CA v The Queen

[2019] NSWCCA 93

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	CA v R [2019] NSWCCA 93
Hearing dates:	29 March 2019
Decision date:	08 May 2019
Before:	Hoeben CJ at CL at [1]; Garling J at [91]; Hidden AJ at [130]
Decision:	(1)   Grant leave to appeal. (2)   Appeal upheld. (3)   Quash the sentence imposed by Acting Judge Marien SC on 14 September 2018. (4)   Sentence the applicant to a term of imprisonment for a non-parole period of 1 year and 4 months commencing on 29 August 2018 and concluding on 28 December 2019 with a balance of term of 1 year and 8 months concluding on 28 August 2021. (5) Order pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 that the whole of the sentence be served as a juvenile offender.
Catchwords:	CRIMINAL LAW – sentence appeal – specially aggravated break and enter and commit a serious indictable offence – applicant sentenced to imprisonment for 3 years and 9 months with a non-parole period of 2 years – applicant aged 12 years and 10 months – 78 year old woman severely beaten with bricks and a piece of wood – significant psychological and physical injuries – lack of contrition and remorse – whether proper allowance made for applicant’s youth – whether proper allowance made for immaturity and impulsiveness of youth – whether proper allowance made for applicant’s deprived and violent background – whether too much weight given to protection of community – whether proper allowance made for time in custody solely related to this offence – whether totality properly taken into account – whether sentence was manifestly excessive – one appeal ground made out – re-sentence.
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) – ss 6, 19, 33(1)(e) Criminal Appeal Act 1912 (NSW) – s 5(1)(c) Crimes Act 1900 (NSW) – s 112(3) Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A(2)(g)
Cases Cited:	Aslan v R [2014] NSWCCA 114 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Ciaron McCullough v R [2009] NSWCCA 94; 194 A Crim R 439 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Engert v R (1995) 84 A Crim R 67 Hughes v R [2018] NSWCCA 2 KT v R [2008] NSWCCA 51; 182 A Crim R 571 Lehn v R [2016] NSWCCA 255; 93 NSWLR 205 MS2 and Ors v Regina [2005] NSWCCA 397 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Munda v Western Australia [2013] HCA 38; 249 CLR 600 R v Pham & Ly (1991) 55 A Crim R 128 Regina v Fernando [2002] NSWCCA 28 Vaiusu v R [2017] NSWCCA 71
Category:	Principal judgment
Parties:	CA – Applicant Regina – Respondent Crown
Representation:	Counsel: M Johnston SC – Applicant B Hatfield – Respondent Crown   Solicitors: Legal Aid NSW – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2018/30016
Publication restriction:	Non-Publication order re identity of complainant and offender
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 14 September 2018 Before: Marien SC ADCJ File Number(s): 2018/30016

JUDGMENT

1. HOEBEN CJ at CL:

The applicant is a juvenile so that the provisions of the Children (Criminal Proceedings) Act 1987 (NSW) (the Children’s Act) apply. In order to protect the identity of the applicant and his co-offender in the primary judgment, the sentencing judge referred to the applicant as “CA” and to the co-offender as “AD”. I have continued that nomenclature in this judgment so that it can be read conveniently with the primary judgment. Accordingly, references to “the applicant” are references to “CA”.

2. The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him by his Honour Acting Judge Marien SC in the District Court at Moree on 14 September 2018.

3. The applicant pleaded guilty on 27 June 2018 at the Moree Children’s Court to the offence of specially aggravated break and enter and commit a serious indictable offence, namely wounding. That offence is contrary to s 112(3) of the Crimes Act 1900 (NSW) (the Crimes Act) and attracts a maximum penalty of imprisonment for 25 years. The standard non-parole period of 7 years does not apply to the applicant because he was a juvenile. The co-offender, who was also a juvenile, was charged with the same offence.

4. The applicant was born in January 2005 and the co-offender was born in May 2000. Accordingly, at the time of the offending the applicant was aged 12 years and 10 months and the co-offender was aged 17 years and 6 months.

5. Pursuant to s 17 of the Children’s Act, the applicant was dealt with according to law. He was sentenced to a term of imprisonment of 3 years and 9 months, commencing 6 November 2018, and expiring 5 August 2022. There was a non-parole period of 2 years which will expire on 5 November 2020. Pursuant to s 19 of the Children’s Act, the sentence was ordered to be served as a juvenile offender in juvenile detention. The applicant was afforded a 25 per cent discount for his early plea of guilty.

6. The co-offender was sentenced to a term of imprisonment of 6 years, commencing 11 December 2018, and expiring 10 December 2024 with a non-parole period of 4 years expiring 10 December 2022. His Honour directed that the whole of the sentence be served by the co-offender as a juvenile offender in a juvenile detention centre.

Factual background

7. The offence was committed on 19 November 2017. At this time, the applicant was subject to a 12 month probation order, pursuant to s 33(1)(e) of the Children’s Act, for the offence of steal from the person as well as a 6 month bond for goods in custody. Those orders were imposed on 12 July 2017 at the Moree Children’s Court.

8. The sentencing judge had a statement of agreed facts before him. The victim was aged 78 at the time of the offence. She resided in Boland Street, Moree. She had lived at that address for 17 years. In October 2016 her husband passed away and thereafter she lived at the address by herself.

9. On 19 November 2017, at around 8.15pm the victim’s daughter and granddaughter came to the house to collect a suitcase because the three were due to leave for a cruise the next day. The victim went to bed immediately after her daughter and granddaughter left the house at around 8.20pm. As was her habit, she closed every door in her house except the door to the toilet and the door to her bedroom.

10. The victim had been lying in her bed for about five minutes when she heard a loud crashing sound like glass breaking. She got out of bed, walked to the kitchen and switched on a light in the dining room. She immediately saw glass on the floor and a large hole in the glass sliding door which was an exterior door. She heard voices from outside the door and turned on an outside light in the hope of scaring away any intruders.

11. The victim saw a male slide the glass door open and the applicant and his co-offender entered the house. She said “[g]et out of my house, you have no right to be here”. Both offenders laughed and swore at her.

12. The victim saw that both offenders were holding bricks in their hands. One of them walked past her to a bedroom, opened the door and looked inside. He closed the door, walked back past her and stood with the other offender. The other offender threw a brick at the victim which struck her on the face. The first offender then threw a brick which also struck her on the face. She fell to the ground and described being in terrible pain from these impacts.

13. The victim was then hit by a piece of timber. It is not known which of the offenders committed this act, but DNA matching that of both the applicant and the co-offender was found on a piece of timber recovered from inside the house. One of the offenders stepped over her and opened the door to the lounge room, walked in and returned a short time later with her handbag.

14. The victim said “[w]hat are you doing with my handbag?” The offender, who was holding her bag, laughed at her. Her face and hands were covered in blood. She attempted to use her telephone to obtain help, but did not have her glasses, and was unable to do so. She also attempted to activate a security alarm within the house but again failed because she was not wearing her glasses.

15. Somehow the victim was able to walk out of the house and knocked on her neighbour’s door for help. An ambulance was called and she was taken to hospital. A report of Dr Angus Brown, dated 5 April 2018, set out the injuries suffered by her:

1. an open displaced nasal fracture;

2. fractured right zygoma, right orbit, right maxillary sinus; and

3. significant bruising over her left eye which was unable to open due to swelling.

16. Photographs were taken of the victim in hospital and it was obvious from those photographs that she had received a very severe beating. In the photographs, her eyes were so swollen that she could barely open them. The photographs also show a number of abrasions and cuts to her body, and substantial parts of her nightie were covered in blood.

17. There was significant bruising over the right side of the victim’s face under the right eye, an open wound over the bridge of her nose and abrasions and skin tears on the left side of her face. There were abrasions over her left wrist and soft tissue swelling and torn skin in that location.

18. On 22 November 2017, acting on information received, police attended an address in Moree. They were met by the occupant, who advised that the applicant was inside, but that she was unable to let them in because her key was inside and all the exterior doors were locked. When the officers were unable to persuade anyone inside to open up, with the permission of the occupant, they lawfully forced entry into the premises. They arrested the applicant without incident.

19. When the applicant was interviewed by police, he said that he was aware of persons breaking into the house but that he was not involved.

20. On 29 January 2018, the co-offender was brought to the Grafton Police Station and was arrested. He was charged, but exercised his right to silence.

21. The DNA of the applicant was discovered on a brick found inside the house. His DNA was located on the inside of the victim’s purse. Her handbag was recovered but $1,027 in Australian currency, withdrawn the day before (being money that she intended to take with her on the cruise beginning 21 November 2017), was gone.

22. The victim did not return to her home after the offence because she was too afraid for her safety. On leaving hospital, she went to her daughter’s house and only returned to her house during the day because she was too frightened to stay overnight.

23. The victim subsequently sold her house in Moree and moved to Queensland to live with her son. She accepted an offer very soon after the house was placed on the market and the sale was at a considerable financial loss to her. The majority of her possessions and furniture had to be sold or given away because they would not fit in her son’s already furnished house.

24. The victim’s husband of 52 years, who passed away in October 2016, was buried in Moree. Before this offence, she would visit his grave every week. Since the attack, she was able to visit his grave only once. She had purchased a double plot so that she could be buried with her husband when she passed away. Because she now resides in Brisbane, her family will be put to significant expense in facilitating her burial beside her husband.

25. The victim’s relocation to Brisbane has significantly affected her in terms of the guilt she feels as a consequence of the additional burden placed on her son and daughter-in-law. She requires assistance to travel to all of her medical appointments and her son and daughter-in-law have been unable to relocate closer to her son’s place of employment because the victim needs to be near to Redcliffe Hospital for her frequent appointments.

26. By way of further background, on 31 January 2018 the applicant made a telephone call from the Acmena Juvenile Justice Centre. The call was recorded. During that call, the following exchange occurred:

“FEMALE – She [the victim] sold her house ‘cos she was too scared to live there.

APPLICANT – She sold it?

MALE – Yeah they moved to Queensland with her son.

APPLICANT – Yeah. That’s good. She lucky I didn’t kill the cunt.

FEMALE – It’s terrible what you did to her, you shouldn’t laugh about it.

APPLICANT – Huh.

FEMALE – You shouldn’t laugh about it ‘cos it’s not a joke what you did.

APPLICANT – What happened?

MALE – It’s not a joke what you did … don’t laugh about it.

APPLICANT – I laugh about it every night when I in my room when I’m bored looking out my window.”

27. The sentencing judge characterised that telephone conversation as showing that at that time (approximately two months after the offence) the applicant had a total lack of understanding of the seriousness of what he had done. The sentencing judge found that the conversation showed a callousness on the applicant’s part concerning his acts in committing the offence. His own counsel described the offence as “despicable”.

Sentence proceedings

28. On the basis of the facts set out above, the sentencing judge assessed the offence to be of a high order of seriousness. He described the acts which constituted the offence as callous and cruel in the extreme. His Honour found that the cruelty was totally gratuitous in the sense that it involved “needless yet intentional violence committed simply to make the victim suffer” (Ciaron McCullough v R [2009] NSWCCA 94; 194 A Crim R 439 at [30]).

29. His Honour observed:

“[c]rime and indeed serious crime committed by juveniles can often be explained as arising from the immaturity and impulsiveness of youth; see Hearne v R (2001) 124 A Crim R 451; but this calculated, cruel and callous attack by these offenders armed with bricks and a piece of timber on an elderly vulnerable woman alone in her house at night, was clearly an act not borne from the immaturity and impulsivity of youth. It was an act borne from darker recesses which I am unable to fathom.”

30. The sentencing judge found that the emotional harm caused to the victim was substantial so as to aggravate the offence in accordance with the provisions of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). His Honour found that the offence was further aggravated by the following factors:

1. the offence was committed in the home of the victim;

2. the offence involved the actual use of a weapon;

3. the offence was committed in company;

4. the offence involved gratuitous cruelty which elevated its objective seriousness;

5. the victim was vulnerable;

6. there was a degree of planning involved; and

7. the applicant was subject to conditional liberty at the time of the commission of the offence.

31. Taking all those matters into account, the sentencing judge assessed the objective seriousness of the offending as “at the upper level of objective seriousness for offences of this kind” (Sentence judgment 8.5).

32. The sentencing judge noted that the applicant was not assisted by his criminal record which was extensive, albeit that of his co-offender was more serious and more extensive.

33. His Honour found that although there was a difference in the ages of the offenders of five years, the applicant was not led into the offending or influenced by the co-offender to commit the offence. The applicant specifically denied that proposition when asked by Juvenile Justice officers. The applicant told those Juvenile Justice officers, who prepared the background report in relation to him, that on the day of the offending he met with the co-offender in the late afternoon and went to a cousin’s house where he proceeded to consume both marijuana and alcohol. The applicant said that he and the co-offender “kicked back” at his cousin’s house and then went in search of a house to break into for money. His Honour noted that this account was “completely at odds” with another account given by the applicant to a Juvenile Justice officer which was to the effect that the co-offender had suggested that they break into a house and that they both agreed on the victim’s home because they knew that a “white person” lived there.

34. Because the applicant did not give evidence in the sentence proceedings, his Honour was not able to resolve that issue.

35. The sentencing judge then considered the subjective case of the applicant. In the absence of oral evidence from him, his Honour relied upon the background report from Juvenile Justice, dated 31 August 2018, and the psychological report from Juvenile Justice of the same date. A Mr Spence from Family and Community Services (FACS), who was the Director, Community Services for New England, gave evidence on behalf of the applicant.

36. The background report stated that the applicant was a young, indigenous male born and raised in Moree. He had a disturbed and highly dysfunctional upbringing. Both his parents had spent long periods of time in custody throughout his life. His two older brothers had also spent time in both juvenile and adult custody.

37. The report stated that his family dynamics were a contributing factor to his offending behaviour. The applicant was taken into the care of the Minister in January 2016. Since he entered into care, there had been great difficulty in maintaining authorised placement support for him. He had a history of absconding from authorised residential placements and returning to live with family members in Moree and Tamworth. The report stated that when released, FACS plans for him included his residing away from Moree and Tamworth with two to one supervision and care 24 hours a day with intensive case work to be provided to him.

38. In his evidence, Mr Spence conceded that in some respects FACS had failed in the interventions they had thus far provided for the applicant. He described the challenges that properly caring for the applicant had presented in the past.

39. The psychological report stated that the applicant was exposed to significant traumatic events in his formative years. Up to the age of 11 he was part of a family context of poverty, domestic violence, substance abuse and offending. As a result, his offending behaviour had been largely normalised and encouraged through the social and family environment in which he was raised. The report referred to entrenched inter-generational offending and pro-criminal attitudes which existed in his family background.

40. Psychometric testing placed the applicant’s cognitive functioning in the extremely low range. He had difficulty with the daily activities required to be performed by him for personal and social sufficiency. The report identified the applicant as having longstanding difficulties with hyperarousal and low frustration tolerance. The report linked his underdeveloped cognitive functioning and impaired problem solving ability to his family background.

41. The sentencing judge noted the following part of the psychological report as a matter of concern:

“[w]hilst he initially engaged in avoidant type behaviour to manage these difficulties over time, he has become increasingly likely to engage in verbal and physical aggression.” (Sentence judgment 11.9, psychological report 8.9)

42. The sentencing judge set out his conclusions as a result of that material as follows:

“[d]espite the reference in the report to several strengths, including his attachment to his family and mentor, his eagerness to engage in education and his curiosity and willingness to learn about his indigenous culture and background, my assessment as to the prospects of rehabilitation on the evidence presently before me must be guarded.” (Sentence judgment 12.2)

43. It was accepted that the applicant had pleaded guilty at the first reasonable opportunity. His Honour allowed a 25 per cent discount for the utilitarian value of the plea.

44. Because the applicant did not give evidence in the sentence proceedings, the sentencing judge was not prepared to find that he was remorseful and contrite for what he had done. On that issue, his Honour was influenced by the telephone conversation to which reference has been made. When asked about that conversation, he was unable to explain it. Moreover, in the Juvenile Justice reports, he was unable to explain why he armed himself with a brick before entering the victim’s home.

43. The sentencing judge noted that the background report referred to the applicant displaying a lack of remorse and a callous approach to the victim after he was arrested and placed in custody. His Honour was not satisfied that the applicant was genuinely remorseful.

44. The sentencing judge was conscious of the principles relating to the sentencing of juveniles and in particular that he had to take into account s 6 of the Children’s Act. This required his Honour to take into account that children who commit offences bear responsibility for their actions but because of their state of dependence and immaturity require guidance and assistance. His Honour also noted the philosophy behind the legislation, i.e. that it was desirable that children who commit offences be assisted with rehabilitation and re-integration into the community so as to sustain family and community ties.

45. His Honour took as his guidance the following observations by McClellan CJ at CL in KT v R [2008] NSWCCA 51; 182 A Crim R 571 at [22]-[23]:

“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]).”

48. Having set out that statement of principle, his Honour said:

“As I have stated earlier in these reasons, it is difficult to see, with the highly objective seriousness of the offence committed by these offenders, how it could be said that this offending was born from the immaturity and impulsiveness of youth.” (Sentence judgment 17.3)

49. His Honour went on to say:

“It has been held that the youth of an offender does not automatically lead to a reduced sentence. The greater the objective gravity of an offence, the less likely it is that retribution and general deterrence will cede to the interests of rehabilitation. See IE v R [2008] NSWCCA 70; 183 A Crim R 150 at [16].”

50. His Honour was conscious of the weight to be placed upon rehabilitation when sentencing juveniles. His Honour was, however, also conscious of the qualifications on the application of that principle. By reference to the observations in R v Pham & Ly (1991) 55 A Crim R 128 his Honour referred to what the then Chief Judge at Common Law, Lee J, said in the context of two offenders who were aged 17 and 19 at 135.

“[i]t 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 homes…”

51. In view of the applicant’s deprived background and exposure to violence in his formative years, his Honour had regard to the following statements of principle by the High Court (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ) in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 where their Honours said:

“43   The Director's submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

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

52. The sentencing judge regarded that last observation by the High Court as pertinent to this matter so that the fact that an offender came from a deprived, dysfunctional and abusive background did not automatically result in a lesser sentence because there were cases where the consideration of community protection must be given particular weight in the sentencing exercise.

53. His Honour took into account that the principle also applied where an offender had a cognitive impairment. On that issue, the sentencing judge said:

“[i]t is the law with respect to an offender suffering a mental illness or a cognitive impairment that less weight will be placed upon the consideration of general deterrence, because such a person is not an appropriate vehicle for a demonstration of general deterrence in sentencing that person. But again, as Gleeson CJ said in the case of Engert, which is referred to in Bugmy, even taking into account that an offender suffers from a cognitive impairment or a mental illness, there may still be cases where considerations of community protection must be given particular weight. Again, in my view, that statement applies in this case.” (Sentence judgment 19.2)

54. The sentencing judge recognised that this was a difficult sentencing exercise with conflicting principles. His Honour was conscious of the youth of the applicant, his deprived and dysfunctional background and that he suffered from a cognitive impairment. On the other hand, his Honour was aware that the applicant’s prospects of rehabilitation were not favourable and that the “extreme violence and gratuitous cruelty” involved in the commission of the offence meant that considerable weight needed to be given to the protection of the community in the sentencing exercise.

55. His Honour further noted that at the time of the sentence proceedings, the applicant was serving a sentence of imprisonment for an offence of assault a law officer which had occurred on 22 May 2018. There was a severity appeal before his Honour in relation to that matter. In the Local Court the applicant had been sentenced to imprisonment for 8 months with a non-parole period of 4 months. His Honour allowed the appeal and reduced that sentence to imprisonment for 7 months with a non-parole period of 3 months.

56. On the basis of what he had been told by the Crown, his Honour was not aware that since his arrest on 22 November 2017 the applicant had spent some time in custody solely by reference to this offence. In those circumstances, his Honour fixed 6 November 2018 as the commencement date for the s 112(3) offence which was the expiry date of the non-parole period of the sentence which his Honour imposed for the assault law officer offence.

57. His Honour found special circumstances in favour of the applicant on the basis of his youth and the need for intensive supervision in the community upon his release to parole.

58. Having passed sentence on the applicant, his Honour concluded the sentence judgment as follows:

“At the outset of these reasons I indicated that the maximum penalty for this offence is 25 years imprisonment. Some may think that the sentences I have just imposed are too lenient. Some may think the opposite. However, for those who might think the sentences are too lenient I remind everyone that I had to take into account the fact that I am sentencing, at the time they committed these offences, children at law. In relation to CA he was a 12 year old child. The Court has to consider the purposes of punishment to which I have referred, but also take into account the youth of the offenders in the hope that their prospects of rehabilitation will improve with their maturity.” (Sentencing judgment 22.4)

THE APPEAL

Ground 1 – The sentencing judge erred in his interpretation and application of the principles relating to youth and immaturity

59. The applicant submitted that despite the sentencing judge referring to the principles applicable to the sentencing of young persons, as set out in KT v R, his Honour did not apply those principles and rejected the immaturity and impulsiveness of youth as a contributing factor to the offences. In support of that submission, the applicant relied upon the following:

“As I have stated earlier in these reasons, it is difficult to see, with the highly objective seriousness of the offence committed by these offenders, how it could be said that this offending was born from the immaturity and impulsiveness of youth.” (Sentence judgment 17.2)

60. The applicant submitted that this finding by his Honour was inconsistent with the evidence tendered through Juvenile Justice by way of the background report and psychological report. The applicant submitted that it was clear from those reports that his offending was linked to a range of factors including global cognitive deficits and his exposure to trauma, domestic violence and neglect. The applicant submitted that because of his young age and background environment, he had not had the opportunity to develop the cognitive skills necessary to control his propensity to resort to violence.

61. The applicant submitted that the sentencing judge erred by concluding that the level of planning and serious factual circumstances were inconsistent with the conduct of an immature young person. The applicant submitted that those remarks ignored the statements of principle in KT v R to the effect that the weight to be given to the fact of an offender’s youth does not vary depending on the seriousness of the offence. On that issue, the applicant also relied upon MS2 and Ors v Regina [2005] NSWCCA 397 where Hoeben J (with whom Simpson and Adams JJ agreed) said:

“66   His Honour’s review of the principles applicable to the sentencing of children was comprehensive and accurate. So also was his Honour’s analysis of the factual background and subjective matters relating to MS2. Nevertheless I am of the opinion that his Honour did err in his conclusion that the preplanning of the offence of itself rebutted the proposition that these offences were the product of an immature mind.

67    MS2 at age 15 years and 7 months was very young. The very reasons identified by his Honour (ROS 39) for being unable to understand the motivation for these violent offences indicates, in my opinion, that immaturity in the sense of not appreciating the potentially devastating effects of violent conduct, played a significant part in the commission of these offences by MS2…”

62. The applicant submitted that the sentencing judge’s rejection of immaturity as a significant factor in the offence must have resulted in his Honour imposing a sentence that was too severe for a person of his age, maturity and cognitive development.

Consideration

63. The applicant submitted that the comments of the sentencing judge at [29] and [48]-[49] hereof were inconsistent with the evidence from Juvenile Justice linking the applicant’s youth and developmental deficits to the offending conduct and as a result replicated the error in MS2 and Ors v Regina (at [61]).

64. That submission does not fairly summarise the approach of the sentencing judge to the applicant’s youth. His Honour made it clear that he was very conscious of the young age of the applicant and gave that factor considerable weight. The point which his Honour sought to make in the impugned paragraphs was, however, that impulsiveness and immaturity which are the product of youth do not fully explain the element of gratuitous cruelty involved in the acts which made up the offence. The impugned passages do not amount to a rejection of the relevance of the applicant’s youth and the fundamental part which it played in the sentence ultimately imposed. Those paragraphs identify a valid and proper distinction which could be made by the sentencing judge.

65. Moreover, the sentencing judge did not, either expressly or implicitly, reject the evidence of Juvenile Justice in either the background report or the psychological report. His Honour clearly accepted the significant part played in the applicant’s offending by his dysfunctional upbringing which normalised violent and aggressive behaviour. When one takes into account the objective seriousness of the offending but also has regard to the sentence ultimately imposed, it is apparent that the sentencing judge gave significant weight to both those matters and the applicant’s youth.

66. When one compares the facts of this case with those in MS2 and Ors v Regina it is apparent that the sentencing judge in this case did not fall into that error. In MS2 and Ors v Regina the sentencing judge rejected the offender’s immaturity as a significant cause of the offence because of the evidence of pre-planning. In this case his Honour did not reject outright the applicant’s immaturity and exposure to violence in his formative years. His Honour gave those factors appropriate weight but also took into account other matters such as the protection of the public and those elements of the offending which could not be adequately explained by the impulsiveness and immaturity of youth.

67. The sentencing judge recognised that there was a complex range of factors arising from the applicant’s background, his cognitive defects and his youth. The effect of his Honour’s judgment, however, was that account had to be taken of other matters which his Honour identified in the instinctive synthesis associated with the imposition of a sentence of imprisonment. Accordingly, it was not unimportant that the applicant, despite his youth, had not been led into the offending by his considerably older co-offender.

68. It is clear from the sentences actually imposed that his Honour made a significant allowance for the youth of the applicant and his traumatic background in that the starting point for the sentence of the co-offender (who was also in law a juvenile) was 8 years before the application of the 25 per cent discount, whereas the starting point for the applicant was 5 years. Moreover, in the applicant’s case the ratio of the non-parole period to the head sentence made a significant allowance for a lengthy period of parole.

69. As his Honour appreciated in his final observations (see [58] hereof), opinions might differ markedly in relation to the sentence which he imposed with some considering that the sentence was too harsh and others that it was too low.

70. No error has been identified on the part of his Honour. This ground has not been made out.

Ground 2 – The sentencing judge erred by not backdating the sentence to take into account time in custody referable to this offence

71. There is no need to set out the reasoning behind this ground. This is because the following concession was made by the Crown in its written submissions:

“38   On the basis of the above analysis of the Justicelink records it appears that the first period of custody was referable to the present matter (and at least in part to some other unrelated matters) and the second period of custody was solely referable to the present matter. The sentencing judge was erroneously informed in the Crown’s submissions on sentence that “neither offender has served a period of presentence custody referable to this matter”.

39   Accordingly it is conceded that leave should be granted in relation to this ground and the ground of appeal should be upheld but only to the extent required to vary the commencement date. It is submitted that the error is of a kind for which it is not necessary to re-exercise the sentencing discretion Lehn v R [2016] NSWCCA 255; 93 NSWLR 205 at [72] (Bathurst CJ); [118] (Beazley P); [125] R A Hulme J; [129] Schmidt J); [141]-[142] Wilson J.”

I do not understand the applicant’s written submissions to be contrary to the concession made by the Crown in that the relief asked for by the applicant is that his “sentence” should be backdated to take account of the 2 months and 8 days in custody referable to this matter.”

72. In the circumstances of this case, I am of the opinion that the applicant’s success on this ground of appeal does not require the full resentencing process but rather, as set out in Lehn v R [2016] NSWCCA 255; 93 NSWLR 205, an adjustment to the commencement date of the sentence as submitted by the applicant. Accordingly, the commencement date of the sentence should be changed from 6 November 2018 to 29 August 2018.

Ground 3 – The sentencing judge erred by failing to take into account totality

73. The applicant submitted that he had been in continuous custody from 20 April 2018. This timeframe included a control order of 2 months for two offences of resist officer in the execution of his duty commencing 20 April 2018 and concluding on 19 June 2018. That timeframe also included a period when he was bail refused from 20 June 2018 to 6 August 2018. There was also the offence of assault officer for which he received a non-parole period of 3 months commencing 6 August to 5 November 2018. The applicant noted that the sentence for the s 112(3) offence was fixed to commence on 6 November 2018 and in that regard was fully cumulative upon the non-parole period for the assault officer sentence.

74. The applicant submitted that given his young age, there were compelling reasons to adjust the s 112(3) sentence so that there was some element of concurrency with the earlier sentences. The applicant submitted that when one took into account the earlier sentences the result was a total head sentence of 4 years and 3 months with an effective non-parole period of 2 years and 6 months. The applicant submitted that the sentencing judge erred in failing to consider the impact of such cumulative sentences on a 13 year old and that his Honour failed to consider whether a significant degree of concurrence was appropriate to reflect the overall criminality and avoid crushing any prospect of a normal childhood for him outside a Juvenile Detention Centre.

75. The applicant submitted that youth and rehabilitation must also be taken into account when considering totality. The applicant submitted that there was a substantial public interest in the rehabilitation of young offenders which was not served by the imposition of an entirely cumulative sentence for the s 112(3) offence.

Consideration

76. As a result of the applicant’s success on Ground 2, which has produced a backdating of the commencement date of the sentence currently under consideration, this ground has lost much of its force. Moreover, as the respondent has pointed out in submissions, it was conceded in the sentence proceedings by counsel for the applicant that it was open to his Honour to make the s 112(3) offence cumulative upon the assault law officer offence and ultimately counsel for the applicant did not make any submission to the contrary.

77. In those circumstances the applicant should be bound by the approach taken by his legal advisers in the sentence proceedings. This ground of appeal has not been made out.

Ground 4 – The sentence is manifestly excessive

78. The applicant submitted that it could be seen from the starting point, before the 25 per cent discount, that the head sentence in this matter was excessive, i.e. 5 years. The applicant submitted that although the sentencing judge purported to take into account his young age and his cognitive deficit the sentence failed to reflect those considerations. He submitted that his immaturity, lack of adult value judgments, adult experience and adult appreciation of consequences should have resulted in a lesser sentence. The applicant submitted that his cognitive impairment required that considerations of general deterrence were of lesser significance (Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [53]-[54]).

79. The applicant submitted that in addition to his youth, his background of crime and violence should have resulted in a lesser sentence. The applicant submitted that his childhood and the violence he witnessed adequately explained his desensitisation to violent behaviour and inability to appreciate the seriousness of his criminal conduct. The applicant submitted that the sentencing judge although recognising these factors ultimately placed too much weight on the “protection of the community” and failed to properly temper the sentence “by considerations of compassion which arise when the court is presented with information about the personal circumstances which had led an individual into a life of crime” (Regina v Fernando [2002] NSWCCA 28 at [64]).

80. The applicant submitted that, taking all those matters together the sentence imposed was manifestly excessive.

Consideration

81. There have been a number of recent statements of the principles to be considered when assessing whether a sentence is manifestly excessive or not. In Hughes v R [2018] NSWCCA 2 at [86] the Court (Payne JA, R A Hulme and Garling JJ) summarised the relevant principles as follows:

“86   When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

(1)   appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

(2)   intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

(3)   it is not to the point that this Court might have exercised the sentencing discretion differently;

(4)   there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

(5)   it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

SeeObeid v R [2017] NSWCCA 221 (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443].”

82. In Vaiusu v R [2017] NSWCCA 71 at [29] R A Hulme J also said:

“29   To the extent that the applicant complains of insufficient weight having been given to the applicant's subjective case it must be borne in mind that matters of weight are very much in the province of the sentencing judge and the circumstances in which matters of weight will justify appellate intervention are narrowly confined: Yang v R [2012] NSWCCA 49 at [25]. Further, as Button J observed in Hanania v R [2012] NSWCCA 220 at [33], “the only way that one can test whether a factor (to which regard or weight has indeed been given) was considered sufficiently, is by examining the sentence ultimately imposed”.”

83. A problem for the applicant which underpins all of his submissions on this ground is his acceptance that the sentencing judge covered all the relevant factors in his consideration but that he fell into error by giving inadequate weight to some factors and excessive weight to others. This Court has said on a number of occasions that challenges to the “weight” which should be given to pieces of evidence is a fundamental challenge to the exercise of the sentencing discretion. It sits uneasily with the acknowledged principle that “there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle”.

84. It also needs to be kept in mind that the observations of the High Court in Bugmy v The Queen do not exhaust the jurisprudence in that area when consideration is being given to the punishment of persons who have been raised in circumstances of deprivation and violence. In Munda v Western Australia [2013] HCA 38; 249 CLR 600, which was handed down at the same time as the decision in Bugmy v The Queen, the plurality (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) said:

“54   It may be argued that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of misconduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion. That having been said, there are three points to be made in response. First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community.

55   A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.”

85. The difficulties with formulating an appropriate sentence and having due regard to sentencing principles which often pull in different directions, was succinctly summarised by Gleeson CJ in Engert v R (1995) 84 A Crim R 67 at 68:

“[t]he interplay of the considerations relevant to sentencing may be complex… In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance…

It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances.”

86. Her Honour Simpson J made observations to similar effect in Aslan v R [2014] NSWCCA 114 when she noted that none of the principles stated in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 were absolute. Her Honour said:

“34   It will be observed that none of these principles is stated as absolute. What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that, because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.”

87. In this case the sentencing judge gave detailed consideration to the principles in Bugmy v The Queen and acknowledged that they had application to the applicant. However, his Honour also considered the countervailing consideration of protection of the community which was identified in Bugmy v The Queen as a matter which must be given weight in the sentencing exercise. His Honour did not err in so doing.

88. When one looks at the length of the sentence and has regard to the whole of the evidence, particularly the gratuitous cruelty associated with the beating with bricks and a piece of wood administered to a 78 year old victim, but also the difficult task of balancing against that the applicant’s youth, his dysfunctional background and mental difficulties it cannot be said that the sentence imposed by his Honour was not open to him. The sentencing judge was not only cognisant of the relevant factors but specifically dealt with them in the course of his judgment.

89. It follows from the above that this ground of appeal has not been made out.

Conclusion

90. The orders which I propose are:

1. Leave to appeal against sentence is granted.

2. The appeal is dismissed.

91. GARLING J: I gratefully adopt the summary of the facts and the sentence delivered which is set out in the Chief Judge’s judgment.

92. However, I am unable to agree with the orders proposed by the Chief Judge.

93. In my view, the appeal ought be upheld and the applicant re-sentenced.

Ground 1 – Error in Dealing with the Applicant’s Youth and Maturity

94. At the time the applicant committed the crime on 19 November 2016, he was 12 years and 10½ months old.

95. The applicant’s co-accused was 17 years and 5 months old.

96. According to the Juvenile Justice Report, the applicant was born and raised in Moree and is of Aboriginal heritage. As a child, the applicant was subject to domestic violence, and drug and alcohol abuse by his parents. Both of the applicant’s parents have been imprisoned for significant lengths of time. His two older brothers have spent time in both juvenile and adult custody.

97. The applicant entered into the care of the Minister for Family and Community Services in May 2016. That date was a few months past his eleventh birthday. Between that time and when the applicant came to be sentenced in September 2018, the Department of Family and Community Services (“FACS”), which was responsible for maintaining an authorised placement for the applicant, was unable to do so successfully.

98. The applicant’s family connections were in Moree. One of the reasons for the unsuccessful residential placement by FACS was that it was in Armidale and the applicant wished to be with family members in Moree.

99. In February 2018, FACS had placed the applicant with an agency in Tamworth. There he had access to an Aboriginal mentor. There was significant progress in the applicant’s relationship with his mentor and with his engaging in appropriate cultural activities. However, FACS recognised that he remained challenged by being away from Moree and his family. Such a conclusion is unsurprising given his youth.

100. The applicant, at the conclusion of a series of court matters, absconded from the FACS caseworker in Tamworth and returned to Moree. At that time he was arrested for this offence and he entered custody on 23 April 2018.

101. The applicant had minimal engagement at school, with the consequence that he has very limited literacy and numeracy skills.

102. The Juvenile Justice report confirmed that whilst living in Moree, prior to this offence, the applicant associated with a group of young people aged between 10 and 15 years who “… do not attend school and are not involved in pro‑social activities within the community”.

103. The applicant told the author of the Juvenile Justice report that his co-offender suggested that they should break into the house, which was selected because they knew “a white person” lived there. The applicant suggested that both he and his co-offender were equally responsible for the offence.

104. Importantly, the report contained the following description about the circumstances in which the applicant was living at the time of the offence. It said that those circumstances:

“… provided no structure, support or guidance to [the applicant], he was left to do as he pleased which [the applicant] enjoyed. He was not attending school and was not engaged in any pro-social activities.

[The applicant’s] motivation for the offence was to obtain money, his behaviour was impulsive and the offence was planned to some degree.”

105. It is unclear to what the author was referring when he said that the offence was “…planned to some degree”. The Statement of Agreed Facts contains no reference to any conduct on the part of the applicant (or his co-offender) which could be described as “planning”.

106. The Juvenile Justice report recorded that the author suspected that the applicant might have an intellectual disability and that he had been engaged in cognitive testing with specialist psychologists. The results of that testing were put before the Court at the time of sentencing. The Juvenile Justice report did record that a psychologist at the Reiby Juvenile Justice Centre (“Reiby”) reported that the applicant’s ability to process information was compromised, and he struggled to cope with being unable to comprehend information given to him.

107. Of importance, the report records the following:

“[The applicant] acknowledges that the offence happened but does not understand the future impacts or consequences.

[The applicant] is a 13 year old Aboriginal boy who was raised in a very dysfunctional family, he has not developed many of the social, logical or reasoning skills that older children have.”

108. The sentencing Judge also had before him a report prepared by a psychologist at Reiby. That report recorded the following:

“[The applicant’s] neurological development was impeded due to exposure to trauma and domestic violence, neglect and inadequate supervision, and parental substance use in his formative years. Given [the applicant’s] age and vulnerability, his disregulated behaviours and emotions reflect that of a complex trauma response.”

109. In June 2018, whilst in custody, the Wechsler Intelligence Scale for Children was administered. The results of that testing indicated that the applicant’s cognitive function was in the extremely low range, where he performed at or better than only 3% of age-related peers. Further testing on the Adaptive Behaviour Assessment System found that the applicant was in the extremely low range, that is to say, higher than only 1% of individuals of the same age.

110. Further, it was noted that the applicant had a limited capacity to communicate his feelings or needs and he had a short attention span.

111. The psychologist also indicated that the applicant’s adaptive functioning and intellectual ability scores indicated a level of functioning that would meet the diagnostic threshold in the DSM-5 for a person with intellectual disability.

112. The psychologist’s report included the following:

“[The applicant] was exposed to significant traumatic events in his formative developmental years. [The applicant] experienced disrupted attachment to his primary caregivers at the age of 11, when he was placed in out of home care. Prior to the age of 11, he grew up in a family context of poverty, domestic violence, substance use and offending. [The applicant’s] offending behaviour has been largely normalised and encouraged through the social and family environment he grew up in due to entrenched inter-generational offending and pro-criminal attitudes. His propensity to expressing anger can be understood as a result of the various individual, family and community traumas he experienced and a biological vulnerability leaving him less able to regulate his emotions. The utilisation of violence to solve problems appears to have been normalised in [the applicant’s] broader extended family and peer group, and as a maladaptive response to environmental and emotional stressors.

[The applicant] has encountered long-standing and global difficulties pertaining to cognitive functioning, leading to difficulties learning within formal educational settings. In response to these difficulties [the applicant] has engaged in avoidance-based strategies wherein he began truanting from school from an early age. He appears to have been able to further mask these learning difficulties by a propensity to come across as over-confident in his abilities, and his tendency to assess people around him in order to manipulate them to meet his needs. In addition, his propensity for rule-breaking within educational settings has likely also served to further conceal his pervasive difficulties relating to cognitive functioning.

[The applicant] reports long-standing difficulties. These difficulties pertain to hyper-arousal and low frustration of tolerance. This is likely linked to his underlying trauma and propensity for anxiety, under-developed cognitive functioning and impaired problem-solving ability. Whilst he initially engaged in avoidant type behaviours to manage these difficulties, over time he has become increasingly liable to engage in verbal and physical aggression.

[The applicant] has a general propensity for rule-breaking and disregarding societal conventions coupled with a general disregard for the feelings of others. [The applicant’s] most recent engagement in rule breaking appears to have been precipitated by his increased association with anti-social peers as he is highly susceptible to the influence of others. His recent offending behaviour appears to be also exacerbated by his difficulties tolerating feelings of boredom, automatic avoidant tendencies, and a lack of FACS involvement.”

113. In dealing with the applicant’s youth, the sentencing Judge, having set out the factual circumstances of the offence, described the position of both offenders in these terms:

“Crime and indeed serious crime committed by juveniles can often be explained as arising from the immaturity and impulsiveness of youth, … but this calculated cruel and callous attack by these offenders armed with bricks and a piece of timber on an elderly vulnerable woman alone in her house at night, was clearly an act not borne from the immaturity and impulsivity of youth. It was an act borne from darker recesses which I am unable to fathom.”

114. This summary was expressed as being equally applicable to both offenders, even though the applicant’s co-offender was significantly older and more mature, although also suffering from an intellectual disability. The basis for this conclusion when considered with respect to the applicant seems to be agreed facts of, and the nature of, the crime. Put differently, the sentencing Judge has found that such was the offence that the applicant’s immaturity had nothing to do with it. Rather, the sentencing Judge concluded, on a basis which is elusive, that the cause was unfathomable “darker recesses”.

115. This conclusion by the sentencing Judge is attacked as erroneous by the applicant. He submitted that this finding was inconsistent with the unchallenged evidence contained in the report of the psychologist obtained by Juvenile Justice. In particular, the applicant submitted that in circumstances where he has not had the opportunity to develop cognitive skills to control his propensity to violence, or to fully appreciate the consequence of his actions, it was wrong for the sentencing Judge to find that his impulsivity and immaturity had no causal role to play in the commission of the offence.

116. Unlike the Chief Judge’s conclusions in [64]-[65], I cannot accept that the sentencing Judge was in the remarks set out in [23] above, seeking to explain only the element of gratuitous cruelty involved in the offence. There are a number of reasons for my conclusion. First, the words used by the sentencing Judge do not suggest any limitation of his comment only to the element of gratuitous cruelty. Secondly, the sentencing Judge’s words do not permit that limitation to be drawn. He refers to a “calculated, cruel and callous attack” as being “an act not borne from the immaturity and impulsivity of youth” which, as I read the words, refers to the entire attack and all of the applicant’s actions which constitute the offence. Thirdly, if the sentencing Judge’s conclusion was so limited, one would have expected to see additional reasons when his Honour explicitly took into account the applicant’s immaturity and impulsivity with respect to the other features of the offence, but there is no such reasoning.

117. As well, I am persuaded that the sentencing Judge erred because in discussing the effects of immaturity and impulsivity as causal features of the offence, attention needed to be explicitly given to the significant disparity in age between the applicant and his co-offender. That disparity was in the order of 4½ years. The immaturity and impulsivity of the applicant who had not reached his thirteenth birthday, could not, on the material before the sentencing Judge, be equated with that of his co-offender as causal features of their respective offending. His Honour in dealing with them together in this respect was in error.

118. It can also be seen from the Remarks on Sentence that the sentencing Judge regarded considerations of community protection as deserving “particular weight” and “considerable weight”. In expressing these remarks, his Honour drew attention to, principally, two decisions: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [43]-[44] and Engert v The Queen (1995) 64 A Crim R 67 at pages 68, 71.

119. It is to be observed that in the passages in those cases referred to, there is no statement of principle except that a sentencing judge is required to take account of all relevant factors in the process of the exercise of the judicial discretion in the individual case. Those factors include profound childhood deprivation and the effect of mental disorders. Both of the cases relied upon involved adult offenders and were not concerned with the sentencing of juveniles. Accordingly, neither case necessitated a close examination of the interaction in juvenile sentencing of factors that are in tension, nor did either case make statements which were applicable in a direct way to the present circumstance.

120. The emphasis which the sentencing Judge placed on the protection of the community by reference to these cases, is a further indication that he fell into error by failing to have due regard to the youth, immaturity and impulsivity of the applicant.

121. Accordingly, I would grant leave to the applicant to appeal and I would uphold Ground 1. This has the effect that the applicant should be resentenced, as the error goes to a central part of the exercise of the sentencing discretion.

122. This conclusion also means that it is both unnecessary and inappropriate to consider or determine Grounds 3 and 4.

123. I agree with the Chief Judge’s conclusion at [72] with respect to Ground 2 that any sentence of imprisonment ought to have commenced from 29 August 2018. I will give effect to this conclusion in expressing the appropriate sentence to be imposed.

Resentencing

124. Both the judgment of the Chief Judge and my earlier remarks have touched upon all of the salient features of the offence and the applicant’s subjective case. Those facts do not need to be restated.

125. In the event that the applicant were to be resentenced, further material has been placed before the Court by way of his own affidavit, and also by an affidavit of his solicitor, Ms Carli Rothman. I have had careful regard to their evidence. It appears from this evidence that the applicant’s education has improved, and that he has benefited from education and other programs whilst in custody. He also appears to have an improved and more mature appreciation of the consequences of his offending, particularly to the victim. This augurs well for the future. Much will, of course, depend on his re-integration into his family and the community.

126. An affidavit of the applicant’s FACS case worker was also read. It suggests that the applicant has been taking his education very seriously and that there has been some detectable improvement in reading, literacy, numeracy and comprehension skills. An opinion is expressed that, based on his progress to date, there is reason to believe that the applicant “… has the possibility of changing his trajectory in life to one of opportunity”. The caseworker also indicated that the applicant would have access to significant ongoing and intensive supervision once released from custody on parole.

127. It is necessary to keep in mind the statutory principles of sentencing articulated in both the Children (Criminal Proceedings) Act 1987 and also the Crimes (Sentencing Procedure) Act 1999.

128. Having regard to all of the relevant matters, and keeping in mind that an appropriate discount of 25% is to be allowed, I would sentence the applicant to a non-parole period of 1 year and 4 months commencing on 29 August 2018 and concluding on 28 December 2019, with a balance of term of 1 year and 8 months expiring on 28 August 2021. I would direct that the whole of the sentence be served as a juvenile offender.

Orders

129. I propose the following orders:

1. Grant leave to appeal.

2. Appeal upheld.

3. Quash the sentence imposed by Acting Judge Marien SC on 14 September 2018.

4. Sentence the applicant to a term of imprisonment for a non-parole period of 1 year and 4 months commencing on 29 August 2018 and concluding on 28 December 2019 with a balance of term of 1 year and 8 months concluding on 28 August 2021.

5. Order pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 that the whole of the sentence be served as a juvenile offender.

130. HIDDEN AJ: This was a serious and disturbing case, and I acknowledge that the sentencing judge faced an unenviable task. However, I agree that his Honour fell into error in the manner identified by Garling J. I agree with the orders proposed by Garling J and with his Honour’s reasons.

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Amendments

09 May 2019 - Counsels' names omitted from cover sheet.

09 May 2019 - Error at par [71] third para

Decision last updated: 09 May 2019