AI v R

[2011] NSWCCA 95

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

AI v R; R v SB and AI [2011] NSWCCA 95

Hearing dates:

28 February 2011

Decision date:

21 April 2011

Before:

Hodgson JA at 1; Adams J at 85; Hall J at 86

Decision:

AI conviction appeal: appeal dismissed.

SB Crown sentence appeal: appeal dismissed.

AI Crown sentence appeal: appeal dismissed.

Catchwords:

CRIMINAL LAW - Appeal against conviction - Unreasonable verdict - Whether verdicts inconsistent.

CRIMINAL LAW - Crown appeals against sentences - Wounding with intent to do grievous bodily harm - Reckless wounding - Whether error by sentencing judge in assessing objective seriousness - Whether sentences manifestly inadequate - Relevance of youth of offenders - Exercise of discretion.

Legislation Cited:

Crimes Act 1900 ss.33; 35
Crimes (Sentencing Procedure) Act 1999 ss.21A, 54B

Cases Cited:

BP v R [2010] NSWCCA 159
Curtis v R [2007] NSWCCA 11
R v DGP [2009] NSWSC 1154
Gillard v R [2003] HCA 64; (2003) 219 CLR 1
KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571
Mulato v R [2006] NSWCCA 282
Vaelia v R [2010] NSWCCA 113
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168

Category:

Principal judgment

Parties:

2009/72037:
AI (appellant)
Regina (respondent)

2009/72038:
Regina (appellant)
SB (respondent)

2009/72037:
Regina (appellant)
AI (respondent)

Representation:

Counsel:
V LYDIARD (Crown)
I McLACHLAN (AI)
J TREVALLION (SB)
Solicitors:
S Kavanagh (Solicitor for Public Prosecutions)
Sharanica Danieli Lawyers (SB)
Jessop & Storm (AI)

File Number(s):

2009/72037; 2009/72038

 Decision under appeal 

Date of Decision:

2010-09-03 00:00:00

Before:

North DCJ

Judgment

1. HODGSON JA: On 23 March 2010, AI, JB and SB were arraigned before North DCJ on two counts, namely that they:

(1) On 20 March 2009 at Rockdale in the State of New South Wales wounded Jordan Ngatupuna with intent to do grievous bodily harm.

(2) (in the alternative) On 20 March 2009 at Rockdale in the State of New South Wales whilst in the company of each other recklessly wounded Jordan Ngatupuna.

1. The first charge was bought under s 33(1)(a) of the Crimes Act 1900, and carried a maximum penalty of twenty-five years imprisonment and a seven year standard non-parole period. The second charge was brought under s 35(3) of the Crimes Act , and carried a maximum penalty of ten years imprisonment.

1. Each defendant pleaded not guilty to both charges, and they were jointly tried before North DCJ and a jury.

1. On 9 April 2010, the jury returned the following verdicts:

AI: not guilty on count 1, guilty on count 2.

JB: not guilty on both counts.

SB: guilty on count 1.

1. On 3 September 2010, the trial judge imposed the following sentences:

AI: A non-parole period of 18 months commencing 26 March 2009 and expiring on 25 September 2010, and a parole period of imprisonment of 18 months to expire on 25 March 2012, to be served as a juvenile offender.

SB: A non-parole period of four years commencing on 22 March 2009 and expiring on 21 March 2013, and a parole period of imprisonment of three years to expire on 21 March 2016.

1. AI appeals (or seeks leave to appeal) against his conviction. The Crown appeals against the sentences imposed on AI and SB.

1. I will consider first AI's appeal, and then the Crown appeals.

Common ground

1. The charges related to events that occurred in the late afternoon of 20 March 2009 in the vicinity of the bus interchange adjacent to Rockdale Railway Station. AI was then 17 years old, JB was 15 years old, and JB's brother SB was 18 years old. The incident was captured on CCTV footage, which was shown to the jury and also to this Court.

1. Ultimately, there was and is little dispute as to the following broad outline of what happened.

1. AI, JB and SB were seated at the bus interchange. The victim and a William Poa walked from the train station and walked past the three accused. There was a verbal exchange, and the three accused got up and followed the victim and Mr Poa.

1. AI went up to the victim and Mr Poa and challenged them to fight, and shaped up at them. Mr Poa threw one or more punches at AI, with little effect. JB and SB had been alongside or following AI, and JB approached the victim and Mr Poa. The victim lunged at JB and punched him. SB then came up to the victim, and caused stab wounds to him. The victim fell to the ground with JB, and the stab wounds to his body occurred after this.

1. Meanwhile, AI had drawn a knife and had waved this at Mr Poa. Mr Poa retreated. AI went to where the victim was on the ground and kicked him. The three accused then ran away.

1. It was clearly proved (and not disputed on appeal) that as a result of the incident the victim had wounds to the back of his left arm and to his left buttock, and two knife wounds to his chest, one from the front and one from the back; that the victim lost four to five litres of blood; that the stab wounds to the chest were potentially fatal, and were consistent with stabbing by a penetrating object such as a knife with a sharp edge and a sharp tip; and that considerable force was required to inflict these wounds.

Crown case

1. The Crown case against AI was based on a joint criminal enterprise to assault the victim, and that it was within the contemplation of AI that a wounding or grievous bodily harm would be occasioned or that wounding or grievous bodily harm could result. I will outline some significant evidence in the Crown case.

1. The victim gave evidence, with reference to the three accused, that "they pretty much got up and aggressive towards us" after he had walked past; that "We walked for a little bit and then we noticed that they were coming"; that it was said in front of everyone that they couldn't fight where they were as there were too many cameras; that JB yelled out "These guys are just being bitches"; and that "The way they were approaching us, it was pretty clear that they were going to fight". The victim said "They've followed us from the initial contact, and it appeared that they weren't going anywhere and there was going to be a fight either way" and that "Their whole approach to us was aggressive". In answer as to who was interested in a fight, the victim replied "They were all there". With reference to JB, the victim said that "by the way he was looking at me and how he was reacting, it appears as if he was going to hit me"; and that he was "coming around the side to Will, then I stepped in and punched him".

1. The victim's evidence was that he punched JB because it looked as if JB was going to approach Mr Poa; that SB approached him from behind holding a knife like a kitchen knife or a steak knife; and that SB had not tried to pull him away from JB before stabbing him in the arm.

1. The victim was shown a silver sword style pendant (Exhibit G) which SB's father had given to the police (which had a handle about two and half centimetres long and a blade about eight centimetres long), and said "No way could it have been that item" with which he had been stabbed.

1. Mr Poa gave evidence that the three accused "were trying to provoke us and pushing us". He gave evidence that AI had a knife in his hand with a blade about ten centimetres long, which he pointed at him from a direction of one to two metres.

Defence case

1. AI gave evidence that Mr Poa threw punches at him, that he kept moving backwards, but that Mr Poa got one punch in. AI said he remembered he had a small pocketknife in his waistband and he pulled it out to scare Mr Poa and to keep him away. He did not do this to prevent Mr Poa from helping the victim, but to keep Mr Poa away from himself.

1. AI gave evidence that he did not stab anyone with his knife; that he did not know that either JB or SB had a knife; that he did not think either of them would stab the victim; that he did not see the victim get stabbed; that he first saw blood on the victim's back when the victim stood up as AI was running away; and that he did not know the victim had been stabbed until after the incident had finished.

1. JB gave evidence that on the day he was wearing a chain around his neck with a sword pendant. He gave evidence that the victim punched him a number of times; that he called out to SB; that the victim pulled his shirt over his head; and that he could hear SB scream at the victim to let him go. The victim fell to the ground and brought JB down on top of him; and JB hit the victim two or three times as the victim was still holding him. He could no longer feel the chain round his neck which had been choking him. He did not know what SB was doing because his eyes were closed. The victim let JB go, and he ran away. JB did not know the victim had been stabbed, he never saw any blood, he did not have a weapon and he did not know or expect that weapons would be used.

1. SB gave evidence that he heard JB scream for help; that he saw the victim punching JB and was scared for JB's safety; that he had never been in a fight before; that he ran up behind his brother and pulled; and that JB and the victim fell back. He saw JB's necklace fall off and picked it up and started swinging it at the victim, as he wanted to get his brother free. He was thus trying to defend his brother, but did understand he might hurt the victim. He thought that his brother could get hurt really seriously and that this was all he could do.

1. SB gave evidence that after they ran off, he threw the pendant into a canal. He said it was pretty much identical with Exhibit G.

Appeal ground

1. AI relies on the following ground of appeal:

The Jury verdict of guilty in relation to count 2 (alternative) against the appellant was unreasonable and cannot be supported having regard to the whole of the evidence and all of the relevant facts and circumstances of the case including the verdicts of not guilty on counts 1 & 2 against the co-offender [JB], and the verdict of guilty on count 1 against the co-offender [SB].

Appellant's submissions

1. Mr I McLachlan for AI accepted that the evidence in respect of count 2 was capable of supporting the jury verdict; and in particular accepted that it was theoretically open on the evidence for the jury to find:

(a) a joint criminal enterprise to assault the victim;

(b) that SB wounded the victim by stabbing him with intent to cause grievous bodily harm;

(c) that AI was in the company of SB at the time he wounded the victim;

(d) that SB in wounding the victim acted with excessive force in defending JB; and

(e) that AI was aware it was a possibility that in carrying out the joint criminal exercise SB might act with excessive force to defend JB.

1. However, he submitted that if the jury had found that such a joint criminal exercise existed, then on the particular facts of this case, it could only have been an enterprise in which all three accused were parties.

1. Mr McLachlan submitted that the evidence of a joint criminal enterprise involved JB as much as AI. For example, the victim's evidence was of aggressive behaviour by all three accused, that it was JB who yelled "these guys are just being bitches", and that JB looked as if he was going to hit him. Mr McLachlan submitted that in finding JB not guilty, the jury must have rejected the existence of a joint criminal enterprise.

1. Mr McLachlan submitted that the arguments put forward on behalf of AI denying involvement in a joint criminal enterprise were essentially the same as for JB, namely that AI (like JB) did not stab the victim, did not know SB would be armed with a knife, did not encourage JB to stab the victim and did not contemplate that the victim would be stabbed.

1. Mr McLachlan submitted that the jury must have convicted AI on some non-legal judgment about the respective immorality of each offender.

Decision on AI's appeal

1. I agree with Mr McLachlan's submissions that the jury's verdict against AI must be justified in part on the basis of a finding of a joint criminal enterprise.

1. However, in my opinion it was clearly open to the jury to be satisfied beyond reasonable doubt that JB was a party to a joint criminal enterprise to assault the victim, and yet not to be satisfied beyond reasonable doubt that he foresaw that, incidentally to this enterprise, SB might use a knife with the possibility that the victim would thereby be wounded. JB would on that basis be entitled to an acquittal on both counts.

1. In my opinion, consistently with this, it was open to the jury to be satisfied beyond reasonable doubt that AI was a party to the same criminal enterprise, but that AI did foresee that, incidentally to this joint criminal enterprise, SB might use a knife with the real possibility that the victim would thereby be wounded, and nevertheless proceeded with the enterprise. If the jury were so satisfied (but not satisfied that AI foresaw that SB might use the knife with the intention of causing the victim grievous bodily harm), then the appropriate result would be acquittal of AI on count 1 but conviction on count 2.

1. There are at least three considerations which could justify such a finding, in relation to AI, when a similar finding was not made in relation to JB:

(1) the evidence (and admission) that AI himself carried and wielded a knife;

(2) the undisputed evidence that AI kicked the victim when he was on the ground after being stabbed by JB; and

(3) the fact that all three accused gave evidence, and that the jury could have taken a different view as to the credibility of denials by AI and JB as to their knowledge concerning SB's possession and use of a knife.

1. In saying this, I do not overlook SB's evidence that the instrument he used to stab the victim was a pendant that JB had been wearing. In his remarks on sentence, the trial judge found beyond reasonable doubt that SB did not use that pendant to wound the victim but rather used a knife that SB must have brought to the scene. The trial judge relied particularly on evidence by the victim that he was stabbed first in the left arm while he, JB and SB were all still upright, and on the unlikelihood that the serious injuries to the victim's chest could have been caused by a pendant with a handle about two and half centimetres long. It was certainly open to the jury to reach this same conclusion.

1. Thus, in my opinion there is no inconsistency in the different verdicts in relation to the three participants in this joint illegal enterprise: cf Gillard v R [2003] HCA 64; (2003) 219 CLR 1 at [24]-[25].

1. For those reasons, in my opinion the appeal should be dismissed.

Remarks on sentence

1. Turning now to the Crown appeals on sentence, I have already noted the trial judge's finding beyond reasonable doubt that SB did not use JB's pendant in stabbing the victim.

1. In the remarks on sentence, the trial judge outlined the circumstances leading up to the confrontation, making a finding that the incident was precipitated by AI locking eyes with the victim. The trial judge found the following facts:

The CCTV clearly shows what happens from this point onwards. The offender [SB], although on the phone, is walking on the road with Mr Ngatupuna and Mr Poa inside on the footpath area with the other two accused in close proximity. The first actual attack was by the offender AI who rushes in, throws a punch that misses due to Mr Ngatupuna taking evasive action. The offender AI then jumps around. The offender AI goes to the roadway area. Soon after this Mr Poa rushes at Mr AI.

The Crown alleges that this is pre-emptive self defence. Whether it is or not is not of great import because shortly thereafter Mr Ngatupuna rushes [JB] who steps backwards. Again the Crown says this is pre-emptive self defence either by Mr Ngatupuna of himself or of his friend Mr Poa. Mr Ngatupuna is much bigger than [JB] and whether he just lost his temper due to provocation or not it is not necessary to decide whether this was pre-emptive self defence. The jury have obviously found that what happened thereafter in relation to both offenders AI and [SB] either did not amount to self defence or defence of another, or was clearly excessive self-defence.

I have found in relation to [SB] that I accept that what he did was excessive self-defence, not of himself, but of his brother [JB]. Shortly thereafter whilst facing each other and still both standing, that is, Mr Ngatupuna and [JB], the offender [SB] comes into the fight. I find that whilst still standing Mr Ngatupuna is stabbed in the left arm by [SB], his arm goes limp. I find that he and [JB] forced Mr Ngatupuna back across the footpath up against the Perspex wall. Throughout this Mr Ngatupuna is trapped.

I have already found that at no stage can the offender [SB] be seen to pick up his brother [JB]'s pendant. Meanwhile I find that Mr AI now armed with a knife is keeping Mr Poa at bay and away from the scene where the two [JB and SB] brothers are fighting with Mr Ngatupuna. I find that Mr AI rushes in twice to the melee between Mr Ngatupuna and the two [JB and SB] brothers. I find that Mr AI kicks at Mr Ngatupuna at one stage when running in. I find that the other wounds occasioned to Mr Ngatupuna occurred after he was stabbed in the left arm and whilst he had been forced to the ground by the two [JB and SB] brothers. I do not find that the offender AI at any stage, although armed with a knife, stabbed Mr Ngatupuna or indeed anyone else. After Mr Ngatupuna is stabbed all three then accused flee the scene. These facts I believe are consistent with the evidence, including the CCTV and the jury verdicts.

1. The trial judge then referred to the victim impact statement, noting that the victim was left lying severely wounded in the street, and that it was only due to prompt and excellent medical treatment at the hospital, when his heart evidently stopped several times, that he was able to survive.

1. The trial judge proceeded to assess the objective seriousness of SB's offence as follows:

It is clear from my earlier fact finding that Mr Ngatupuna, the victim, received serious injuries. Fortunately, the victim has made quite a good recovery, although I note that he evidently has some permanent nerve damage to the top of his legs and some muscle damage around his chest. He is of course left with the physical and psychological scars of the event. Despite the large and threatening blood loss the victim was released from hospital after one week.

It is also necessary to look at the degree of violence or the ferocity of the attack as these are material considerations on sentence. Here the offender [SB] has initially just been talking on the phone and shown little apparent interest in the lead up to the incident. Also, even acknowledging that Mr Poa and Mr Ngatupuna had been seriously provoked by the offender AI and to some extent [JB], it was still first Mr Poa and then Mr Ngatupuna who actually engaged in physical contact.

In this regard I note that the offender AI did throw a punch earlier which Mr Ngatupuna was able to evade. Mr Ngatupuna is a much bigger man than the offender [SB]'s brother [JB], and [JB] was clearly back-stepping following the lunge forward by Mr Ngatupuna. It is in this context that the offender [SB] becomes involved.

Due to the facts that I have found, although it cannot be seen on the CCTV, just shortly after or just prior to joining Mr Ngatupuna and [JB], that the offender [SB] has armed himself. The first wound occasioned to Mr Ngatupuna is whilst they are still standing. When they go to ground other wounds are inflicted by the offender [SB]. The degree of violence is therefore considerable but is tempered by the fact that [SB] clearly becomes engaged only after Mr Ngatupuna has physically attacked [JB].

Further, in assessing the objective gravity of the offence it is necessary to look at the intention with which the offender [SB] has inflicted the harm in this case on Mr Ngatupuna. In this regard, and also looking at the nature of the injuries inflicted, I will not take into account as an aggravating factor circumstances that would warrant conviction for more serious offences. On the question of intention the jury have clearly found that the offender [SB] intended to inflict grievous bodily harm.

However, I have found that he was motivated by a desire to extricate his brother [JB] from the much larger Mr Ngatupuna. This does not explain why both he and the offender AI found themselves outside Rockdale Station both armed with knives. On balance though I am willing to accept that due to the offender [SB]'s non aggressive behaviour in the lead up to the incident that using the knife was something that he did in the agony of the moment caused by his brother [JB] being attacked by Mr Ngatupuna. This to some extent lessens the objective gravity of this very serious offence.

There appears to be little evidence of this being a planned organised activity. I find that there was little deliberation and there was practically no time at all for the offender [SB] to react. Indeed, the stabbing incidents follow very quickly, his joining Mr Ngatupuna and [JB]. The offender gave evidence on trial and consistently stated that his motivation was to defend his brother. He repeated this on evidence on sentence.

However, even having found that he was in possession of a weapon I do not find that the offender [SB] set out that afternoon to use a knife and inflict grievous bodily harm on Mr Ngatupuna. The fight did not last long, but there was enough time for the offender [SB] to inflict a number of injuries. Despite the offender AI having initiated the whole incident I cannot come to the conclusion on all the evidence that [SB] was intervening in an assault to back his brother [JB] up. [SB] did not launch an unprovoked attack which would have been objectively more serious.

This is a case involving violence on the streets of Sydney and deterrence is always an important consideration. People need to be protected against unprovoked attacks whilst going about their ordinary business. Taking all these matters into account, in regard to the offender [SB], I have come to the conclusion that the objective seriousness of the offence falls below the middle range for offences of this kind, but not appreciably so.

1. The trial judge then considered the objective gravity of AI's offence:

In assessing the objective gravity of the offender AI's matter, I note that he was acquitted by the jury of the more serious charge and convicted on the count of reckless wounding in company, which carries ten years imprisonment. Further, the standard non parole period of four years is not applicable to this offence due to the offender being a juvenile at the time of its commission. Nevertheless a maximum penalty of ten years shows that it is considered to be serious by the legislature. As with the offender [SB] it is necessary to look at the extent and nature of the injuries, the degree of violence as well as the intention of the offender.

Here the jury verdict on the alternative count means that they have accepted that this offender did not intend, either directly or recklessly, that grievous bodily harm would be occasioned to Mr Ngatupuna. Further, the offender AI did not stab anyone. Although he was the initiator of the incident he was not, except for one kick, actually involved in the physical altercation that involved Mr Ngatupuna being wounded. The jury verdict means that he should have foreseen the possibility that Mr Ngatupuna would be wounded by the offender [SB] and it also means that they have accepted that he was acting in company.

A case involving significant wounding such as this does not by virtue of that factor alone fall into the worse case category. It is necessary to look at the offender's mental state. The offender was verbally and physically aggressive in the time leading up to the actual stabbing incident. Throughout that incident he was armed with a knife, but fortunately he did not use that knife. The degree of violence, as I have already mentioned, was considerable and there is absolutely no excuse for the offender AI not only keeping Mr Poa at bay by waving his knife, but also on two occasions running over to the area where the stabbings occurred and on occasion launching a kick.

The offender AI maintained in evidence that he only intended to have a fist fight one on one with Mr Ngatupuna. However, as soon as the incident flared up he became armed with a knife and he used this to ward off Mr Poa. Taking the offender AI's aggressive stance from the very beginning of the incident right through to the end and acknowledging that he did not stab anybody although he wielded a knife I have come to the conclusion that this matter falls below the middle of the range for offences of this type. However, it does not fall into the lowest range, because of the nature of the wounding and the violence involved.

1. The trial judge noted, as aggravating features of the offences, that they were committed while SB was on a bond and AI was on parole; and that they involved the actual and/or threatened use of a weapon.

1. The trial judge then considered the subjective case of SB:

The offender [SB] is now just twenty years of age, having been only eighteen at the time of the offence. The offender gave evidence both in the trial and before me on sentence. At all times he maintained that he did not anticipate getting into a physical fight and that he only became involved after his brother [JB] was attacked by Mr Ngatupuna. He said that he became involved to defend his brother. I have already found that he did not pick up the pendant from the ground, but I do accept that this all happened very quickly as stated. The jury verdict means that the offender wounded Jordan Ngatupuna with intent to do grievous bodily harm and I have found in that regard that the jury verdict means that he was using excessive self defence in defence of his brother [JB].

I have also had regard to the pre-sentence report and to evidence on sentence given by the offender's father [LB]. [LB] spoke about the family, including his wife and sons. All were present in court. He said that his son [SB] was not the kind to get into fights. This is borne out by his criminal record, which contains one set of offences in May 2008 involving non violent crimes for which he was still serving a bond at the time of this offence. It was also obvious that the offender [SB] was very short in stature and quite light in weight, being at the time of the offence approximately five feet tall and weighing fifty-five kilograms. His father spoke candidly about being concerned about the peer group that he was associating with and making changes to his schooling to try and avoid bad influences. He also spoke of the depression and big impact on the family that the involvement of his two sons [SB] and [JB] initially in this crime had caused and subsequent to [SB] being convicted.

The offender [SB] was born in Australia and is identified as coming from a Lebanese cultural heritage. According to the pre-sentence report he had an unremarkable and happy childhood. Until going into custody on this matter he was residing at home and he plans to return there when he is released from prison. He agreed with his father's evidence and the pre-sentence report, whereby he said he began associating with a group of negative peers at about age fourteen onwards. Despite this his criminal record remained clear until the one set of offences already mentioned in 2008. In this regard, having already taken into account as an aggravating feature that he was on a bond at the time of this offence, his record does, I find, entitle him to some leniency, because of the lack of violent antecedents.

Evidently he gained his school certificate at around age sixteen and commenced year 11, but lost interest and stopped going to school. The pre-sentence report notes just prior to coming to custody [SB] had enrolled and commenced participation in a financial planning course through an internet college. However, he has deferred this study due to his incarceration.

He gave the pre-sentence report writer a history of using drugs from age sixteen, including ecstasy, cocaine and benzodiazepine medication. However, he claimed that he was abstinent from any drug use for four months prior to his arrest for this offence and that drug use had nothing to do with the matter before the court. He also stated that he was not under the influence of alcohol at the time of the commission of the offence.

Whilst in custody there is no record of any failing of urine tests and he has been in custody for 531 days. This long period clearly lends support to the fact that he has continued, albeit partly due to his incarceration, to stay free of drugs and alcohol.

The offender has steadfastly refused to acknowledge that he used anything other than the pendant picked up from the ground in the spur of the moment to inflict the stab wounds on Mr Ngatupuna. I have found to the contrary. However, the pre-sentence report writer notes the offender made no attempt to excuse his behaviour and acknowledged that it was the wrong thing to do, although the report then goes on to state:

"Whilst the offender was able to verbalise that he feels bad for what he did to the victim it is considered that his comprehension of victim empathy is at this time only surface level."

The offender did repeat in evidence before me on sentence that he felt bad about what had happened and acknowledged that his behaviour was inexcusable. There is still an element of denial throughout the offender's evidence, but I do accept that he was genuinely concerned about the serious nature of the injuries he had inflicted on Mr Ngatupuna. On the issue of remorse I cannot be certain that he is fully and genuinely remorseful, however, he at least deserves some credit for facing up to the serious repercussions of his actions on that day.

The offender has been employed throughout most of his custodial sentence and has worked in areas such as the furniture unit, the laundry and as a cleaner in the living unit. He gave evidence that he had not been breached for any offences whilst in custody.

In mitigation I note that he has no history of similar matters and no violence on his record. I note that he was only aged eighteen at the time. This has been his first time in custody and he has been on remand without knowing his fate for a considerable period. Given his coming to terms with drug use and the long period already in prison I find that he has reasonable prospects of rehabilitation. If he is able to return home on his release and receive further support from his family and perhaps counselling to try and have him achieve an understanding of the really serious nature of the offence of this type that [sic] I find that he is unlikely to re-offend in this way.

The pre-sentence report notes that the offender [SB] presented as being somewhat immature and at times appeared to have considerable difficulty in being able to verbally express himself. However, he remained polite and cooperative throughout. As noted he was only eighteen at the time and it is a great pity, given his relatively stable upbringing, his lack of serious criminal antecedents, that he finds himself before the court at such a young age on such a serious charge. He has been assessed as being suitable for medium level intervention by the Probation and Parole Service in regard to treatment drug use [sic] and anger management counselling.

1. The trial judge reached the following conclusions in relation to SB:

Here I find that the offence involved in the offender [sic] was not really a planned organised criminal activity despite having found that both he and the offender AI were armed. The offender's whole behaviour leading up to the actual stabbing incident was more one of disinterest whilst using a phone than being part of an apparent planned and organised attack. In this regard my finding is bolstered by the fact that it seems to have been precipitated by the offender AI's actions and the two victims were really random passers-by. There was no evidence given that would allow the court to accept beyond reasonable doubt that the two offenders premeditated this attack.

I have also found that the offender does not have any significant record of previous convictions. In fact he has no violent convictions at all and although I have found as an aggravating factor that he was on bail at the time I have also found that his record does entitle him to leniency. In addition I have previously found that with further support and counselling the offender is likely [sic] to re-offend in this manner. Also that he has reasonable prospects of rehabilitation, given the fact that he has come to terms with his drug use and the long period that he has already spent in prison. I have previously found that he has exhibited some, though not great remorse and still needs to gain further insight into this particularly serious offence.

Given these findings and the fact that I have found that the objective gravity is below the middle of the range, but not appreciably so, I intend to set a non parole period that is shorter than the standard period of seven years for offences of this type. There has been no plea of guilty in this matter. However, I do find special circumstances due to the offender's young age at the time of the offence and the fact that he will be spending his first time in prison and I believe that both he and society will benefit from a longer than normal period on parole to ensure his continued rehabilitation.

1. The trial judge then considered the subjective case of AI:

I will now turn to the subjective features of the offender AI and then return to the actual sentences for both offenders at the end.

At the outset it should be noted that AI was a juvenile at the time of this offence.

He did not give evidence on sentence before the court, however, exhibit 1 contained a report of Dr Peter Champion, clinical psychologist, dated 2 June 2010, a letter from the Legal Aid Commission dated 19 April 2010 confirming completion of the Burn Crime Prevention Workshop, merit certificate awards from Putland Education and Training Unit, a certificate of achievement for successfully completing Offence Focus program on 19 March this year, a certificate of achievement for successfully completing Managing Anger program on 6 May last year as well as sentencing statistics. I have also had regard to a confidential background report from Juvenile Justice dated 27 May and exhibit 2 on sentence is a letter from STARTTS, the New South Wales service for the Treatment and Rehabilitation of Torture and Trauma Survivors.

The offender AI was born in Beirut, Lebanon and has no siblings. His parents separated when he was about four years of age and he remained with his father. When the offender was about twelve years of age his father remarried in Lebanon to [his second wife] , who is an Australian citizen, and together they came out to Australia when the offender was around fifteen years of age and have lived together at their current address in Arncliffe since.

Evidently the offender's time in Lebanon has impacted significantly on his behaviour, according to the Juvenile Justice Report and the report of Dr Peter Champion. The Juvenile Justice Report also confirmed this with the offender's aunt [...] and his father [...]. The offender experienced gunfire, explosions and helicopters firing from the air and was witness to the death of a man who was shot in front of him and other schoolchildren whilst he was on a school excursion.

On his arrival in Australia he attended the Kogarah Intensive English Centre from 30 April 2007 to 14 November 2007. He needed to do this in order for him to be able to gain access to school. His English has evidently improved significantly and even more so since he has been in custody. The offender has shown an interest in studying at TAFE and has expressed a desire to train as a plumber.

The offender confirmed that during his time in Australia he has begun to associate with peers who were not a good influence. He has candidly admitted to beginning drug and alcohol use from around fifteen years of age. He has used cannabis regularly and moved into ice and cocaine use at about aged sixteen. At the time of his offending he was using ice and/or cocaine approximately two days per week and acknowledges that this was strongly linked with his offender related activities. As pointed out, he was actually on parole for a violent offence for assault occasioning actual bodily harm when this offence was committed.

The offender has indicated a willingness to seek alcohol and drug counselling in the community, but has not considered entering into a residential drug and alcohol rehabilitation program. Evidently he has been challenging towards staff and other detainees with incidents in gaol, including intimidation and physical altercations being noted in the Juvenile Justice Report. The offender explains this by his feeling of injustice and about the need to survive in custody.

Although he did not give evidence before me on sentence he did express regret to both the Juvenile Justice Report writer and to the psychologist regarding his actions and the impact that this had on the victim. I am well aware that very considerable caution should be exercised in relying on offender's statements to psychologists and report writers when there is no evidence on sentence. In many cases only very limited weight can be given to such statements. Here, though, a careful examination of the evidence on sentence points to a psychologically damaged young man, who is still growing up and needs to fully understand the true meaning of remorse. Given his background and the difficult time he has had adjusting to a new life in Australia with such a background I am of the view that he is beginning to realise that he cannot act in this aggressive and violent fashion. In saying this I do note that at no stage during the whole altercation did this offender actually use a knife, but as mentioned earlier, he was the initiator of the whole incident and used it only to wield off Mr Poa.

Dr Champion also points to the effect that his poly drug use may have had in relation to this offence. Evidently he had been smoking ice a day or more before the offence, he then spoke of drinking up to half a bottle of spirits and inhaling three grams of cocaine, which he shared with four others, and smoking a cone of cannabis the night before the offence. He told Dr Champion that as a result he had been feeling hung over on the day of the offence, but had also been feeling other effects, such as feeling that his body was numb, such as having an angry head, feeling generally angry, whilst also feeling that he had power and was strong and feeling that nothing can take me down. He also spoke of having been paranoid and thinking that people might stab or shoot him. If this account is accurate, and I have no other account to go on, that he may well have been significantly substance affected at the pertinent time. That is the conclusion to which Dr Champion came.

Increasingly courts are noticing offences, especially involving violence where the drug ice, either alone or in combination with other illicit and/or legal substances such as alcohol, is involved. Much of the violence is totally inexplicable and quite often the offender has no explanation. In this case the offender AI from the outset with his actions has acted in an aggressive fashion. Although he locked eyes with Mr Ngatupuna, the primary victim, there was little reason for this to escalate in the way that it did. The offender has said that Mr Ngatupuna did not deserve to get stabbed and that he only expected a 'punch on'. Although he saw nothing wrong with this type of physical confrontation he did acknowledge that the stabbing was wrong. The tortured and illogical thinking behind these types of comments to both Juvenile Justice and Dr Champion, as well as his evidence during the trial, lead me to accept that he probably was affected by various substances, particularly ice, at the time of this offence. This does, of course, not excuse his conduct, but goes in some measure to explain how an incident so benign at first turned into such a serious one.

Since being in custody he has expressed a desire to move away from his previous circle of friends by redirecting his interests into fitness training, and joining a martial arts group. What he really needs to achieve on being released is a worthwhile occupation, continue with his English learning and hopefully be able to train for a useful trade, such as being a plumber. His family is still supportive and he will need all the help he can get. I agree with the summary of Dr Champion in which he states, inter alia:

"In sum, AI presents as a psychologically damaged young man. His traumatic experiences probably resulted in anxiety, mood disturbance and also impacted on his social functioning. There is a history given of poly-substance abuse of some severity which has impacted on his mental state, paranoia, and also his psychological functioning, anger management, impulse control. There is a need for psychotherapeutic input, mood/anxiety disorder which will need to continue when he is released as well as AOD, or alcohol and drug intervention."

This appears to encapsulate the various problems that this young offender faces, not only now but on release. He needs to address these, otherwise he is at considerable risk of reoffending. Dr Champion says:

"Those risk factors which can be seen to be present include a previous history of violence, young age at a time of the first violent incident, employment problems, substance use abuse problems, early mal-adjustment, prior supervision failure, impulsivity, potential exposure to destabilisers, potential exposure to stress."

Fortunately Dr Champion finds that the risk factor for which there is no compelling evidence, is psychopathy. However, he concludes:

"In some there are significant risk factors present, the question being whether AI would be willing, or able, to utilise those therapeutic and support services which would be available to him in the community to address these. If he can use the services, avoid substance use, avoid his old associates there is potential for change. If he cannot, then there is a risk of further offending. At this stage I would have to rate his progress as guarded."

I agree with this assessment and also with the case plan devised by Juvenile Justice. He will need to follow each of the matters set out therein and have the support of his family in order to achieve rehabilitation and overcome the risk of reoffending. Given his age, the fact that he is still maturing and has been in custody for a considerable period, I am, on balance, if these matters are attended to, convinced that he has reasonable prospects of rehabilitation and hopefully will be unlikely to reoffend in a violent fashion in the future.

In his case, whilst there was no plea of guilty entered I do note that he was found not guilty of the more serious charge, and guilty of the alternative count. Both Dr Champion and Juvenile Justice recommend that the offender try and undergo the STARTTS program. Given the offender's unfortunate early years in Lebanon and his consequent behaviour I can only recommend to authorities that he be allowed to commence this whilst in prison and if possible to continue it on release.

1. The trial judge reached the following conclusions in relation to AI:

It must be remembered that the offender was a young person at the time of this offence. The principle of giving special consideration to the youth of an offender has long been accepted. In R v C unreported 12/10/89, NSW CCA Chief Justice Gleeson accepted a submission that in sentencing young people the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed.

Although having decided to deal with this matter by way of law, special principles applicable to children under s 6 of the Children's Criminal Proceedings Act still have to be taken into account. However, the nature of the offence and the actual age of the offender at the time of the offence can both diminish the significance of these factors. Here the offence of which the offender has been found guilty was a violent offence, albeit where the stabbing was not actually perpetrated by this offender and also he was over seventeen years of age at the time. Nevertheless, rehabilitation remains an important issue for a young man of the age of this offender.

I also accept from the various documentary material before me that this offender has cognitive, emotional and psychological immaturity as a result of his very troubled background and use of illicit substances. Thus the Court needs to place some emphasis on rehabilitation rather than general deterrence and retribution as it is important that this young man eventually become a useful and worthwhile member of society.

Having said that, I still need to take into account the need for general and specific deterrence, given that this was a violent crime with serious repercussions for the victim. I have been provided with statistics by counsel for the offender and have had regard to them given their acknowledged limitations.

I have taken into account s 3A and s 5(1) of the Crimes (Sentencing Procedure) Act and having considered all possible alternatives I am satisfied no penalty other than imprisonment is appropriate in this case. Given the offender's age, his mental condition as described by Dr Champion and the other material, I am satisfied that special circumstances exist and that I should make an order directing any sentence to be served as a juvenile offender.

This is due to the offender being a juvenile at the time this offence was committed, the problems clearly set out in the Juvenile Justice report and the report of Dr Champion and the need for specialised care and counselling.

Accordingly, I will direct that the following sentence be served as a juvenile offender.

1. On the basis of those considerations, the trial judge passed the sentences set out in par [5] above.

The Crown's grounds of appeal

1. The original notices of appeal alleged merely that the sentences were manifestly inadequate. At the hearing of the appeal, the Crown sought leave to amend the notices of appeal to include the following grounds:

In relation to SB

Ground 1: His Honour erred in his findings regarding the objective seriousness of the offence.

Ground 2: His Honour erred in failing to impose a sentence that reflected the objective seriousness of the offence.

In relation to AI

Ground 1: His Honour erred in his findings regarding the objective gravity of the offence.

Ground 2: His Honour erred in failing to impose a sentence that reflected the objective gravity of the offence.

Submissions concerning SB

1. It was submitted for the Crown that the trial judge's finding that the objective seriousness of the offence was below the middle range for offences of this kind, but not appreciably so, was an error; and that the trial judge should have found that the objective seriousness of the offence was above mid range.

1. The Crown submitted that the trial judge wrongly negated the use of the knife as an aggravating factor by his finding that SB was using excessive force in defending JB.

1. The Crown pointed to the following relevant factors:

(1) SB was in company.

(2) The case involved violence on the streets of Sydney and was committed without regard to public safety.

(3) SB stabbed the victim in his left arm and the arm went limp.

(4) SB and JB forced the victim back across the footpath and up against the Perspex wall. Throughout this the victim was trapped.

(5) The life threatening wounds occasioned to Mr Ngatupuna occurred after he was stabbed in the left arm and whilst he had been forced to the ground by SB and JB.

(6) Considerable force was required to produce the wounds.

(7) The number, severity and location of the stab wounds to the victim lead to a life threatening situation.

(8) SB left the victim bleeding heavily and did nothing to render assistance: see Previtera (1997) 94 A Crim R 76 at [85].

(9) The victim has ongoing physical damage. (The permanent nerve damage to the top of the legs and some muscle damage around his chest).

(10) The victim has ongoing psychological damage. (Treatment for extreme post-traumatic stress disorder).

1. In relation to the factor number (2), and the circumstance that the victim was set upon when going about his ordinary business in a public thoroughfare, the Crown referred to a number of authorities including Vaelia v R [2010] NSWCCA 113 at [22] - [23].

1. In oral submissions, the Crown also submitted that the trial judge erred in finding that the stab wounds inflicted on the victim when he was on the ground were in defence of JB. The Crown submitted that, even if it were open to the trial judge to find that SB's initial use of the knife against the victim was in defence of JB, it was not open to find that the use of the knife after the victim was on the ground was in defence of JB.

1. The Crown submitted that the trial judge was required to impose the standard non-parole period of seven years unless he determined there were reasons for setting a non-parole period that was longer or shorter than the standard period, those reasons being limited to those referred to in s 21A of the Crimes (Sentencing Procedure) Act 1999. (I interpolate here that this is as stated in s 54B(3) of the Crimes (Sentencing Procedure) Act , but it is not really a significant limit: see R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [68] - [69].)

1. The Crown pointed to the following factors specified by the trial judge as reasons for setting a shorter non-parole period:

the offence was not really a planned organised criminal activity despite having found that both SB and AI were armed;

SB's whole behaviour leading up to the actual incident was more one of disinterest whilst using a phone than being part of an apparent planned and organised attack;

SB does not have any significant record of previous convictions and this entitles him to leniency;

he has reasonable prospects of rehabilitation;

special circumstances are found on the basis of his age and he will be spending his first time in prison.

1. The Crown submitted that if the Court finds the trial judge erred in determining the objective seriousness of the offence, then it would find that the sentence failed to reflect the true objective seriousness; and that even if the Court was not prepared to interfere with the trial judge's determination of objective seriousness, it would still find that the sentence did not reflect the objective seriousness of the offence and was manifestly inadequate.

1. The Crown pointed particularly to the circumstances that SB was in company, was carrying a knife, involved himself in an unprovoked attack on two strangers in a public place, caused life-threatening injuries and permanent physical and emotional damage to the victim, and left the victim gravely wounded in the street.

Decision on SB

1. The approach to be taken in an assessment of objective seriousness for the purposes of application of the standard non-parole provisions was discussed in Way at [85] - [86] as follows:

[85] The multiplicity of purposes of sentencing set out in s 3A of the Act, quoted above, do not suggest a narrow perspective as to the range of facts and matters that are to be regarded as "objective" facts and matters which may affect the judgment involved in assessing "seriousness". It is too narrow a perspective to confine attention to the physical acts of the offender and their effects, as those acts or effects could be observed by a bystander. The inquiry which we consider to have been intended is one that would take into account the actus reus, the consequences of the conduct, and those factors that might properly have been said to have impinged on the mens rea of the offender (see for example Fox and Freiberg, Sentencing , 2nd Edition at paras 3.506 to 3.510).

[86] Some of the relevant circumstances which can be said "objectively" to affect the "seriousness" of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender's capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v the Queen (1978) 20 ALR 1 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment. Other matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse, are more accurately described as circumstances of the offender and not the offence.

1. The approach of the Court of Criminal Appeal to a trial judge's finding as to objective seriousness has been stated as follows in Mulato v R [2006] NSWCCA 282 at [37] by Spigelman CJ and at [46] by Simpson J:

[37] Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised.

[46] The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55 CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance.

1. The first question is whether the trial judge erred in finding that SB was acting in excessive self-defence of JB. The Crown contention was that, even if this were so in the case of the initial stabbing, it was not so in the case of the later stabbing after the victim fell to the ground.

1. The primary judge did find that SB and JB together forced the victim across the footpath against the Perspex wall and forced the victim to the ground. However, JB's evidence was that the victim was still holding him when on the ground, and it seems that there was then a struggle involving at least the victim and JB. The CCTV tape seems to confirm this. The jury verdict was consistent with excessive defence of JB applying to the whole of the incident; and in my opinion, a contrary finding in the sentencing procedure would require finding beyond reasonable doubt that the stabbing of the victim on the ground was not motivated by a wish to defend JB. The trial judge did not make that finding.

1. It can be said that, with the aid of the CCTV material and the facts that were not in dispute, this Court is in a position to say that the trial judge was in error in not making that finding, and that this Court is in a position to make that finding itself. However, the trial judge did have the advantage of seeing the participants give evidence, the whole incident was over very quickly, and there was a struggle on the ground; and I am not satisfied that the trial judge erred in not making a finding beyond reasonable doubt that the later stabbing was not in defence of JB, or in treating the whole episode as excessive defence of JB.

1. Notwithstanding that view, there is considerable force in the Crown's submissions that SB was involved in provoking a fight in a public street while armed with a knife, used that knife to cause life-threatening injuries (and permanent damage) to the victim, and left the victim in the street with those life-threatening injuries; and that this means that the objective seriousness of the offence must be above mid range.

1. However, no error is disclosed in the reasoning of the trial judge, so the question must be whether the trial judge's conclusion as to objective seriousness is such as to justify appellate intervention, notwithstanding what was said in Mulato . The matters relied on by the trial judge were that SB had shown little interest in the matter on the lead up to the incident, that although the victim had been seriously provoked he did physically attack JB, that the victim was a much larger man than either SB or JB, and that what SB did was done in order to defend JB (albeit that it was grossly excessive). These were relevant matters; and having regard to them, I am not satisfied that the trial judge's conclusion as to objective seriousness was so clearly wrong as to justify appellate intervention.

1. The question then is, given this assessment of objective seriousness, was the sentence manifestly inadequate.

1. Again, there is considerable force in the Crown's submissions. The circumstances concerning SB (as distinct from the circumstances of the offence itself) include the aggravating factor that the offence was committed when SB was on a bond, as well as the mitigating factors found by the trial judge, namely that he had no significant record of prior convictions, that there were reasonable prospects of rehabilitation, and his young age and the fact that this would be his first time in custody. However, as noted by the trial judge, the prospects of rehabilitation were perhaps affected by SB's continued untrue denial that he had carried a knife to the scene.

1. Principles concerning the relevance of the youth of an offender to sentencing have been stated as follows by McClellan CJ at Common Law in KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22] - [26]:

[22] The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30].

[23] The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. ( R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence ( Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. ( Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).

[24] 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) 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."

[25] 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) 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.

[26] 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]).

1. I accept those principles, but I also adhere to additional comments that I made in BP v R [2010] NSWCCA 159 at [4] - [6]:

[4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33]-[36].

[5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a "child offender" of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.

[6] Third, I do not think courts should be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors.

1. However, I do accept that, in relation to crimes of violence committed in the streets by groups of young persons, considerations of general deterrence should be given substantial weight, notwithstanding the youth of the offenders: cf R v DGP [2009] NSWSC 1154 at [101] - [102].

1. Taking all these matters into account, in my opinion the sentence on SB, although a not insubstantial sentence, was a lenient one. However, particularly having regard to the assessment of objective seriousness (which is not set aside), to the youth of SB and to the circumstance that this was a case of excessive defence of his brother, I think the sentence was at the bottom of the range available to the trial judge, rather than being outside that range.

1. For those reasons, I would dismiss the Crown appeal in relation to SB.

Submissions concerning AI

1. The Crown pointed out that the standard non-parole period of four years for the offence of which AI was convicted did not apply, because AI was a minor at the time of the offence. Nevertheless, the Crown submitted it was not inappropriate for the trial judge to assess the objective gravity of the offence: Curtis v R [2007] NSWCCA 11 at [48].

1. However, the Crown submitted that the trial judge's finding as to the objective gravity of AI's offence, that it fell below the middle range for offences of this type but did not fall into the lowest range, was erroneous. The Crown submitted that AI was the instigator of the incident, committed the first actual attack, carried and wielded a knife, realised that the victim could be wounded by SB and nevertheless went ahead, and on two occasions ran to the area where the stabbing occurred and on one occasion kicked the victim. The Crown submitted that the trial judge did not take into account that AI left the victim bleeding on the footpath, and did not attempt to assist him or seek medical assistance for him.

1. The Crown submitted that AI's unfortunate background in Lebanon and his youth were relevant to sentencing; but the Crown also noted that at the time of the offence AI was on parole for a matter of violence, namely assault occasioning actual bodily harm. The Crown also referred to the relevance of deterrence in relation to crimes of violence committed on the streets by young offenders, referring to KT and DGP .

1. Accordingly, the Crown submitted that the sentence was manifestly inadequate.

1. Mr McLachlan for AI submitted that the case was one of a joint criminal enterprise merely to assault, which got out of hand; and that it was clearly open to the trial judge to characterise the offence as he did. Mr McLachlan submitted that the sentence was not manifestly inadequate.

1. Mr McLachlan also submitted that the Court ought, in the exercise of its discretion, refuse to intervene, relying on AI's affidavit sworn 18 February 2011, which was read on the question of discretion and on re-sentencing, if that question arises.

1. Mr McLachlan relied on the following considerations:

a. Late particularisation of the appeal grounds: DPP (NSW) v Lombard [2008] NSWCCA 110;

b. The fact that the second respondent was released on parole on 25 September 2010 (i.e. more than 5 months ago) and has complied with his parole conditions since;

c. The fact that further time in custody for the second respondent may need to be served in an adult jail;

d. Fresh evidence as to the second respondent's current living, rehabilitation and vocational situation;

e. Fresh evidence as to the detrimental effect any further incarceration may have on the second respondent's rehabilitation and vocational situation (including commencement of a new labouring job); and

f. Fresh evidence as to the second respondent's stress and anxiety relating to the prospect of any further period of incarceration, particularly in an adult jail.

Decision on AI

1. It is true that the trial judge did not refer to the circumstances of AI leaving the victim, at the time of discussing the objective gravity of AI's offence; but this was referred to elsewhere in his remarks on sentence (in relation to the victim impact statement, which the trial judge did have regard to). I would not infer that the trial judge disregarded this when assessing the objective gravity of AI's offence.

1. It was relevant to the objective gravity of AI's offence that it was not a planned and organised criminal activity, that AI did not stab the victim, that AI did not intend that the victim be wounded or caused grievous bodily harm, and that AI was not reckless as to the causing of grievous bodily harm (as distinct from wounding). Of course, if AI had intended that the victim be caused grievous bodily harm, or had been reckless as to the causing of grievous bodily harm, that would have made him guilty of a more serious offence; but the fact that the victim did actually suffer life-threatening injuries and permanent damage is in my opinion relevant to the objective gravity of AI's offence.

1. On the assumption that AI's youth is not taken into account in assessing the objective gravity of the offence, I think an assessment of objective gravity at below the middle range is not a reasonable assessment. Unlike SB, AI's involvement in the incident was wholly aggressive. He instigated the confrontation with strangers in the street, and (having a knife and being prepared to wield it) committed the first actual attack. Although appreciating that the victim could be wounded, he participated in a physical attack on the victim to the extent of kicking him while he was on the ground; and having seen blood on the victim's back, left him grievously injured in the street. As mentioned earlier, the objective extent of the victim's injuries is also relevant. Notwithstanding what was said in Mulato , I would regard the trial judge's assessment of objective gravity as erroneous.

1. I accept that AI's unfortunate background in Lebanon and his youth were significant subjective factors, as was the trial judge's assessment that AI has reasonable prospects of rehabilitation. However, so also was the circumstance that this serious offence of violence was committed when AI was on parole for another offence of violence; and taking all these things into account, I am of the view that the sentence was manifestly inadequate. Specifically, in my opinion, a non-parole period of two years and a further term of two years would have been at the very bottom of the available range.

1. However, AI was released from custody on 25 September 2010, and has been on parole since then. Having regard to this, and to the matters relied on by Mr McLachlan, I would in the exercise of discretion not intervene in this particular case.

Orders

1. For those reasons, in each of these appeals (that is, the appeal of AI against conviction, and the Crown appeals against the sentences imposed on SB and AI), I propose that the appeal be dismissed.

1. ADAMS J: I agree with Hodgson JA.

1. HALL J: I agree with Hodgson JA.

**********

Decision last updated: 27 April 2011