AJ v The King

[2023] NSWCCA 235

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

AJ v R [2023] NSWCCA 235

Hearing dates:

18 September 2023

Date of orders:

6 October 2023

Decision date:

06 October 2023

Before:

Simpson AJA at [1]
Price J at [2]
Davies J at [3]

Decision:

(1) Grant leave to appeal.

(2) Uphold the appeal.

(3) Quash the sentence imposed in the District Court on 13 March 2023.

(4) In lieu, sentence the applicant to a non-parole period of 12 months commencing 26 December 2022 and expiring 25 December 2023 with a balance of term of 2 years and 3 months expiring 25 March 2026.

(5) The applicant is first eligible for parole on 26 December 2023.

Catchwords:

CRIME – appeals – appeal against sentence – sentencing of children – 15-year-old commits serious offence of aggravated robbery causing grievous bodily harm – whether sentencing judge erred in failing to have regard to youth in assessing moral culpability and weight afforded to general deterrence – errors established – where same sentencing judge sentenced co-offender – where same errors were established and co-offender re-sentenced on appeal – whether re-sentence imposed upon co-offender gives rise to a justifiable sense of grievance – issue of parity warrants re-sentence – appeal upheld – re-sentence

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW) ss 3, 6, 12

Crimes Act 1900 (NSW) ss 96, 97, 99

Cases Cited:

BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379

Blanch v R [2019] NSWCCA 304

JA v R [2021] NSWCCA 10

KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571

Paul Campbell v R [2018] NSWCCA 87

R v Suliasi Taumalolo; R v Mateaki Taumalolo; R v Mayol; R v ST; R v ET [2022] NSWSC 1696

TM v R [2023] NSWCCA 185

Taylor v R [2018] NSWCCA 255

Texts Cited:

Nil

Category:

Principal judgment

Parties:

AJ (Applicant)
The King (Respondent)

Representation:

Counsel:
S Howell & B Kennedy (Applicant)
E Wilkins SC (Respondent)

Solicitors:
AA Criminal Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)7

File Number(s):

2022/15842

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

13 March 2023

Before:

Colefax SC DCJ

File Number(s):

2022/15842

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, AJ, pleaded guilty in the Children’s Court to an offence of aggravated robbery causing grievous bodily harm contrary to s 29 of the Crimes Act 1900 (NSW). Two further offences of robbery in company and demand property with menaces in company were taken into account on sentence. The applicant was 15 years and five months old at the time of the offending. He was sentenced to imprisonment for 3 years and 3 months with a non-parole period of 1 year and 6 months.

The offending arose out of an incident at the Westfield Shopping Centre, Liverpool on 16 December 2021. The applicant, together with five co-offenders, surrounded three young men as they left Event Cinemas at about 9:50pm. Two of the offenders cornered one member of the group, Mr Campton, and punched him in the head with a closed fist. Shortly after, the remaining offenders, including the applicant, joined the assault. Mr Campton was punched several times and he fell to the floor.

The Agreed Facts recorded that whilst Mr Campton was lying on the ground, the applicant kicked his head and body. The sentencing judge noted that he had viewed the CCTV footage and what he saw was not so much the applicant kicking Mr Campton’s head as stomping on it. Mr Campton was rendered unconscious and sustained serious injuries.

The sentencing judge sentenced several other young persons involved in the same incident. One co-offender, TM, was sentenced to 3 years’ imprisonment with a non-parole period of 1 year. TM successfully appealed against his sentence raising, in substance, the same grounds as the present applicant in grounds 1 and 2 below: see TM v R [2023] NSWCCA 185. The outcome from that appeal, and the re-sentence of TM, formed the basis of the applicant’s third ground of appeal.

Specifically, the applicant sought leave to appeal against his sentence on the following grounds:

Ground 1:   The sentencing judge erred in failing to assess the applicant’s moral culpability or failed to make clear in the remarks on sentence that he had done so;

Ground 2:   The sentencing judge erred in failing to assess whether the applicant’s young age meant that less weight would be given to general deterrence; or failed to make clear in the remarks on sentence what finding was made on this issue; and

Ground 3:   There is a marked difference between the applicant’s sentence, compared to the sentence imposed by the Court on one of his co-offenders, TM, such as to engender a justifiable sense of grievance.

The Court held (per Davies J, Simpson AJA and Price J agreeing), granting leave to appeal, upholding the appeal, and re-sentencing the applicant:

As to Grounds 1 and 2

1. Apart from reference to the applicant’s age and s 6 of the Children (Criminal Proceedings) Act 1987 (NSW), it was not clear whether, and to what extent, the applicant’s youth was considered in assessing moral culpability or the weight to be given to general deterrence. Indeed, the remarks on sentence made no reference to the applicant’s moral culpability nor to the issue of general deterrence. His Honour failed to comply with his obligations in sentencing young offenders: [1] (Simpson AJA), [2] (Price J), [37]–[43] (Davies J).

TM v R [2023] NSWCCA 185, considered.

KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571; BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379; JA v R [2021] NSWCCA 10, cited.

As to Ground 3 and re-sentence

1. Although the significance of general deterrence should be mitigated because of the applicant’s young age and his reduced moral culpability from the immaturity identified by the psychologist, general deterrence has some role to play in relation to young men and adolescents who engage in unprovoked violence against innocent persons: [1] (Simpson AJA), [2] (Price J), [48] (Davies J).

R v Suliasi Taumalolo; R v Mateaki Taumalolo; R v Mayol; R v ST; R v ET [2022] NSWSC 1696, cited.

1. Taking into account the re-sentence imposed upon the co-offender, the distinction between their offending and backgrounds, specifically the co-offender’s difficult childhood, the applicant’s non-parole period was to be reduced from 18 months to 12 months. The seriousness of the offending did not warrant a reduction on the head sentence: [1] (Simpson AJA), [2] (Price J), [50]–[55] (Davies J).

TM v R [2023] NSWCCA 185, considered.

Judgment

1. SIMPSON AJA:   I agree with Davies J.

2. PRICE J:   I agree with Davies J.   

3. DAVIES J:   The applicant, a young person, pleaded guilty in the Children’s Court to three offences arising out of an incident at the Westfield Shopping Centre, Liverpool on the evening of 16 December 2021. Those offences were:

Sequence 1: Aggravated robbery causing grievous bodily harm contrary to s 96 of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 25 years’ imprisonment.

Sequence 2: Robbery in company contrary to s 97(1) of the Crimes Act. The maximum penalty for this offence is 20 years’ imprisonment.

Sequence 3: Demand property with menaces in company contrary to s 99(2) of the Crimes Act. The maximum penalty for this offence is 14 years’ imprisonment.

4. Sequence 1 was a serious children’s indictable offence as defined in s 3 of the Children (Criminal Proceedings) Act 1987 (NSW). Accordingly, the matters were committed for sentence to the District Court. In the District Court sequences 2 and 3 were taken into account on a Form 1 in relation to sequence 1.

5. On 13 March 2023 the applicant was sentenced by Judge Colefax SC to imprisonment for three years and three months commencing 26 December 2022 and expiring 25 March 2026 with a non-parole period of one year and six months expiring 25 June 2024.

6. The sentence was imposed after taking into account a discount for the applicant’s early plea of 25%.

7. The applicant now seeks leave to appeal against his sentence on the following grounds:

1.   The sentencing judge erred in failing to assess the applicant’s moral culpability or failed to make clear in the remarks on sentence that he had done so.

2.   The sentencing judge erred in failing to assess whether the applicant’s young age meant that less weight would be given to general deterrence; or failed to make clear in the remarks on sentence what finding was made on this issue.

3.   There is a marked difference between the applicant’s sentence, compared to the sentence imposed by this Court on one of his co-offenders, TM, such as to engender a justifiable sense of grievance.

8. Judge Colefax SC sentenced a number of other young persons who were involved in the same incident. On 24 March 2023 he sentenced the young person TM to imprisonment for three years with a non-parole period of one year, taking into account a discount of 25% for the applicant’s early plea. TM appealed against his sentence raising, in substance, the same grounds as the present applicant raises in grounds 1 and 2 of the notice of appeal.

9. On 26 July 2023 this Court quashed the sentence imposed by Judge Colefax  and, in lieu, maintained the head sentence of imprisonment for three years but reduced the non-parole period to a period of nine months: TM v R [2023] NSWCCA 185. It is the outcome from that decision which forms the basis of ground 3 in the present appeal.

The offending

10. Three young men, Jordan Campton, Brayden Taylor and Brock Ruwoldt were walking from the Event Cinemas at Westfield in Liverpool at about 9:50pm on 16 December 2021. The applicant, together with five co-offenders ST, AT, LA, TM and JM, followed the three young men. A number of the offenders surrounded the three young men, saying words to the effect of, “nice stuff you're wearing” and “give us your stuff”. The three young men attempted to walk away, but they were surrounded. TM took a hat from Mr Taylor’s head and walked away with it.

11. Shortly afterwards, the applicant grabbed Mr Campton's left pocket and removed an unknown item from it, which he placed in his jumper pocket. Two of the other offenders started to unzip Mr Campton's blue jacket and remove it from his body. At that time the applicant grabbed Mr Ruwoldt's jumper from behind. He and another offender followed Mr Ruwoldt towards the George Street exit of the shopping complex.

12. Two of the offenders and an unknown male cornered Mr Campton. They removed his jacket and one of them pushed him, causing him to fall into the shop wall. AT then punched Mr Campton in the head with a closed fist.

13. The remainder of the offenders including the applicant and five unknown males, ran back to join the assault. Mr Campton was punched by a number of the offenders several times and he fell to the floor. The Agreed Facts then recorded that, whilst Mr Campton was lying on the ground, the unknown males stomped on his head, and the applicant kicked his head and body. TM also kicked Mr Campton to his body as he lay on the ground. At some point during the assault Mr Campton was rendered unconscious.

14. The police were called and Mr Campton was transported to Liverpool Hospital. He sustained a bruise to the back of the nose and a laceration approximately three centimetres in size, fractures to the rear of the skull, subdural hematoma along the flax measuring one millimetre and generalised cerebral oedema, a fractured eye socket and a fractured cheekbone.

15. The sentencing judge noted that although the Agreed Facts stated that the applicant kicked Mr Campton to the head, the applicant said that that was not so and it became a contested fact. The applicant maintained that his foot accidently came into contact with a part of Mr Campton’s body as the applicant was seeking to step over him. The sentencing judge noted that he had viewed the video tape a number of times and what he saw clearly was not so much the applicant kicking Mr Campton’s head as stomping on it. His Honour noted also that in text messages sent to the applicant’s friends afterwards the applicant boasted about doing precisely that.

16. The sentencing judge determined that the offences engaged in by both the applicant and TM were within the mid-range.

Subjective matters

17. The applicant was born in July 2006 and was aged 15 years and five months at the time of the offending. He was the eldest of three sons born to his Nepalese parents. They came to Australia in 1997 and 1998. His mother advised the Youth Justice caseworkers who prepared a report for the sentencing judge, that they were a normal, loving and caring family, with deep religious faith, and the support of their church community.

18. An issue was identified in the Youth Justice Report about the level and extent of parental discipline towards the applicant and his siblings although that was not a matter the applicant identified when he spoke to the psychologist. Nevertheless, it is clear from both the Youth Justice Report and the report from the psychologist that the applicant came from a stable family background.

19. The applicant suffered from some bullying in Years 7 and 8 at school with the result that he moved to a different school for Year 9. By the time he turned 15 in the year of the offending, he had started to rebel as a result of his parents’ focus on his academic performance. He met a girl who introduced him to his co-offenders. He appeared to have taken on their antisocial attitudes and beliefs. Two years earlier he had been the victim of a violent assault and robbery which caused him to be afraid of going out alone.

20. The psychologist concluded from the account of the incident given by the applicant that his thought processes reflected his level of immaturity both at the time of the offences and at the time of the interview. The psychologist said that immaturity affected several areas of cognitive functioning, such as impulsivity, reasoning and consequential thinking. The applicant told the psychologist that he was trying to “fit in” and be accepted by the people with whom he was mixing.

21. Dr Thomas Dornan, the psychologist who examined the applicant, concluded:

48.   [AJ] presents with a degree of immaturity, which appears to be a contributing factor in his offending. During the assessment, he demonstrated a lack of criminal sophistication as well as a lack of premeditation for the offence. Whilst [AJ] was unable to provide motivation for the offences, this is consistent with his age, in which adolescents, such as in [AJ’s] case, may not have the understanding or accounting for their own behaviour … . This period generally occurs between the age of 13 and 17, and it is normal that juveniles demonstrate reasoning, emotional and social competencies more like children than like adults.

49.   In addition, I also note that the capacity of [AJ] at the age of 15, to make mature decisions may have been impaired, considering the context and the presence of peers and peer pressure, which appeared to have caused significant decrements in mature decision making in young people aged under 16, compared to those aged older than 16. Research suggests that the developing brain of the typical adolescent is more subject to fluctuations in decision-making performance, as result of the relative neurological immaturity of the brain. Whilst this does not necessarily mean that a young person cannot be responsible for their behaviour, the aggregate of research indicates that foreseeability of consequences, capacity to modify emotion such that cost-reward calculations can be accurately made, and capacity to monitor and modify behaviour are all more childlike than adult like. I believe this was the case for [AJ].

22. The applicant had no prior criminal record.

Grounds of appeal

1. The sentencing judge erred in failing to assess the applicant’s moral culpability or failed to make clear in the remarks on sentence that he had done so.

1. The sentencing judge erred in failing to assess whether the applicant’s young age meant that less weight would be given to general deterrence; or failed to make clear in the remarks on sentence what finding was made on this issue.

23. It is convenient to deal with these grounds together, as the parties did.

Remarks on sentence (ROS)

24. In his ROS, Judge Colefax SC said this:

At the time you committed the principal offence and the two matters on the Form 1, you were about 15 and a half years of age.

Normally, a 15 year old person is sentenced very differently from an adult; and normally a 15 year old would be sentenced in the way that the Children (Criminal Proceedings) Act 1987 says a Court should sentence a young person. But the offence of aggravated robbery causing grievous bodily harm is what the law describes as a serious child's indictable offence, which means that you have to be sentenced not quite as an adult but more as an adult than a child.

Nevertheless, the provisions of the Children (Criminal Proceedings) Act, especially section 6, still apply and I have taken into account the very detailed submissions that your barrister helpfully gave me on Friday in a document and which has been supplemented by the document given to me by the Crown.

And I have specifically had particular regard to what your barrister has written about section 6 - as I have regard to that section in sentencing all of the other co-offenders to date.

25. His Honour made no reference to the applicant’s moral culpability nor to the issue of general deterrence.

26. The written submissions on behalf of the applicant before the sentencing judge said that the court should find that the applicant’s youth and immaturity lessened his moral culpability. The submissions also included a lengthy extract from what was said in Paul Campbell v R [2018] NSWCCA 87, where the importance of rehabilitation over deterrence was emphasised.

Submissions

27. In this Court, the applicant submitted that it was necessary for the sentencing judge to assess whether the emphasis to be given to general deterrence would be moderated because of the applicant’s age. The applicant submitted that nothing was said in the ROS about either matter, apart from his Honour’s preliminary comments (set out at [24] above). In that way, it was submitted error was established because relevant considerations were not accounted for. The applicant submitted that he was entitled to know from the ROS whether his moral culpability was reduced because of his young age, and the effect these matters had on the judge’s assessment of the appropriate sentence.

28. The applicant submitted that failure to provide adequate reasons on these important matters is an error in the process. Reference was made to what was said in Blanch v R [2019] NSWCCA 304 at [63]-[64].

29. The Crown submitted that, in circumstances where the applicant’s written submissions comprehensively referred to both the law and to the effect of youthful immaturity on the moral culpability of the applicant, what the sentencing judge said in his ROS relate to that issue. The Crown submitted that the further explanation for the way the sentencing judge expressed his remarks derives from s 12(1) of the Children (Criminal Proceedings) Act 1987 (NSW) (“CCPA”) which requires the judge to ensure that the young person understands the proceedings.

30. The Crown submitted that the sentencing judge specifically said that he had taken into account the very detailed submissions of the applicant’s counsel, and specifically had regard to s 6 of the CCPA. The Crown submitted that, in contrast, the extempore remarks of the sentencing judge in TM’s matter were insufficient to amount to a consideration of TM’s moral culpability on account of his youth. Further, in the remarks in TM’s case, the sentencing judge referred to his moral culpability as being high, and that the sentence had to be an example to others. In those ways, the reasons of the sentencing judge differed as between the applicant’s case and TM’s case.

27. The Crown drew attention to what was said in Taylor v R [2018] NSWCCA 255 concerning the obligations of a sentencing judge in giving reasons. The Crown submitted that the sentencing judge’s succinct exposition of the relevant facts and law, explained in language that would be understood by a juvenile offender, was adequate in the circumstances.

Determination

32. When Judge Colefax SC sentenced TM he said:

You were 15 at the time you committed the principal offence and the matter on the Form 1.

As I have said on other occasions in connection with what happened on this night, normally, a 15-year-old is sentenced very differently from an adult, and normally, a 15-year-old would be sentenced in the way the Children (Criminal Proceedings) Act says a Court should sentence a young person.

But, because the offence of aggravated robbery causing grievous bodily harm is a serious child’s indictable offence, you will be sentenced not quite as an adult but more as an adult than a child. Nevertheless, the provisions of s 6 of the Children (Criminal Proceedings) Act still apply, and I have taken s 6 into account. It has been addressed at length and helpfully by both the Crown in the Crown’s submissions and your own counsel, and I have not lost …

33. A little later in his remarks his Honour told TM that his moral culpability was also high, but that his difficult childhood had reduced his moral culpability to an extent. His Honour also said:

The sentence that you have to receive needs to properly reflect the seriousness of what you did. It has to take into account the fact that you have had difficulties in growing up. It has to address your prospects of rehabilitation. It has to be an example to others. It has to encourage you not to offend again.

34. It may be observed, therefore, that the sentencing judge dealt in two ways with TM’s moral culpability, with his prospects of rehabilitation and with general deterrence, although not by using those words.

35. TM sought leave to appeal to this Court on the following two grounds:

1.   The sentencing judge erred by:

(a)   failing to have regard to the applicant’s young age when assessing his moral culpability; and/or

(b)   failing to explain in the reasons for sentence what impact the applicant’s young age had on an assessment of his moral culpability.

2.   The sentencing judge erred by:

(a)   failing to have regard to the applicant’s young age when considering the emphasis to be given to general deterrence; and/or

(b)   failing to explain in the reasons for sentence what impact the applicant’s young age had on general deterrence.

36. In respect of those grounds, Yehia J (with whom Payne and Stern JJA agreed) said at [36]:

Although separate grounds of appeal, there is a degree of overlap in that the essential complaint is that the sentencing judge failed to have regard to the applicant’s young age. He failed to do so in two ways, firstly when assessing the applicant’s moral culpability, and, secondly, in assessing the weight to be afforded to general deterrence. Although they will be dealt with separately, the legal principles relating to young offenders apply with respect to each ground.

37. In upholding ground 1(a), Yehia J first cited passages from KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22]-[26]; BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [4]-[5] and JA v R [2021] NSWCCA 10 at [56] in relation to sentencing young offenders particularly in relation to retribution, rehabilitation and general deterrence. Her Honour then went on to say:

[54]   Although full allowance should be made for the higher volume of work faced by sentencing judges who are called upon to produce ex tempore judgments during busy lists, an important, if not a central feature of the sentencing proceedings here was the young age of the applicant. The authorities cited above highlight the important principles that apply to sentencing young offenders and the reasons underpinning those principles. An assessment of how youth impacts upon the moral blameworthiness of a young offender is an essential feature of the sentencing exercise.

…

[56] Other than referring to the applicant’s age and s 6 of the CCPA, the remarks on sentence do not reveal whether, and to what extent, the applicant’s young age was taken into account in the assessment of moral culpability.

…

[62]   Following the summary of the facts, the sentencing judge made a finding that the applicant’s moral culpability was high. In making that assessment, his Honour did not have regard to whether, and to what extent, the applicant’s immaturity, poor self-regulation, and reduced capacity for consequential thinking, as a result of his young age, may have impacted upon his moral blameworthiness.

[63]   The contents of the Confidential Background Report referred to the applicant’s difficulty controlling his emotions. He was assessed as having limited decision-making skills, a lack of consequential thinking, poor impulse control, and poor emotional regulation, all of which contributed to his offending behaviour. All of these factors were relevant to an assessment of the applicant’s moral culpability. None were taken into account by the sentencing judge in assessing the applicant’s moral blameworthiness.

38. In relation to ground 2(a), Yehia J quoted what the sentencing judge had said about the sentence being an example to others and went on to say:

[75]   The reference to general deterrence is encapsulated in his Honour’s remark that the sentence “has to be an example to others”. Accepting the need to articulate the remarks on sentence in such a way as to be understood by a 16-year-old, it was still necessary for the sentencing judge to articulate how, if at all, general deterrence was moderated. No regard was had to the way in which the applicant’s young age may have operated to reduce the weight afforded to general deterrence and the importance of rehabilitation.

…

[80]   I am satisfied that the sentencing judge failed to have regard to the applicant’s young age when considering the emphasis to be given to general deterrence.

39. It may be accepted that the sentencing judge, both in the present matter and in relation to TM, was endeavouring to articulate reasons in a manner that would be readily understood by the young offenders being sentenced, and that was in accordance with s 12(1) of the CCPA.

40. However, although his Honour went further in his remarks in relation to TM by expressly referring to TM’s moral culpability and the issue of general deterrence (neither matter was mentioned in the ROS in the present matter), this Court in TM considered that his Honour’s obligations went further. It follows, therefore, for the reasons given by Yehia J (above) that the reference only to submissions made by counsel in relation to the CCPA, coupled with no reference to the applicant’s moral culpability and the issue of general deterrence, was not in compliance with those obligations.

41. The sentencing judge had evidence before him from the Youth Justice Report which suggested that the excessive home discipline experienced by the applicant had possibly resulted in normalising physical harm in some circumstances. His Honour rejected that any such discipline had anything to do with the offending, although his Honour did not say why.

42. The sentencing judge also had a report from the psychologist which concluded that the thought process about the applicant’s involvement in the offence reflected his level of immaturity both at the time of the offences as well as at the present time, and that that immaturity generally affected several areas of cognitive functioning, such as impulsivity, reasoning, and consequential thinking. The psychologist also noted that the applicant told him that, in getting involved in the offending, he was trying to “fit in” and “be accepted by his peers”. Although the sentencing judge referred to the report from the psychologist, his Honour made no reference to what the psychologist said in that regard.

43. All of that evidence was directly connected with his level of immaturity which was a required consideration under s 6(b) of the CCPA. As in TM, apart from the reference to the applicant’s age in s 6 of the CCPA, the ROS do not reveal whether, and to what extent, the applicant’s young age was taken into account in the assessment of his moral culpability, particularly because the concept of moral culpability was not referred to by his Honour at all. In the same way, where no reference was made to general deterrence, it cannot be understood to what extent his Honour considered that general deterrence had any weight in the sentence imposed or whether, and to what extent, it was offset by a reduction in the applicant’s moral culpability and the importance of rehabilitation given his age.

44. I would uphold these grounds of appeal.

45. It is then necessary for this Court to re-sentence the applicant. That makes it unnecessary to consider ground 3 separately. Issues of parity will be dealt with in the course of re-sentencing the applicant.

Re-sentence

46. The sentencing judge assessed the objective seriousness of the principal offence as a mid-range offence. I agree with that assessment, particularly having watched the video of the assault on Mr Campton and the others. I agree also that the matters on the Form 1 should not result in any meaningful increase in the sentence for the principal offence. I agree that a discount of 25% should be given for the applicant’s early plea.

47. Based on reports from Cobham Youth Justice Centre, the applicant’s prospects of rehabilitation are very good. He has demonstrated insight into his offending behaviour, and was focused on obtaining his Higher School Certificate, and then undertaking a TAFE course. He has worked well towards sitting for his HSC as reports from Macarthur Adventist College make clear. I consider that there should be a significant finding of special circumstances to assist in the rehabilitation process which has already successfully commenced.

48. I agree from all of the material that the applicant is remorseful, and I consider that the applicant is at low risk of reoffending.

49. Although the significance of general deterrence should be mitigated because of the applicant’s age and his reduced moral culpability from the immaturity clearly identified by the psychologist, general deterrence has some role to play in relation to young men and adolescents who engage in unprovoked violence against innocent persons: R v Suliasi Taumalolo; R v Mateaki Taumalolo; R v Mayol; R v ST; R v ET [2022] NSWSC 1696 at [56], [82] and [109].

50. In my opinion, but for the issue of parity which has resulted from this Court’s decision in TM, I would have considered that no other sentence less severe was warranted in law and should have been passed. However, the applicant must be resentenced in the light of this Court’s decision in TM.

51. Judge Colefax SC sentenced TM to imprisonment for three years with a non-parole period of one year. One matter that fairly clearly resulted in the lower sentence and the lower non-parole period for TM was the fact that he had had what the sentencing judge described as a difficult childhood, unlike all of the other offenders. TM had been abandoned by his mother until he was aged about 15, his father had drug and mental health issues and had been in and out of gaol throughout most of TM’s childhood and adolescence, TM had been brought up by his grandmother, and his grandfather had been difficult also.

52. In her judgment in this Court, Yehia J referred to 13 helpline reports from the Department of Communities and Justice – Child Protection between 2006 and 2022 concerning TM. Those reports were in relation to neglect, psychological harm, inadequate nutrition, child exposure to domestic violence and risk of physical harm due to exposure to domestic violence. The applicant was exposed to violence in the family home as a young child and adolescent which contributed to his response in managing his levels of stress or anger through violence.

53. The other significant matter of distinction between the applicant and TM, although the distinction was not made by the sentencing judge, was the fact that although TM kicked Mr Campton when he was on the ground, the applicant actually stomped on his head.

54. Although this Court, when re-sentencing TM, did not make reference to the issue of parity, the position is that after re-sentence, TM’s non-parole period was reduced to a period of 9 months, whereas for the applicant the sentencing judge had provided a non-parole period of 18 months on a head sentence only 3 months greater than TM received. When the head sentences are 3.25 years and 3 years respectively, the difference in the non-parole period is significant.

55. It does not seem to me that either the different nature of the offending by each offender or the differences in their backgrounds can provide a sufficient explanation for the disparity in the non-parole periods which the offenders are required to serve. The disparity is marked and glaring.

56. The offending was serious, and I would not propose any alteration to the head sentence. However, I propose that, to take account of the sentence imposed on TM by this Court but also to have regard to the distinction between their offending and their backgrounds, and to the progress the applicant has made towards rehabilitation, the non-parole period for the applicant to be reduced to 12 months.

Conclusion

57. I propose the following orders:

1. Grant leave to appeal.

2. Uphold the appeal.

3. Quash the sentence imposed in the District Court on 13 March 2023.

4. In lieu, sentence the applicant to a non-parole period of 12 months commencing 26 December 2022 and expiring 25 December 2023 with a balance of term of 2 years and 3 months expiring 25 March 2026.

5. The applicant is first eligible for parole on 26 December 2023.

**********

Decision last updated: 06 October 2023