstances of that offending were that he and TT went into McDonald’s where the victim, a boy aged 13 years old, punched the appellant several times and put him in a head lock. The victim was removed from the premises by staff. The appellant, TT and another 14 year old boy found the victim and decided to retaliate for the assault on the appellant. One of the boys ran up to the victim from behind, tried to punch him to the head and slung him on the ground. While the victim was on the ground, the appellant and two others took turns stomping, kicking and punching him, which caused bruising and swelling to his face and torso. While he was on the ground, the appellant stabbed him with an unknown weapon, causing a 1 cm puncture wound which resulted in a collapsed lung requiring surgery and five days in hospital. The appellant was sentenced to a 12 month good behaviour bond.
Social history
The appellant was 15 at the time of sentencing.
He was born in Western Australia and was kept in hospital for six weeks following birth for initial respiratory and feeding support. During pregnancy, his mother was admitted to hospital for fractured ribs after a domestic violence incident. He was the middle of three children to his mother and father. His father perpetrated domestic violence on members of the family, including an episode resulting in his three year old sister suffering a fractured femur. The appellant’s mother moved with the children from Western Australia in 2010 to get away from that situation.
The family first came to the attention of child protection authorities in the Northern Territory in 2010, after being notified by Western Australian authorities that the three children were on 18 month child protection orders and had relocated with their mother to the Northern Territory to live with their maternal grandmother. There were eight recorded instances of domestic violence witnessed by the children in Western Australia, with one instance of physical harm to the three children which resulted in them being placed in care.

The appellant’s mother entered into a relationship with a new partner in Darwin and they had a child together. Between 2011 and 2020, there were 15 notifications to the child protection authorities alleging neglect, physical and emotional harm such as lack of supervision, inadequate provision of basic needs, missing child, substance abuse (including adults supplying children), domestic violence, excessive physical discipline and association with offenders. Of those notifications, five proceeded to investigation and three were found substantiated. They were excessive physical discipline of the appellant by his mother, who struck him with something whilst she was intoxicated (2015), exposure to domestic violence and property damage by the mother’s partner (2017) and exposure to domestic violence and one child left alone with no food (2018).
The appellant went to primary school in Darwin, and then briefly to boarding school in Queensland before returning to middle school in Darwin. From an early age he experienced difficulties at school which resulted in a lack of engagement and poor attendance. In 2016, the appellant was diagnosed with Attention Deficit Hyperactivity Disorder (‘ADHD’) and mild bilateral hearing loss. He was prescribed Ritalin, but subsequently ceased medication for his ADHD as he did not like its effects on him.
The appellant has spent time with, and is close to, his maternal grandmother and step-grandfather. Some of the appellant’s uncles are currently in prison, as is his father. At the time of the offending, the appellant lived in Darwin with his mother, her partner (who worked away and returned intermittently) and his three siblings.
The appellant reported regularly drinking alcohol and using cannabis, but denied sniffing petrol or other substances. The appellant had continued schooling whilst in detention, but there had been numerous ‘lock downs’ due to staff shortages whilst he was on remand.
Cognitive and language impairments
A speech pathology assessment report from 2013 noted the appellant showed severe expressive overall oral language and expressive oral language difficulties, and moderate receptive oral language skills. A subsequent speech pathology assessment was conducted in 2017 following a referral due to concerns regarding difficulties with attention span, following instructions, not completing tasks, disengagement at school and ability to speak clearly and concisely. The report of that assessment recorded the appellant as having difficulty interpreting assessment requirements, with confusion as to how he should perform assessment tasks and misinterpretation of the tasks even after trial and practice activities. The assessments found the appellant had moderate to severe difficulties with receptive and expressive language skills, applying working memory to language and holding information in short term memory. He also had difficulties maintaining attention to tasks, and monitoring and correcting responses. A cognitive assessment was recommended.
A cognitive assessment report from 2018 assessed the appellant to be in the Low Average range overall for non-verbal ability. Based on this and the 2017 speech pathology assessment report, the opinion was that the appellant met the diagnostic criteria for Language Disorder.
A psychological assessment report from October 2021 undertook an assessment of the appellant’s cognitive capacity and offending behaviours, triggers and motivations. The assessment concluded that the appellant was at moderate risk of reoffending and met the criteria for Conduct Disorder (child onset type). The report stated that there were no expressive or receptive language difficulties observed.[2] The assessment found the appellant’s verbal comprehension abilities fell in the Very Low range, being better than only 4% of same-aged peers; his visual spatial abilities were in the Average and Low Average range, being better than 23% of same-aged peers; his fluid reasoning abilities were in the Low Average and Very Low range, being better than 5% of his peers; his working memory abilities were in the Low Average and Very Low range; and his processing speed abilities were in the Very Low and Extremely Low range, being better than only 1% of same-aged peers.
The appellant’s adaptive functioning, which was measured by his mother’s answers to a check list, was rated as having no difficulty across the domains of family, cultural and spiritual understanding, monetary management, daily living, community and well-being, communication, social/emotional functioning and employment, but to have difficulty in expressing himself in writing, following medical instructions and sharing with family members.
Overall, the appellant was found to fall in the Very Low range of intelligence, better than only 2% of same-aged peers. Because his adaptive functioning was rated well by his mother, he did not meet the criteria for an intellectual disability. He was found to have Conduct Disorder, which is a repetitive and persistent pattern of behaviour in which the basic rights of others or major age-appropriate societal norms or rules are violated. Individuals with the disorder often initiate aggressive behaviour and frequently misperceive the intentions of others as more hostile and threatening than is the case. He was assessed as having a moderate risk (ie a likelihood) of reoffending as he has a high number of risk factors for violence and very few protective factors.
The 2021 assessment report opined that the appellant's impaired cognition and conduct disorder significantly impacts on his offending behaviour as he may not always understand right from wrong and understand the consequences of his behaviour. Due to his diagnosis, boredom and negative peer influences, he is more likely to engage in criminal behaviour and would have difficulty learning from past mistakes. A residential program such as BushMob was recommended, along with a functional assessment by an occupational therapist, to assess functional capacities and daily living skills which may assist in an intellectual disability diagnosis and access to the National Disability Insurance Scheme (‘NDIS’).
A subsequent letter from the general practitioner who attended on the appellant whilst he was in custody identified his health and developmental issues as ADHD (combined inattentive and hyperactivity subtype), severe expressive language disorder, moderate receptive language disorder, conduct disorder and early life trauma due to domestic violence. The appellant had declined medication for his ADHD, but was receiving support from psychologists to manage and improve his emotional regulation and problem solving skills.
Time in custody and on bail
At the time of sentencing, the appellant had spent almost eight months in detention. He had one incident of self-harm involving superficial scratches to his forearm for which he was placed ‘at risk’ for 4 days. In the aftermath of the incident the appellant was visibly anxious and said he did it because he could not cope with extended lock downs and wanted to get out of the block he was in, and that he was anxious and sad about his situation. He had been involved in 26 other incidents whilst in detention, including physical assaults on another detainee, threatening behaviour to detainees and staff, property damage, a disturbance in which he climbed onto the roof of the facility, possessing prohibited items, and making plans to abscond.
The appellant had been granted bail three times since the first episode of offending, which was revoked due to alleged fresh offending and non-compliance through removal of his electronic monitoring device on two occasions. He had spent one month and 24 days on bail at Saltbush, during which he was said to have made fairly good progress despite a few setbacks. He had been re-enrolled in school, had improving attendance, and had participated in an alcohol and other drug program and Aboriginal cultural program sessions. He had seven incident reports whilst on bail at Saltbush, with four of them relating to the suspected consumption of cannabis.
Post-custody plans
At the time of sentencing, an NDIS package had been approved for the appellant due to his cognitive impairments.
Letters of support for the appellant were received from: (a) a youth justice worker about a referral to the B18 program, which is a four month program run seven days per week for full days, focussing on VET training; (b) the NAAJA Throughcare program, which is a support program for young Aboriginal people to engage in pro-social activities to reduce the risk of reoffending; and (c) BushMob advising acceptance into the four month residential alcohol and other drug program. The appellant had also begun working with the Youthworx employment service with the aim of achieving work readiness after release.
A pre-sentence report stated it would be important for the appellant to have clear direction and short term goals which provided him opportunity to achieve desired outcomes such as reduction of restrictive conditions in a ‘step-down approach’, with clear consequences for non-compliance or continued engagement in anti-social behaviour. He was found suitable for supervision on conditions including completion of the BushMob program and abstinence from alcohol with testing and, possibly, electronic monitoring at the discretion of the supervising officers.
Post-custody offending and dispositions
The appellant was sentenced to the term of detention which is the subject of this appeal on 19 November 2021. He was released from custody on 22 December 2021 after he had served nine months’ detention, subject to the conditions of the order suspending sentence.
On 5 and 6 June 2022, the appellant committed further offending. He was arrested on 6 June 2022 and charged with one count of aggravated robbery, one count of unlawfully using a motor vehicle in circumstances of aggravation, one count of property damage and one count of unlawfully entering a building with intent to steal.
On 16 August 2022, the appellant was granted bail to reside at the Saltbush supported bail accommodation and to participate in the CAAPS drug and alcohol program on an outreach basis. The bail conditions included that the appellant follow all reasonable directions of a community youth justice officer (‘CYJO’), and after completion of the CAAPS program that the appellant reside at an address as approved and directed by a CYJO, submit to drug testing as directed by a CYJO or a Police officer, participate and engage in support services as directed by a CYJO, not attend the Humpty Doo shopping centre or tavern, wear an electronic monitoring device, follow the electronic monitoring rules, not tamper with the device and charge it every day, and not associate with identified persons (co-offenders).
On 10 October 2022, the fresh charges were committed to the Supreme Court, and bail was varied to remove the conditions about residing at Saltbush and completing the CAAPS program, and to vary the residence condition to provide for residence at an identified address or as otherwise directed by a CYJO.
On 31 October 2022, the appellant committed further offending, namely receiving stolen alcohol. He was arrested on 3 November 2022 and granted bail on 10 November 2022. The bail conditions then were to follow the directions of a CYJO, to reside at the identified address or as directed by a CYJO, to submit to drug and alcohol testing as directed by a CYJO or a Police officer, to participate and engage in support services as directed by a CYJO, to submit to a curfew at identified times or as directed by a CYJO, and to not attend the Humpty Doo shopping centre or tavern.
On 16 March 2023, the appellant was dealt with on an application for breach of the conditions of the sentence the subject of this appeal. The application related to the appellant’s continuing use of cannabis which showed up in urinalysis testing. That testing showed the appellant was using cannabis between September 2022 and March 2023. This breach was admitted by the appellant. Territory Families reported that, aside from the cannabis use, the appellant had been doing very well and his engagement with supervision had been excellent. The Court was asked to vary the conditions of the suspended sentence to delete the condition that he not use cannabis, and to vary the condition about drug testing to provide that the appellant submit to drug testing as directed by a CYJO for the purpose of case management and harm minimisation only. The sentencing Judge found the breach proved and no further action was taken in relation to the breach. The condition as to drug testing was varied as requested. The Court also had before it a breach of bail charge referring to the same conduct as comprised the breach of the conditions of the order suspending sentence. The breach of bail charge was adjourned to the date on which the sentencing Judge was to take pleas and sentence the appellant for the fresh offending. That date was after the hearing of this appeal.
On 17 March 2023, the appellant was dealt by the Youth Justice Court for the stolen alcohol charge and received a ‘no further trouble order’ under s 83(1)(c) of the Youth Justice Act 2005 (NT). The matter was adjourned to a date after the date this appeal was heard and the bail conditions were dispensed with.
On 5 June 2023, the appellant entered pleas of guilty to charges related to the further offending which had been committed on 5 and 6 June 2022. Sentencing was adjourned to after this Court determines this appeal.
Ground 1: Manifest excess
The appellant contends that both the individual sentences and the total effective sentence were manifestly excessive.
Legal principles
The principles applicable to an appeal against sentence on the ground of manifest excess are clear, and were conveniently described in Forrest v The Queen [2017] NTCCA 5 (at [63]-[64]) and Edmond & Moreen v The Queen [2017] NTCCA 9 (at [4]). Those principles are:
(a)The sentence is not to be disturbed on appeal unless error is shown.
(b)The presumption is that there is no error.
(c)Appellate intervention is not justified simply because the sentence is markedly different from sentences imposed in other cases.
(d)Intervention is warranted only where the difference is such that in all the circumstances the appellate court concludes there must have been some misapplication of principle, even though where and how is not apparent from the reasons.
(e)Manifest excess does not depend upon attribution of specific error. The relevant test is whether the sentence was unreasonable or plainly unjust.
(f)It must be shown that the sentence was clearly, not just arguably, excessive.
(g)There is no one single correct sentence. There can be compliance with appropriate sentencing principles notwithstanding there may be differences of judicial opinion concerning the result.
The relevant considerations in such an appeal are the maximum penalty for the offence, the place which the criminal conduct occupies in the scale of seriousness of offences of the type committed by the appellant, the standards of sentencing customarily imposed for the offence and the personal circumstances of the offender.[3]
Where the offending lies in the objective range of seriousness
The sentencing Judge did not characterise the objective seriousness of the instances of offending by reference to their place in the ranges of seriousness; and nor is it necessary for a sentencing Judge to make an express characterisation in that respect. The appellant argued that the offences were in the mid-range of objective seriousness, with the appellant an active participant in the offending. The Crown did not argue against that characterisation.
The aggravated robbery on file 22040211 involved a child victim out late at night with no adults present. It was committed in the company of another, and in the presence of others who stood by watching. The appellant was the one who took the victim’s items of property (other than the bike), and who made two threats to ‘shiv’ or stab him, the latter of which included showing a handle under this shirt which the victim believed was a knife. The victim was punched once to the face with full force, by the co-offender, causing pain. After the offending, the appellant showed a callous disregard for the victim’s suffering.
The offending was unsophisticated and largely spontaneous, with the pre-planning limited to the formation of the common intention to rob the victim. There was a single application of force, by the appellant’s co-offender, and no weapon was used. The victim was the same age as the appellant and did not suffer any physical injury. The value of the items stolen was not substantial.
The aggravated robbery on file 22121586 was more serious. It was committed whilst the appellant was on bail, and involved two child victims. It was committed in the company of eight other offenders. The offending was violent in nature, particularly in relation to the male victim, who was punched to the head and body multiple times whilst standing, and punched and kicked multiple times to the head and body whilst lying or kneeling on the ground. The appellant punched the victim multiple times to the head, and kicked him three times hard to the head, both whilst he was on the ground, and also punched him to the face whilst he was being held by a bystander. Again, after the offending, the appellant showed a callous disregard for the suffering of the victim. The victim suffered bruising, grazes and cuts to his head and body. It was no doubt a frightening ordeal for both victims.
The infliction of violence was ongoing and continued beyond the initial violence done to effect the theft, which is an aggravating feature of the offending.[4] However, the violent conduct was prolonged because the male victim physically re-engaged with the group four times after they had walked away from him, seeking to get his property back. The female victim also physically engaged with the group after she had first walked away, enlivening the physical violence against her, and then re-engaged with the group after they had walked away, resulting in further physical violence against her. That is in no way to condone the violence done to both victims. It is simply to recognise that, to the extent the violence was prolonged and exceeded that necessary to effect the theft, that was a largely a consequence of the victims’ actions, which reduces the aggravating effect of that feature of the offending. It is further to recognise that the aggravating feature that the victims were unable to retreat or escape was not present.[5]
The offending was unsophisticated and spontaneous. No weapon was used. The victims were a little older than the appellant. One did not suffer any physical injury and the other suffered minor physical injuries. The value of the items stolen was not substantial.
The victims of the aggravated robberies were not of a class of vulnerable people who work alone at night and provide a valuable service to the community, and who need to be protected by the law, such as taxi drivers, service station attendants or shop keepers.[6] This is simply to note the absence of that as an aggravating feature of the appellant’s offending.
The unlawful entry and stealing were more serious examples of those types of offending. They involved forced entry into a dwelling, with the intention of stealing, in company with two others, armed with inherently dangerous weapons (knives) with the intention of using them to cause fear or injury to any occupants. The offending was brazenly committed in daylight and despite awareness of the presence of CCTV cameras. The home was fortunately unoccupied at the time, but the offenders wantonly disordered the premises in a manner that cost a significant amount of money to rectify, and stole numerous items of property of significant value. The victim and his children have suffered ongoing psychological and emotional effects from the intrusion into their home and the loss of their possessions.

Having regard to the nature of the offending the subject of the other sentencing cases which are considered below, the aggravated robbery in file 22040211 is properly characterised in the low-range of objective seriousness, and the aggravated robbery in file 22121586 is properly characterised as offending towards the lower end of the scale, rather than both offences falling squarely within the mid-range of seriousness. The unlawful entry and stealing offences fall within the mid-range of seriousness for that kind of offending. The property damage offence is at the lower end of the range.
Sentences imposed for aggravated robbery by youths
The starting point for the appellant's contention was that before the stated discount of 20% for the guilty plea, the appellant’s total effective sentence was imprisonment for a period in excess of five and a half years[7] for a 14 year old with cognitive deficits and a deprived and dysfunctional upbringing. The appellant sought to demonstrate that this sentence was manifestly excessive by reference to the sentences imposed in other cases in which mostly older youths who had committed aggravated robbery received significantly lower sentences to imprisonment.
The appellant provided two tables of comparative sentences imposed by the Supreme Court for aggravated robberies committed by youths. The first table extracted 53 cases involving armed robbery committed by youths in company determined between 1 January 2008 and 21 March 2021. About half of those involved sentences for a single count. The other half involved sentences for more than one offence, including one or more aggravated robberies. The sentences ranged from good behaviour bonds for 12 months to imprisonment for six years before the discount for the plea. The second table extracted 25 cases involving aggravated robbery committed by youths in company with harm to the victim determined between 1 January 2012 and 22 March 2022. Around 70% of those involved sentences for a single count and the rest involved sentences for more than one offence, including one or more aggravated robberies. The sentences ranged from good behaviour bonds for six months to imprisonment for four years before the discount for the plea.
Together, the tables identified 78 cases involving aggravated robbery committed by youths in company involving weapons or harm to the victim between January 2008 and March 2022, with sentences ranging from a six month good behaviour bond to imprisonment for six years before the discount for the plea.
A rational comparison between sentences requires the conversion of all sentences to the sentence before any discount given for the plea. This is necessary because the discount for the plea is discretionary and no rate was uniformly applied in the cases in the table. In the reasons that follow, all references to sentences identified in the table are to the sentence before the discount for the plea. Where no discount was stated in the sentencing remarks, for the purpose of the analysis the discount is assumed to have been 25%. A rational comparison between sentences also requires acknowledgement of the number and nature of other offences for which the total sentence was imposed.
The appellant’s total effective sentence was five years and seven months for the two aggravated robberies and the single counts of property damage, unlawful entry and stealing. Before the discount for the plea, the appellant’s sentences for the aggravated robberies were four years and three years and two months respectively, with one year of the second sentence to be served cumulatively on the first sentence (plus some months when the effect of the discount is removed). For the two aggravated robberies, the sentences before the discount totalled five years and approximately two months (accounting for the effect of the discount on the accumulation). The sentences for the property damage, unlawful entry and stealing were concurrent with each other, and cumulative on the aggravated robbery sentences only to the extent of five months (allowing an extra month when the effect of the discount is removed). This effectively means that those sentences only contributed approximately five additional months to the total sentence of five years and seven months.
The appellant’s total sentence of five years and seven months exceeds all but three of the 78 sentences set out in the appellant’s tables of comparative sentences imposed on youths by the Supreme Court for aggravated robbery committed in company between January 2008 and March 2022.
To take an example at the upper end of the range of sentencing outcomes, a sentence of six years’ imprisonment was imposed on a 16 year old youth for a single count of aggravated robbery committed in company with a co-offender. The offender had a lengthy criminal history but no convictions for violence. During the course of the robbery the offender stabbed and slashed the victim to the ribs, back, shoulders and head with a knife. As this was taking place, the victim was on the ground shielding his baby with his body. The offender inflicted 10 stab wounds and life threatening injuries to the victim.[8] The co-offender was also 16 years old but with no prior convictions. He was not armed with a knife but attacked the victim with his hands and feet, striking him to the face, chest, neck, shoulders and back, including whilst the victim was being stabbed and slashed by the principal offender. The co-offender was sentenced to imprisonment for five years.[9]
To take another example at the upper end of the range, a total sentence of six years’ imprisonment was imposed on a 16 year old youth for a single count of aggravated robbery committed in company with two others and some 14 other offences of unlawful entry and stealing (with an additional 43 listed offences to be taken into account in accordance with the mechanism in s 107 of the Sentencing Act 1995 (NT)). The offender had no prior criminal history. The victim of the robbery was of a 58 year old disabled pensioner in his home, the offenders disguised themselves, and one of the co-offenders was armed with a jemmy bar. Another of the co-offenders knocked on the victim’s door, and when the victim opened the door he was pushed to the floor and threatened by the offender demanding money. The offender kicked and punched the victim to the head and body causing fractures to his eye socket and jaw, and a laceration above his eye. The offenders demanded his credit card and PIN. The victim gave them his credit card but provided a false PIN, and when the offenders discovered this they returned to the home, again threatened the victim, obtained the true PIN and withdrew cash from his account.[10] The sentence for the aggravated robbery was three years and four months.
The co-offender armed with the jemmy bar, who was also 16 years old and with no prior convictions, received a total sentence of five years and eight months for the aggravated robbery and some 14 other offences of unlawful entry and stealing (also with additional listed offences to be taken into account). The component of the sentence imposed for the aggravated robbery was three years.[11]
Those are the three total sentences out of the 78 in the tables which exceeded the appellant’s total sentence. Each of them involved aggravated robberies of a far greater degree of seriousness than the appellant’s offending, most notably in relation to the degree of violence involved and the serious injuries suffered by the victims. Those offenders were also significantly older than the appellant.
The next longest sentence identified in the tables was a total sentence of four years and 11 months imposed for a count of attempted robbery, a count of recklessly endangering serious harm by driving and a count of aggravated robbery in company with two others. The offender in that case was a 16 year old youth with a large number of prior convictions, including over 20 for violence. During the course of the robbery he was armed with a mop handle which he used to strike the victim to the arm. He also punched the victim to the face and stole his wallet. The co-offenders then kicked, punched and struck the victim to the head with a metal wheel brace, rendering him unconscious and causing pain and severe swelling to his eye such that he could not see out of it for a period of time. The victim also suffered cuts to his elbows, knees and arms.[12] The component of the sentence imposed for the aggravated robbery was two years.
The next longest sentence identified in the tables was a sentence of four years and six months imposed for a single count of aggravated robbery committed in company with three others. The offender was a 15 year old youth with a limited criminal history which did not include offences of violence. The 17 year old victim was attacked in her home after she let one of the offenders in to have a drink of water, and was then pushed, slapped to the face, prevented from leaving, kneed to the head numerous times, struck to the head with a fire extinguisher and other things, whipped with cords, threatened with a knife (held by the offender), and hit with a curtain rod.[13] The offender did not inflict any of the actual violence, but at times encouraged the others to do so. The victim did not sustain any serious injuries. The offender’s three co-offenders, aged 13, 15 and 16, none of whom had priors, each received sentences of three years and four months.[14]
The next longest sentence identified in the tables was a total sentence of four years and four months imposed for aggravated unlawful entry, unlawful use of a motor vehicle and aggravated robbery committed in company with four others. The offender was a 17 year old with an extensive criminal history. The offender and his co-offenders drove a stolen car to a lodge to break in and steal alcohol. They got into the loading bay and disturbed the victim, who saw the offenders, including a co-offender brandishing an axe at him. The victim ran inside the lodge and locked the door. The offender and his co-offenders used considerable force to break through the door, they walked in with a co-offender still brandishing the axe, the appellant and the co-offender threatened the victim, the co-offender cut the phone line with the axe, the group stole alcohol worth around $2,400, and then drove off in the stolen car.[15] The offender’s sentence for the aggravated robbery was three years and four months.
A 16 year old co-offender with priors for violence and property offences who was sentenced to imprisonment for three years and eight months, two years and nine months of which was referable to the robbery offence, subsequently brought an appeal on the ground of manifest excess. He was resentenced by the Court of Criminal Appeal to a total sentence of two years and four months, two years of which was referable to the robbery offence.[16]
The tables identified five sentences of four years imposed for aggravated robbery.
The first of those was a total sentence of four years imposed for two counts of aggravated robbery on a 15 year old youth with no prior criminal history.[17] The first count, committed in company with two others, involved a robbery of a service station where the offenders had concealed their faces, a co-offender brandished a knife and demanded money while the offender stood guard at the door, and the victim put $800 cash into a bag held by a co-offender while another co-offender took cigarettes and the offender took soft drink. The second count involved a robbery of a service station where the co-offender threatened staff with a knife, smashed a display case and stole mobile phones. No actual violence was inflicted on the victims during the course of either offence, although the victim of the first offence turned and hit her hand on the tip of the knife. A sentence of two years and eight months was imposed for each count. The offender’s two co-offenders on the first count, who were aged 14 and 15 and had no criminal history, each received sentences of imprisonment for two years and eight months.[18]
The second four-year sentence identified in the tables was imposed for a single count of aggravated robbery committed by the offender in company with four others. The offender was a 14 year old with a prior conviction for violent offending and numerous prior convictions for dishonesty, unlawful entry and stealing. The offender and his co-offenders decided to rob the victim, they followed her as she walked alone at night, they approached her and punched then hit and kicked her as she lay on the ground, and they dragged her to an unlit location where they again punched and kicked her, and searched through her pockets. One co-offender unbuttoned the victim's jeans and attempted to remove them. The victim believed she was about to be raped and yelled for help. As that was happening, another co-offender found cannabis in the victim’s bra and the assault ceased when they decided to go somewhere else to smoke the cannabis.[19]
The third four-year sentence identified in the tables was imposed on one of the other participants in the aggravated robbery described in the preceding paragraph. The offender was 17 years old with a lengthy criminal history. He was the one who unbuttoned the victim’s jeans and attempted to remove them.[20] Another of the co-offenders, who was aged 15 and had no prior convictions, was sentenced to three years and six months.[21]
The fourth four-year sentence identified in the tables was imposed for a single count of aggravated robbery committed in company with two others. The offender was a 17 year old with extensive prior convictions, including two aggravated assaults and one assault on a worker. The offender and his co-offenders planned to rob a service station at night, they concealed their identities, and the offender entered the service station armed with a knife while one co-offender waited outside as a look out and the other co-offender distracted the console operator. The offender went behind the counter armed with the knife, ran towards the operator and threatened him by holding the knife about 30 centimetres away from him and demanding money. The offender then grabbed the till money and ran from the scene with the co-offenders.[22] The co-offender who distracted the console operator, who was 16 years old with some prior criminal offences but none for violent offending, was sentenced to imprisonment for 18 months.[23]
The final four-year sentence identified in the tables was imposed for a single count of aggravated robbery committed in company with one other. The offender was a 15 year old with numerous prior convictions but none for violent offending. The offender and his co-offender pulled alongside the victim in a car, got out and approached her. The offender was holding a knife. The co-offender demanded money and took the victim’s phone. The offender tried to take the victim’s handbag from her hands. As this was happening, the victim heard a male voice from the car telling her to hand over the handbag. The victim released the handbag when she saw the offender was holding a knife in a threatening manner. The offender and his co-offender then got in the car and left.[24]
Of the 78 cases in the tables, 44 of them involved an application of actual violence on the victim. Of those:
(a)31 resulted in the victim sustaining either no injuries or minor injuries not requiring medical attention, such as swelling, bruising, a bleeding nose or minor lacerations;
(b)40 resulted in the victim sustaining injuries requiring medical attention, but which were not serious or long-standing; and
(b)seven resulted in the victim sustaining serious injuries which were life threatening or likely to have permanent ongoing effects.
Of those seven cases involving serious injuries, six have been described in the preceding discussion. In those matters, sentences ranging from six years down to two years were imposed, depending upon the personal circumstances of the offender and his individual involvement in the offending and the infliction of injury.
In the seventh of those cases, a total sentence of two years and eight months’ imprisonment was imposed for a count of property damage, a count of unlawful entry, a count of causing serious harm and a count of aggravated robbery in company with two others. The offender was a 16 year old with no criminal history. The offender and his co-offenders broke into a liquor store at night, they were confronted by the victim who grabbed the offender, and a struggle ensured during which the offender hit the victim to the head with a bottle. As a result, the victim suffered cuts to his head and neck, one of which partially severed his ear and cut the ear canal. Those injuries required surgery and caused hearing loss, scarring and disfigurement.[25] The aggregate sentence for the aggravated robbery and causing serious harm was two years.
For single counts of aggravated robbery, there were only three sentences out of the 78 in the table that exceeded the appellant’s sentence of four years, each of which was far more serious offending than the appellant’s, including because of the serious injuries suffered by the victims. Of the four sentences of four years’ imprisonment imposed for a single count of aggravated robbery, with the exception of the offending described in paragraph [86] above, the objective seriousness of that offending was significantly higher than that of the appellant’s offending. Again, with one exception, each of those offenders was older than the appellant, with most being 16 or 17 years of age.
Of the 78 sentences identified in the tables, 26 of them were imposed on youths who were aged 14 or younger at the time of the offending. The sentences ranged from total sentences of a good behaviour bond of six months to imprisonment for four years. Of those 26 sentences:
(a)eight were good behaviour bonds;
(b)three were sentences of imprisonment of 12 months or less;
(c)nine were sentences of imprisonment of more than 12 months and less than two years;
(d)four were sentences of imprisonment of more than two years and less than three years; and
(e)two were sentences of imprisonment of more than three years.
The two sentences of imprisonment of more than three years were the sentence of three years and four months in TSS,[26] and the sentence of four years in TM.[27]
As regards the four sentences of imprisonment of over two years and under three years, one was the sentence of two years and eight months in FM.[28]
The second was a sentence of two years and eight months imposed for one count of sexual intercourse with a child and one count of aggravated robbery committed on a store in company with a co-offender. The offender was 12 years old with prior convictions for property offences, but none for violent offending. During the course of the robbery, the offender jumped onto the counter, kicked the victim in the face, wrestled with the victim while trying to take her phone, kicked the victim twice more, took $500 cash and then ran from the store.[29] The victim suffered bruising, redness, pain, a loosened denture bridge and had to have 6 teeth removed. The component of the sentence for the aggravated robbery was imprisonment for two years. The offender’s 16 year old co-offender, who had a lengthy criminal history, but no priors for violent offending, was sentenced to two years and four months.
The third sentence of imprisonment of over two years and under three years was a sentence of two years and eight months for two counts of stealing, a count of assault, a count of property damage, a count of attempted aggravated robbery and a count of aggravated robbery committed in company with five others. The offender was a 13 year old with no criminal history. During the course of the robbery the offender pushed the victim, one co-offender punched her to the neck and another co-offender took her backpack. The offender then punched the victim to the face causing her to fall to the ground, and while she was on the ground kicked her to the face causing bruising and swelling. A co-offender grabbed her phone and the group ran off.[30] The component of the sentence for the aggravated robbery was imprisonment for two years.

The final sentence of imprisonment of over two years and under three years was an aggregate sentence of three years imposed for two counts of unlawful entry with intent to steal, three counts of property damage, two counts of stealing and a count of aggravated robbery committed in company with a large group of co-offenders. The offender was 12 years of age (but about to turn 13) with no criminal history. The offender approached a couple asking for money. While they were distracted, a co-offender punched the male victim to the face. The offender then punched the victim in the face and kicked him in the ribs. The other co-offenders joined in further kicking the victim. He was hit or kicked a total of seven to 10 times. The offender demanded the victim’s bracelet and tried to pull it off before the victim handed it over. The offender then demanded the victim's rings, and a number of co-offenders tried unsuccessfully to pull the rings off his fingers before running off.[31] The victim suffered pain and swelling to his face as a result of the assault.
The total sentence imposed on the appellant exceeded all 26 sentences identified in the tables which have previously been imposed on an offender 14 years of age or younger. The appellant’s sentence of four years for the aggravated robbery exceeded all bar one of the 26 sentences which have previously been imposed on an offender 14 years of age or younger, and the offending in that case was far more serious than the appellant’s offending.[32] The appellant’s sentence of three years for the other aggravated robbery exceeded all bar two of the 26 sentences identified in the tables as imposed on an offender 14 years of age or younger.[33] Again, the offending in those cases was far more serious than the appellant’s offending.
Finally, there is the appellant’s co-offender, RR, who was 13 years old at the time of the offending, had no prior criminal history and had been diagnosed with Foetal Alcohol Spectrum Disorder. He was sentenced to imprisonment for two years for his role in the aggravated robbery with the appellant, and to imprisonment for 18 months for his role in the property damage, unlawful entry and stealing with the appellant. The total effective sentence imposed on RR was two years and six months for that offending and two further counts each of property damage, unlawful entry and stealing.
Conclusion regarding manifest excess
In assessing a contention that a sentence imposed is manifestly excessive ‘[i]t is not this Court’s task to see whether the sentencing under appeal is more severe or lenient than a particular sentence within the range, imposed on a person not a co-offender in the particular crime’.[34] There is limited utility in searching for points of similarity or distinction between a case on appeal and another individual case in which a shorter or longer sentence has been fixed for the same statutory offence, but in relation to a different offender and episode of offending. This is because the circumstances of an offender and the offending are unique, and an appellate court is bound to allow to sentencing judges ‘as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies’.[35] Consistently with that approach, in Emitja v The Queen this Court confirmed that a collation of appropriate sentences may comprise a ‘standard’ for a particular crime, but not a fixed range departure from which will necessarily found demonstrable error.[36]
Although a body of comparative sentences will not in themselves be determinative, they may be of assistance in the assessment of manifest excess or inadequacy. In The Queen v Pham, French CJ, Keane and Nettle JJ said (footnote omitted):[37]
Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.
In The Queen v Kilic, the High Court considered the operation of s 5(2)(b) of the Sentencing Act 1991 (Vic) requiring courts in Victoria to have regard to ‘current sentencing practices’.[38] The purpose of the section was said to be to ‘promote consistency of approach in the sentencing of offenders’.[39] Although there is no equivalent requirement in the Northern Territory legislation, the High Court’s observations concerning the approach to be taken to current sentencing practices also have application in the Territory context. Regard to current practice is an essential part of the appellate function of minimising disparities in sentencing standards, and the process of comparison has long been recognised as a legitimate forensic tool for that purpose.[40] The High Court in Kilic held that similar cases may provide a yardstick which assists in achieving consistency in sentencing, but that the yardstick:[41]
… does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed; rather the range of sentences imposed in the past may inform a “broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle”.
Kilic confirms that each sentencing exercise turns on its particular facts and circumstances. Although the circumstances of a given case may represent a serious instance of offending, if the offending is not so serious as to warrant the imposition of the maximum prescribed ‘a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the “spectrum” that extends from the least serious instances of the offence to the worst category, properly so called’.[42]
In the application of those principles to the present case, the total effective sentence before the discount of five years and seven months, the effective sentence for the two counts of aggravated robbery of five years and five months before the discount, and the individual sentences for the two counts of aggravated robbery of four years and three years are markedly different from other sentences imposed in other cases of aggravated robbery committed by youths in company. That, of itself, does not justify appellate intervention. However, the marked differences which we have described between the appellant’s sentences and those in the other cases are such that there must have been some misapplication of principle, even though where and how is not apparent from the reasons.
The appellant’s offending the subject of the aggravated robberies is nowhere near the most serious of the offending in the 78 cases identified in the tables; the appellant had nowhere near the most extensive of criminal histories of the offenders in those cases; and the appellant was amongst the younger of the offenders in those cases. Despite those relativities, the appellant's total sentence was exceeded by only three of those 78 cases, and his sentence of four years for a single count of aggravated robbery was exceeded by only three of those cases, and equalled another four of those cases. Further, the appellant’s total sentence was the longest imposed on a 14 year old or younger in the 26 cases involving offenders of that age, and the appellant’s sentence of four years for a single count was only exceeded by one other sentence imposed on a 14 year old or younger. The appellant’s sentence of three years for a single count of aggravated robbery was only exceeded by two of the 26 cases involving offenders of that age.
There was also a marked disparity between the length of the sentences imposed on the appellant and those imposed on other offenders in the comparative cases which bore the closest similarity to the objective seriousness of the appellant’s offending and his personal circumstances. It must also be recognised that although many of the offenders in those comparative cases also came from straitened circumstances, the appellant’s background was one of profound deprivation and cognitive and linguistic impairment.
This process of comparison demonstrates that the appellant’s total sentence and the individual sentences for the aggravated robberies were plainly excessive and Ground 1 is made out. That conclusion is in no way inconsistent with the principles laid down by this Court in R v Stokes.[43] In that case, the Court stated that very severe punishment was required for those who commit armed robbery, even youthful offenders. That is because it is a crime where there is less room for subjective factors to be considered in mitigation. A sentence involving imprisonment is by far the most common disposition in such cases, even where the offender is a youth. However, youth and personal circumstances remain important considerations when sentencing youthful offenders, and the period of imprisonment imposed must accord with current sentencing practices.
Grounds 2 and 3
The conclusion in relation to Ground 1 makes it unnecessary to consider the other grounds relied on by the appellant. However, we will deal briefly with those grounds in order to dispel any potential misapprehension about the basis for allowing the appeal. We do not accept that the appellant has established that the sentencing Judge either misunderstood and misapplied the mitigating principles relating to intellectual and psychological deficit, or failed to apply and recognise the mitigating effect of social disadvantage. The sentencing Judge made express reference to both of these matters in her sentencing remarks.[44]
Her Honour expressly noted that she was placing less weight on general deterrence because of the appellant’s intellectual disability.[45] Her Honour’s statement that she was ‘not taking very much notice of’ a submission that the intellectual disability reduced moral culpability because it was clear the appellant knew that what he was doing was wrong,[46] does not indicate an error of principle. Her Honour was deliberately expressing her sentencing remarks in a way that the appellant could understand. In doing so, her Honour accepted that the need for general deterrence was moderated (something that may flow from a reduction in moral culpability), she did give the submission some weight (‘notice’), and she acknowledged that she had to balance the need for community protection against these matters.
The appellant argued that her Honour’s failure to make a similar express reference to the appellant’s deprived background in the part of her sentencing remarks where she gave consideration to factors such as general deterrence meant that she did not take account of the appellant’s deprived background in sentencing. Her Honour did refer to the appellant’s deprived background in her sentencing remarks. It cannot therefore be concluded that she did not take into account those personal circumstances, and in any event, it cannot be said that a markedly different sentence would have followed if she did take that into account.[47] As the appellant’s counsel submitted on sentencing, the appellant’s background of dysfunction and deprivation would not moderate general deterrence to a great extent,[48] and as the High Court recognised in Bugmy v The Queen,[49] while a deprived background may explain an offender’s recourse to violence such that the offender’s moral culpability for an inability to control a violent response may be reduced, the inability may increase the importance of protecting the community from the offender. The appellant’s counsel on sentencing agreed with the sentencing Judge that community protection was an important consideration in the sentencing exercise.[50]
These grounds of appeal are dismissed.

Disposition and resentence

We make the following orders:
1.The appeal is allowed.
2.Save as to the convictions imposed on each Count on both files, which are affirmed, the sentence imposed by the sentencing Judge is set aside.
3.Pursuant to s 82(1)(b) of the Youth Justice Act 2005 (NT) and the Sentencing Act 1995 (NT), with a 20% discount for the guilty pleas, the appellant is re-sentenced to a total effective sentence of imprisonment for three years, as follows:
(a)     two years and four months for the aggravated robbery on file 22121586;
(b)     two years for the aggravated robbery on file 22040211 (Count 1), with 4 months to be served cumulatively upon the sentence on file 22121586;
(c)     four months for the criminal damage (Count 2);
(d)     19 months for the unlawful entry (Count 3); and
(e)     10 months for the stealing (Count 4), with each of the sentences on Counts 2, 3 and 4 to be served concurrently with each other, and cumulatively as to six months on the sentence on Count 1.
4.The sentence is backdated to 22 March 2021, and suspended after nine months on the amended conditions imposed by the sentencing Judge on 16 March 2023.
5.An operational period of two years and three months from the date of release is fixed for the purposes of ss 40(6) and 43 of the Sentencing Act 1995 (NT).

_______________________

[1] It was agreed for the purpose of the sentencing proceedings that the Crown could not prove the appellant did have a knife.

[2] It appears the writer was not provided with the 2017 speech pathology assessment report or the 2018 cognitive assessment report.

[3] Edmond & Moreen v The Queen [2017] NTCCA 9 at [30] per Grant CJ and Hiley J, citing Phan v Western Australia [2014] WASCA 144 at [19] per Mazza JA (Martin CJ and Buss JA agreeing).

[4] See, for example, The Queen v Ryan [2019] NTCCA 20 at [33] and [46] per Grant CJ, Barr and Hiley JJ.

[5] The Queen v Ryan [2019] NTCCA 20 at [47] per Grant CJ, Barr and Hiley JJ.

[6] Ibid at [45] per Grant CJ, Barr and Hiley JJ, citing Edmond & Moreen v The Queen [2017] NTCCA 9 at [65] per Grant CJ and Hiley J (Blokland J agreeing).

[7] The precise calculation yields a head sentence of five years and seven months before discount.

[8] See GWF, 16 September 2010, Kelly J.

[9] See ME, 21 December 2010, Southwood J.

[10] See Strange, 10 December 2008, Riley J.

[11] See KT, 16 December 2008, Riley J.

[12] See DV, 31 July 2014, Barr J.

[13] See KAR, 29 September 2010, Mildren J.

[14] See TSS, 30 November 2010, Mildren J; SG, 12 October 2010, Mildren J; EG, 12 October 2010, Mildren J.

[15] See AL, 8 February 2018, Hiley J.

[16] See ML v The Queen (2018) 341 FLR 402 at [35]-[36], [81]-[82] per Grant CJ, Southwood and Blokland JJ.

[17] See RM, 2 January 2008, Riley J.

[18] See TT, 11 July 2008, Mildren J; FM, 2 January 2008, Riley J.

[19] See TM, 13 May 2016, Kelly J. This sentence was upheld on appeal: TM v The Queen [2017] NTCCA 3.

[20] See CJ, 13 May 2016, Kelly J.

[21] See DD, 13 May 2016, Kelly J.

[22] See BU, 27 February 2018, Blokland J.

[23] See LH, 28 June 2018, Southwood J.

[24] See AA, 13 April 2017, Southwood J.

[25] See LG, 5 August 2010, Blokland J.

[26] See footnote 14 above. TSS, 30 November 2010, Mildren J.

[27] See footnote 19 above. TM, 13 May 2016, Kelly J; upheld on appeal: TM v The Queen [2017] NTCCA 3.

[28] See footnote 18 above. FM, 2 January 2008, Riley J.

[29] See JL, 8 June 2021, Southwood J.

[30] See KP, 14 April 2016, Kelly J.

[31] See BB, 24 September 2013, Kelly J.

[32] See footnotes 19 and 28 above. TM, 13 May 2016, Kelly J; upheld on appeal: TM v The Queen [2017] NTCCA 3.

[33] In addition to TM, see footnotes 14 and 27 above. TSS, 30 November 2010, Mildren J.

[34]Wiren v The Queen (1996) 5 NTLR 211 at 220.

[35] Markarian v The Queen (2005) 228 CLR 357 at 371.

[36]Emitja v The Queen [2016] NTCCA 4 at [42]-[45]; citing Daniels v The Queen (2007) 20 NTLR 147.

[37]The Queen v Pham (2015) 256 CLR 550 at [28].

[38]The Queen v Kilic (2016) 259 CLR 256.

[39]Ibid at [21], with reference to s 1(a) of the Sentencing Act 1991 (Vic).

[40]Wong v The Queen (2001) 207 CLR 584 at [11]-[12] per Gleeson CJ.

[41] The Queen v Kilic (2016) 259 CLR 256 at [22]; citing Kilic v The Queen [2015] VSCA 331 at [48] and making reference to Director of Public Prosecutions (Vic) v OJA [2007] VSCA 129 at [30]–[31] per Nettle JA (Ashley and Redlich JJA agreeing at [71], [72]).

[42]The Queen v Kilic (2016) 259 CLR 256 at [19].

[43]R v Stokes (1997) 138 FLR 137.

[44] Sentencing Remarks, AB 82-83.

[45] Sentencing Remarks, AB 85.

[46] Sentencing Remarks, AB 85.

[47] See The Queen v Koumis (2008) 18 VR 434 at [64] per Redlich and Kellam JJA and Osborn AJA, citing House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ and The Queen v Okutgen (1982) 8 A Crim R 262.

[48] Transcript, AB 66.

[49] Bugmy v The Queen (2013) 249 CLR 571 at [44]-[45] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ.

[50] Transcript, AB 66.