CW v The The Queen

[2022] NSWCCA 50

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

CW v R [2022] NSWCCA 50

Hearing dates:

22 October 2021

Date of orders:

11 March 2022

Decision date:

11 March 2022

Before:

Johnson J at [1];
Rothman J at [2];
Hamill J at [3]

Decision:

(1)   Leave to appeal granted.

(2)   Appeal dismissed.

Catchwords:

CRIME – Appeals – Appeal against sentence – reckless infliction of grievous bodily harm – victim a 9 week old infant – fractured ribs – “karate chop” – squeezing – additional assaults resulting in fractured wrist and bruising to face – multiple assaults – twenty year old ill equipped father – personal history of trauma, dysfunction and violence – psychologist’s report –– whether sentencing judge failed to assess moral culpability – whether failure to apply “Bugmy principles” – whether Judge erred in approach to youth and immaturity – ex tempore judgment on sentence

Legislation Cited:

Children (Criminal Proceedings) Act 1987, s 6

Crimes Act 1900 (NSW), ss 35(2), 59

Crimes (Sentencing Procedure) Act 1999, ss 21A(2)(d), 21A(2)(j), 44(2)

Cases Cited:

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

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Chong v R [2017] NSWCCA 185

Dellow v R [2020] NSWCCA 301

Donald (a pseudonym) v The Queen [2021] NSWCCA 198

Egan v R [2017] NSWCCA 206

Grant v R [2014] NSWCCA 67

Howard v R [2019] NSWCCA 109

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

Prince v R [2020] NSWCCA 268

R v AN [2005] NSWCCA 239

R v Dalton [2004] NSWSC 446

R v Hearne [2001] NSWCCA 37; 124 A Crim R 451

R v Speechley [2012] NSWCCA 130; 222 A Crim R 175

Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353

TF v R [2020] NSWCCA 248

Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318; (2014) 247 A Crim R 272

Tuncbilek v R [2020] NSWCCA 30

Wood v R [2019] NSWCCA 309

Yildiz v R [2020] NSWCCA 69

Category:

Principal judgment

Parties:

CW (Applicant)
Regina (Respondent)

Representation:

Counsel:
R Rodger (Applicant)
C Curtis (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/00306945

Publication restriction:

Non-publication order in relation to the naming of the applicant and the victim.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

8 September 2020

Before:

O’Brien DCJ

File Number(s):

2019/00306945

Judgment

1. JOHNSON J: I agree with Hamill J.

2. ROTHMAN J: I agree with Hamill J.

3. HAMILL J: The applicant seeks leave to appeal from a sentence imposed by Judge O’Brien in the District Court sitting in Wollongong on 8 September 2020. The victim is a child and there is to be no publication of their name. To protect the identity of the child, I will refer to the applicant as CW and will not refer to the child’s mother by name.

4. CW pleaded guilty to one count of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW). Two offences of assault occasioning actual bodily harm, contrary to s 59 of the Crimes Act, were taken into account on a form 1.

5. The applicant was sentenced to imprisonment for a period of 4 years and 6 months commencing on 1 October 2019 and expiring on 31 March 2024. Judge O’Brien made a finding of special circumstances,[1] and set a non-parole period of 2 years and 10 months (around 62% of the total term), expiring on 31 July 2022.

   1. Crimes (Sentencing Procedure) Act 1999, s 44(2).

6. The applicant relies on two grounds of appeal:

1. The sentencing Judge failed to consider the impact of the applicant’s background on his moral culpability.

2. The sentencing Judge failed to take the applicant’s youth into account in a meaningful way in assessing the criminality and as a factor in mitigation.

7. I would grant leave but dismiss the appeal. The following are my reasons for those conclusions.

The facts of the offences

8. The applicant was a young and inexperienced father, 20 years old at the time of the offences, with mental health and drug issues, a history of violent offending and a turbulent home life.

9. He assaulted his infant daughter, who was not yet 12 weeks old, at some time prior to the detection of the child’s injuries in August 2019. The family were known to the Department of Family and Children Services (FACS) before the victim’s birth and were subject to monitoring due to concerns about drug use in the household. On 22 August 2019, the applicant attended a departmental office to discuss housing and FACS employees noticed bruising on the victim’s face. Police were notified and the child was removed for a full medical examination. The examination revealed multiple rib fractures in various stages of healing. These injuries constituted the grievous bodily harm alleged in the principal offence. The offence was described as a “rolled up charge” designed to encompass a number of occasions when the injuries were inflicted. The prosecution conceded it could not establish that the injuries occurred over more than two occasions. [2]

   2. Proceedings on Sentence (‘POS’), 8 September 2022, pp 7; 17-22.

10. The first offence on the form 1 resulted in bruising under the right eye and a bruise under the infant’s left forehead. These injuries were caused by two separate applications of blunt force.

11. The second offence on the form 1 caused “a buckle fracture” to the victim’s right wrist and arose from the applicant “forcefully grabbing” her arm.

12. The timing of the bruising was able to be more precisely fixed than the fracture injuries because they were not visible during the preceding FACS visit. This meant that the bruises must have been inflicted at some time between 15 and 22 August 2019.

13. Police attended the applicant’s home on 26 August 2019 and made inquiries about the bruises. The applicant claimed the victim had hit their own head into a door frame when she threw her head back. That assertion was false. On 27 August 2019, a surveillance device was installed covertly in the home occupied by the applicant and the victim’s mother. The device captured various admissions including the applicant saying that he “karate chopped” and “squeezed” the victim’s ribs. On 28 August 2019 the applicant was interviewed at Wollongong Police station and made similar false statements to those he made two days earlier. The applicant was arrested on 1 October 2019 and has remained in custody since.

14. The proceedings on sentence were conducted on 8 September 2020. Judge O’Brien delivered ex tempore remarks on sentence later that day. The prosecution sentence bundle included an agreed statement of facts and the applicant’s criminal antecedents. The applicant tendered a psychologist’s report prepared by Ms Laura Durkin dated 4 September 2020.

Psychological Assessment

15. The applicant placed substantial reliance on Ms Durkin’s report in the sentencing proceedings and the parties made submissions to this Court based on the contents of the report and its relevance to the grounds of appeal.

16. Counsel for the applicant summarised some of the salient aspects of the report in her written submissions:

“(i) The applicant was raised in unstable circumstances where he was subjected to psychological and physical abuse by his caregivers which interfered with his educational performance and his ability to effectively attend to his studies and manifested as significant anger regulation issues since childhood;

(ii) ‘His young age is acknowledged and hence maturity is a concern, particularly in terms of impulse control’; and

(iii) ‘It is likely that immaturity and difficulties with self-regulation as well as his positive beliefs about aggression additionally underpin his use of aggression’” [3]

3. Applicant Written Submissions (‘AWS’) at [7].

17. Ms Durkin did not provide an opinion as to the applicant’s risk of reoffending although she said his “anxiety” “contributes to his risk for offending”. [4]

    4. Laura Durkin, Psychological Assessment Report, p 16.

18. The applicant’s difficulties in fulfilling the role of a parent arose out of his own childhood of abuse, neglect and rejection. These were identified in the report as factors contributing to the offending:

“Effectively [CW] believed he was performing the functions of parenthood adequately and appropriately. While his basic understanding of his daughter's needs, or at least his knowledge of such, is considered positive, it is evident there is an issue with [CW’s] parenting capacity given the current charges. It is suggested that he would have struggled with child rearing, at least to some degree, and that his understanding of how to handle his child is at least impaired. Specifically, it is considered possible that he became easily frustrated with the child given his general volatility and that would be consistent with his triggers for anger, in particular feeling helpless when he cannot control a situation and successfully support someone as he hopes to.”[5]

5. Laura Durkin, Psychological Assessment Report, p 9 at [25].

19. After discussing the applicant’s criminal history, his “consistent contact” with the police since 2014, and his breaches of bonds, apprehended violence orders (AVO’s) and failures to appear, Ms Durkin wrote:

“It does not appear that [CW] has responded well to the sanctions placed on him and so being charged and convicted has not resulted in a change in his behaviour. His young age is acknowledged and hence maturity is a concern, particularly in terms of impulse control, but it is noted also that [CW] appears to have positive views about the use of violence, including that he is a hero who can use all available strategies, including aggression, to resolve the problems he and others are faced with. Other risk factors in [CW’s] case are the lack of prosocial support, his history of engagement in antisocial conduct and boundary pushing behaviour and substance abuse and dependence.” [6]

6. Laura Durkin, Psychological Assessment Report, p 10.

20. As to the applicant’s “anger regulation issues” Ms Durkin went on:

“[CW] described significant anger regulation issues, which he has experienced since he was a child. As noted he was diagnosed with ODD in his late childhood, which is consistent with his difficulties in this domain. [CW] advised that he would frequently engage in fights and seemingly provoke them at times, although, to his mind, his engagement in ‘drama’ is simply ‘bad luck’. He does not appear to have a clear understanding of his level of control over his anger or what triggers it. However, after some discussion, [CW’s] account indicates that he enjoys being perceived as a ‘hero’ as this helps him moderate the negative beliefs he has about himself and the misbehaviour he has engaged in. Effectively, positioning himself as a ‘hero’ supports him in maintaining a somewhat positive self-image. His desire to help and protect others has contributed to his aggressive response, such as in the case of the 2016 conviction for assault occasioning actual bodily harm in which he claimed to have been trying to support a friend who was a ‘whimp’ and unable to address an issue without help. However, he noted also that he also struggles to control his reactions when he is feeling hopeless about his ability to assist someone. For instance, as noted, he said that a feeling of hopelessness and an inability to support his most recent partner with her mental health issues motivated him to ultimately use violence in that relationship. [CW] does not consider himself an aggressive person, seemingly because he has rationalized his use of violence, but it is evident this is an area of significant concern for him, particularly given the offending in this case.” [7]

7. Laura Durkin, Psychological Assessment Report, p 12.

21. Ms Durkin emphasised the applicant’s immaturity, his lack of insight and understanding and offered an opinion on the role of unequipped, immature parenting in the commission of the offences:

“After some discussion with [CW] it became evident that his lack of insight about how to care for an infant has played a significant role in his offending in this case. Indeed, he suggested that he was unaware that, for example, holding his daughter by the wrists could cause her injury. Further, given his account of his triggers for violence, it is possible that feelings of hopelessness and being overwhelmed and stressed by the parenting role has contributed to the offending and in particular [CW] using more force that he intended when caring for his daughter. He could not confirm that theory.” [8]

8. Laura Durkin, Psychological Assessment Report, p 12.

22. The applicant’s resort to violence as a “maladaptive coping tool” and the dual contribution of this trait and a troubled background resulting in poor parenting skills in the subject offending was canvassed as follows:

“47. [CW] was raised in unstable circumstances, having been subjected to psychological and physical abuse by his caregivers who he claimed also ostracized him in the family. He appears to have internalized the negative feedback offered by his caregivers, in particular that he was a troublesome and problematic child who was dysfunctional and unwanted. In his development, [CW] acted out his distress about his challenging home situation, often resorting to violence, which resulted in him being diagnosed with ODD. He was also apparently diagnosed with ADHD and prescribed Ritalin, but that treatment was reportedly ineffective and [CW] apparently remained an impulsive, aggressive, reckless and risk-taking young person. He came into contact with the criminal justice system early in his life as a function of his inability to effectively regulate himself and he has consistently offended since, showing no notable improvement in his challenging, violent, behaviour in response to punishment. In part, it seems that his failure to respond to intervention is a reflection of the importance of this maladaptive coping tool aggression to [CW] as well as the extent of his difficulties self-regulating and his distortions about violence.

48.[CW] has formed the belief that, to redeem himself for his historically poor behaviour and improve his negative self-image, he needs to be overly invested and responsible to the people around him. Effectively, this strategy improves [CW’s] self-worth, as he believes he is capable and competent and acceptable, which, is entirely in contrast to the messages he received from caregivers in his childhood and adolescence. This has manifest in many ways, with [CW] stating that he has long tried to support, guide and provide for his peers and partners. However, when he does not believe he is being successful in assisting someone and they are not improving and benefitting from his input, he is apparently quickly frustrated as his self-esteem is contingent on being helpful and right. That threat to his source of self-worth causes escalating anger and given his difficulties generally regulating himself, [CW] is prone in such circumstances to respond with violence. As he also maintains cognitive distortions about the use of aggression, he is likely primed to resort to such as a maladaptive means of regaining control over his situation and the anxiety generated by his negative self-evaluation. It [is] evident that this line of thinking influenced [CW’s] offending against his former partner, but it is also suggested that his offending against his daughter was also informed by these distortions. In the case of the latter offending, it is also noted that [CW] is a young man who, in addition to a range of personal problems, lacks an understanding of how to raise a child and while he has some insight, it is insufficient. Thus, his difficulties regulating his anger but also a lack of education about safe parenting practices appears to have contributed to the offences against his daughter.” [9]

9. Laura Durkin, Psychological Assessment Report, pp 14-15.

23. The applicant’s resort to violence as a solution was an ongoing concern, and Ms Durkin noted his report of conflicts with other inmates:

“During that time [CW] has reportedly experienced conflict with other inmates concerning the nature of his charges. He said that he has ‘had to pull a few people up’ because he was worried about a serious physical assault occurring should he not address the issue. He advised that, in his mind, the problem has now been resolved and he denied having any ongoing concerns, including for his safety.” [10]

Proceedings on Sentence

10. Laura Durkin, Psychological Assessment Report, p 3.

Bugmy Principles

24. The applicant’s trial counsel raised the application of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 in both written and oral submissions on sentence:

“The Crown did not make any submission in regards to what I have put in writing about the applicability of the High Court case of Bugmy v The Queen [2013] HCA 37. This was not a case of alcohol or drug exposure but in my submission there is nonetheless a childhood that involved neglect, abuse and just a lack of general care or parental care that saw a primary age child make contact with the youth helpline and a young teenager finding themselves in a position where leaving home was more desirable than staying at home and then bouncing himself between a father who did not care too much either and back to home where he was made to feel unwelcome. It is a factor, in my submission, that does have some bearing when your Honour is considering the matter today.” [11]

11. POS, 8 September 2020, p 14.

25. The applicant’s trial counsel canvassed his early years of neglect and abuse, citing the well-known remarks in the joint judgment in Bugmy v The Queen at [43] before concluding:

“29. Ms Durkin opined that the offender’s distortions in thinking likely contributed to his offending. It is submitted that the offender's background of exposure to negativity, violence and general lack of support at home is likely a direct cause of his own trajectory towards drug use and offending including the present offences. In that context the offender's moral culpability should be assessed as less.

30. Furthermore, it is apparent that the offender's experiences as a child have resulted in him experiencing persistent feelings of anxiety which likely contributed to his offending. The existence of that mental health condition further reduces his moral culpability relative to others without such a condition.” [12]

12. Defence written submissions (DWS) at [29]-[30].

26. The Prosecutor did not address the issue of the offender’s moral culpability in light of his deprived background, or the application of Bugmy principles explicitly.

Youth of the offender

27. The applicant’s written submissions on sentence relied on the opinions of Ms Durkin extracted above as follows:

“13. The offender's history, discussed further below, has seen him unable to control his emotions in times of stress and prone to violent outbursts when frustrated. It would appear that the offender's relationship with the child's mother was strained and that they argued regularly. The experience of emotional strain was likely compounded by the demands of parenthood. Given the location of the injuries and the medical opinion as to the likely cause, it is open to the court to find that the injuries were likely the result of the offender having become frustrated and him not controlling his anger leading to his handling the victim in an aggressive and forceful way.”[13]

13. DWS at [13].

28. The prosecution disputed these submissions and focused on deliberateness of the applicant’s conduct, evidenced by the admissions he made while he was under covert surveillance:

“The general observations is, and this is not to be taken as any criticism of the psychologist, but when one reads this and the description of this offending one would be mistaken for thinking this is a case of a man who was ignorant in the ways of caring for children and had failed to take care in relation to this child.

In this report your Honour will see when speaking of the acts of physical violence against his partner there is a reference to aggression and problems with aggression but when speaking or when the author discusses the child the language is of being ill equipped to care for the child and language such as that. The point that the Crown makes is quite simply this and it may be uncontentious but this is not a case, this is very far from a case, of a person who has failed to take care, who has accidentally inflicted injuries upon a child. This is a case of a deliberate application of force to the child being, at the very least, reckless as to bodily harm being occasioned. It is not a case of someone who did not know how to look after a child or failed to take care. I may be stating the obvious in that regard but the report is very much couched in those terms and so it is something that it worth emphasizing.

Just to take your Honour to a couple of passages as to what I am referring to, if your Honour has the defence report of Ms Durkin at p 9 at the top of the page, this is a reference to why he was violent towards his partner and your Honour will see towards the end of that paragraph there are discussions about how he felt incapable of managing behaviour and would respond with physical and verbal aggression. That is the language that is used when referring to the partner but when it comes to discussing the child at p 12, first of all para 36, and this is towards the end of that paragraph, Ms Durkin hypothesises, "Given his account of triggers for violence it is possible that feelings of hopelessness and being overwhelmed and stressed by the parenting role has contributed to the offending and, in particular, [CW] using more force than he intended when caring for his daughter."

HIS HONOUR: I will just stop you there.

SCULLY: Yes, your Honour. Do we have different page numbering, your Honour?

HIS HONOUR: All right, I will need to take into account para 8 of the agreed facts when I consider that one.

SCULLY: Yes, your Honour.

HIS HONOUR: This is about the karate chop.

SCULLY: Yes, your Honour.

HIS HONOUR: And the squeezing.

SCULLY: Yes, your Honour, and at para 38 [CW] expressing concern his offending has been mischaracterised and he has been framed as the bad guy who deliberately hurt his child. This is not a case of someone who did not know how to hold a child and squeezed a bit too hard. This is a case of a deliberate infliction of force on more than one occasion on a vulnerable child.” [14]

14. POS, 8 September 2020, p 8.

29. The prosecution made the following submissions in respect of the applicant’s youth:

“In relation to youth it is accepted that he is young and of course that is something that is a significant matter for your Honour to take into account but one needs to put the matter into perspective. He is not a juvenile. I am stating the obvious. He was 20 at the time. Secondly, the authorities in relation to youth and its relevance, and I am talking about BJD and the other authorities referred to by my learned friend, they also make it clear that of course there comes a point when factors, such as, protection of the community and the seriousness of the offence will simply prevail in relation to the appropriate sentence that should be imposed.

Those authorities also make clear that there comes a point when the offending itself is offending of an adult nature and here we are talking about offending that occurred in the context of a father-daughter relationship. There cannot be a more important adult responsibility than caring for a child and it is in that context that this offending occurred and it is in that context that there was a very grave breach of trust and authority and this is not a case of a youth vandalising or committing acts of violence with a gang of friends or other crimes that are squarely related to youth. This is very adult offending and it is very serious offending so the Crown submission is that, yes, of course your Honour will take into account youth. He was only 20 but one needs to put into a perspective a little bit those submissions and the weight to be given to youth and I will come to the comparative cases but two of them involve a 21 year old and 22 year old and that did not - that is BJ and Tepania - which I will come to and that did not stop substantial sentences being imposed.” [15]

15. POS, 8 September 2020, p 9.

30. In reply, applicant’s trial counsel sought to clarify the relevance of the psychologist’s opinion as explaining the “loss of control” involved, rather than suggesting an “accidental” injury:

“My submission is that there is, it is conceded or accepted, that there is an account by [CW] whereby he believes, as he recounts his actions to the psychologist, that he was doing what he could to care for his child but the facts of the matter - facts of the case - is and the fact that his plea accounts for his acceptance that he has recklessly inflicted grievous bodily harm on his child and when your Honour looks at the report of Ms Durkin and her opinion as to the likely circumstances of that and to a degree it is largely opinion but it seems to be fairly safely based, in my submission, that this appears to be - it appears to have been a loss of control and anger and aggression and that is what she has said.

And she says he has a history of that type of behaviour and it is her opinion, and as I say I think it is an opinion that your Honour is entitled to have some regard to, that that appears to have been the trigger here; that he has lost control in whatever circumstance, that to the extent it is squeezing too hard, it is squeezing too hard as an act of aggression that is where I would think your Honour would be placing the action, so I do not place any reliance on any suggestion of accidental. As I say to your Honour I think such a submission would likely traverse the plea but in any event it is not consistent with the balance of the material and the expert material.” [16]

Remarks on Sentence

16. POS, 8 September 2020, p 11.

Objective seriousness; aggravating and mitigating factors

31. His Honour took into account the breach of trust arising from the applicant’s relationship with the child and the “quintessential” vulnerability of the infant victim. He also appreciated that the offence involved multiple acts. These matters elevated the seriousness of the offending. [17]

    17. Remarks on Sentence (‘ROS’), pp 7-8.

32. His Honour found that the offence was “impulsive” and the lack of planning was a mitigating feature. [18] He allowed a 25% discount for the utilitarian value of the guilty plea, but was not satisfied there was any other evidence of remorse. [19]

    18. ROS, p 8.

    19. ROS, pp 8, 9.

33. The sentencing Judge acknowledged the applicant’s youth and dysfunctional childhood and held:

“while very serious offending, it is not of a scale or of such severity, that this offender’s youth ought not to be taken into account as part of the instinctive synthesis …” [20]

20. ROS, pp 9-10.

34. Judge O’Brien found the applicant’s criminal history and the fact the crimes were committed while he was on conditional liberty were aggravating features. [21] Based on the applicant’s disregard for sanctions in the past, his Honour found his prospects of rehabilitation to be “guarded at best”. [22]

    21. Crimes Sentencing Procedure Act 1999 (NSW) ss 21A(2)(d), 21A(2)(j).

    22. ROS, p 9.

35. His Honour held that the offence fell at around the mid-range of objective seriousness for offences of this kind. The following passage provides insight into the approach the Judge took to the seriousness of the offending:

“I wish to say something about general principles concerning offences of violence. Offences of violence cover a wide range of criminal behaviour and they are all to be regarded very seriously by the Court and both general and specific deterrence are important considerations in any sentencing exercise. The nature of the injuries sustained by the victim, the degree of violence exhibited and the ferocity of any attack, along with the object and intention of the offender at the time that the violence is inflicted, are all matters to be taken into account in assessing the offending. Generally speaking the seriousness of an offence of violence will significantly depend upon the seriousness of the physical harm that is occasioned. It is not controversial to observe that the more serious the harm the more serious the offending. The injury inflicted is not however the only factor to which regard must be had. The nature of the attack and all of the surrounding circumstances are also highly relevant. Here the injuries to this ten week old baby involve multiple rib fractures, seven in total which occurred on more than one distinct occasion.

The Crown fairly concedes that it cannot establish beyond reasonable doubt that there were more than two occasions when the injuries were inflicted. The injuries were treated conservatively and the child, I am told, is expected to make a full recovery and the injuries themselves, it is agreed between the parties, fall at the lower end of the range of injuries that would form grievous bodily harm. If it were just the injuries to be considered then the offending would be much less serious than it plainly is.

There are a number of other factors that elevate the seriousness of the conduct in the circumstances which present in this case. Firstly, the child was aged approximately ten weeks. She was wholly dependent for her care and protection upon the offender and her mother. I accept that a ten week old child is a quintessential vulnerable victim.

Secondly, these offences occurred in the home of AB. That is somewhere where the community would legitimately expect that she would be safe, secure and protected. Instead she was seriously assaulted by one of the two most important persons in her young life.

Thirdly, it flows from what I have just said that the offender abused his position of trust and authority, although I am mindful not to count twice these matters of aggravation. In my view the most appropriate descriptor of this matter of aggravation is as a breach of trust. That description appropriately recognises in a meaningful way, the special relationship between a parent and an infant child.

Fourthly, the offending involved multiple criminal acts. This is not a case of a single incident of harm being occasioned to the victim but rather of a series of acts.

As I have earlier noted part of my task is to assess the objective seriousness. I have finally concluded that the objective seriousness of this matter, the recklessly causing grievous bodily harm matter, falls at or about the mid-range of objective seriousness for offences of this type.

It is also necessary for the Court to have regard to the statutory, aggravating and mitigating factors to the extent that I have not already taken those into account. In terms of the aggravating factors and although not going to the objective seriousness of the offending the offender’s record of violence and the fact that he was subject to conditional liberty at the time are matters of aggravation in the overall sentencing exercise.

He has seven prior entries for offences of violence on his record, bearing in mind he is only 21 years of age. These are as both a juvenile and as an adult. The two community correction orders to which he was subject at the relevant time were also, it is to be observed, in respect of domestic violence offending.

The mitigating factors which I will have regard to is that the offending was unplanned. I accept that the most likely conclusion I would draw is that it was impulsive. I also note that he entered a plea of guilty.

It is relevant to note that this is yet another example of domestic violence offending, albeit not of the type that the Court typically sees. Nevertheless the description given to domestic violence by the Court of Criminal Appeal in the R v Edigarov [2001] 125 A Crim R 551 at 41, as conduct that is ‘brutal, cowardly and inexcusable’ has real application to the circumstances of this matter.” [23]

23. ROS, pp 6-7.

Applicant’s personal circumstances

36. The applicant was 20 at the time of the offending and it was his first time in custody. However, he had a history of violent offending, most of which was acquired when the applicant was a juvenile. The two most recent convictions were both offences involving domestic violence.

37. The applicant reported a childhood and early adolescence marred by violence, transience, and dysfunction:

“10. [CW] was raised in unstable circumstances. He advised that his father was largely absent from his life and [CW] knows little about him, including what makes him "no good". [CW]’s stepfather reportedly tried to encourage his biological father to be an involved parent but that was unsuccessful and between the ages of four and 13, [CW] and his biological father had no contact. [CW] described his mother as similarly disengaged and unsupportive. He said that she is a happy and generally helpful person to her friends and his siblings, but she never apparently established a bond with [CW]. He said that she would frequently yell at him and she failed to parent him effectively, even using psychologically abusive tactics in punishment and to gain his compliance. [CW] said that he never felt supported by his mother and that only worsened after his relationship with his stepfather began to breakdown.

11. According to [CW], he and his stepfather initially developed a connection and he said that their relationship was positive until his stepfather "got sick of me" when [CW] was approximately six years old. He could not recall why the dynamic in their relationship changed but [CW] seems to have concluded that some deficit in his character is the reason for his stepfather's rejection and he accepted blame for such, stating that he gave his stepfather "too many headaches". From [CW’s] mid-childhood onwards, his stepfather was apparently abusive towards him, such that he wouId verbally reprimand him by yelling and demeaning him and he was physically aggressive, including having often pushed [CW’s] nose and head into the wall, he would slap [CW] and he struck him, or threatened to strike him, with household implements, such as jug cords, spatulas and a belt. [CW] advised that such excessive and inappropriate discipline was apparently relatively frequent and generally occurred in response to minor issues, such as [CW] not cleaning his room, being a "nuisance" and because he "didn't listen". Further, [CW] believed his stepfather favoured his half-siblings -- as they were his biological children - and he was apparently increasingly ostracized from the family. Within that context, [CW] believes that neither his mother nor his stepfather effectively supported and parented him during his development and he was never apparently comfortable seeking support from them as a result.

12.In [CW’s] primary school years he reportedly sought the assistance of the Kid's Help Line, but he received little support. Further, when his mother and stepfather found a copy of the number in [CW’s] possession, they apparently became distressed and accused him of failing to appreciate the support they offered. [CW] noted that his maternal aunt and grandmother were aware of the abuse he experienced but offered no meaningful support or assistance to him during bis childhood years. Given the hardship and challenges he was being exposed to and the lack of help available to him, [CW] advised that he began absconding from the family home to avoid his family and the abuse and when he was 13 years old he reportedly moved to live with his biological father. That arrangement reportedly lasted a month because [CW] experienced problems with his half-siblings and his stepmother accused him of being a "bad influence'' on her children. He, again, reportedly felt like an outsider in the family. [CW] lived with friends and his maternal grandmother intermittently thereafter and when he was l6 years old he secured accommodation in a refuge. When he was 17 years old, he reportedly left that accommodation and was in between residences so asked to stay with his mother and stepfather while he established himself. He said that they allowed him to stay in the family home but [CW] advised that they regularly pressured him to leave and conflict arose.

13. [CW] was transient for much of his adolescence. He was sent to juvenile detention for periods after leaving his mother and stepfather's home and he resided with a girlfriend's parents for a time. However, it was not until recently tht he secured a Department of Housing residence. He relinquished that property because the area [in which] he was living was unsafe with crime and drug use reportedly rife, and he moved to reside with another girlfriend and her father. That situation was reportedly unstable, and he ultimately secured a private rental. [CW] noted that he has struggled to find appropriate accommodation over the years and while it is positive that he has been in a position to secure a private rental, he said that he was taken advantage of by some of his landlords and he is typically renting sub-standard properties. He advised that he would require assistance with housing in the future.

14. [CW] said that he has had limited and generally intermittent contact with his family of origin since his late adolescence and they are not currently supportive of him. His maternal grandmother was apparently his greatest support historically, but they do not have consistent contact now.” [24]

24. Laura Durkin, Psychological Assessment Report, pp 4-6.

38. There was also a history of attempts at self-harm:

“42. Between 15 and 17 years old, he apparently made a number of suicide attempts by overdose and he said that he has also engaged in para-suicidal behaviour, but these behaviours do not seem to have occurred in the context of a depressive episode.”[25]

25. Laura Durkin, Psychological Assessment Report, p 14 at [42].

39. Judge O’Brien had regard to the offender’s troubled upbringing and diagnosed disorders. His Honour found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 based on the applicant’s youth, drug issues, compromised mental health and the fact it would be his first time in custody.

40. As to the applicant’s personal circumstances and background, his Honour said:

“The offender is aged 21, he was 20 at the time. He had a dysfunctional and disadvantaged upbringing. His schooling was compromised. He left home at the age of 13 and had a generally transient lifestyle thereafter living in various homes with friends and family members and a number of youth refuges. He told Ms Durkin that he commended to use cannabis at the age of nine years and that he then graduated to the use of other illicit substances. He has tried other drugs but cannabis appears to be the drug with which he has the principal issue in his life.

As a child he was diagnosed with attention deficit hyperactivity disorder and oppositional defiance disorder and that all occurred at the age of ten. He was prescribed some mediation but was generally non compliant with it. He is currently said to suffer from a generalised anxiety disorder. As I earlier noted he has a violent history. He is easy to anger, has difficulty with self-regulation and is prone to act violently when placed in circumstances of stress.

It is not controversial to observe that children and particularly infants can be the cause of stress in the lives of their parents. Here, this father, was completely ill equipped to handle that stress and as a consequence he committed serious crimes. He told Ms Durkin, on page 9 of her report at about point 8, that he believed he was performing the functions of parenthood adequately and appropriately. He could not be more mistaken, and this expressed view by him is a clear indication of his distorted cognition. He has limited, if any, insight into his offending. He is immature and other than for his plea of guilty there does not appear to be any evidence of remorse. Given his history I am of the view that his prospects of rehabilitation are guarded at best, noting as Ms Durkin has in her report, that sanctions upon him in the past have failed to engender any positive change. That being observed I note that he is still young. Youth does not necessarily lead to a reduced sentence. The more serious the offending the less likely that the need for rehabilitation in young offenders will outweigh the need for retribution, punishment and general deterrence. Here, while very serious offending, it is not of a scale or of such a severity, that this offender’s youth ought not to be taken into account as part of the instinctive synthesis and I propose to do so.

I have been asked to make a finding of special circumstances. Such a finding is a discretionary finding of fact that permits an adjustment downwards of the non parole period. It does not authorise an increase in the term of any sentence. The primary consideration should be the length of the minimum period of actual incarceration that is required to encompass the full range of issues relevant on sentence. Notwithstanding the existence of special circumstances a Court is not permitted to reduce the non parole period below what is necessary to punish the offender and to act as a deterrent to him and others. A finding of special circumstances may be made where an offender requires substantial help to overcome drug or alcohol addictions as the case may be, or where there is a demonstrated need for continuing assistance in the community over an extended period. An offender’s first time in custody may also warrant a finding of special circumstances typically in combination with other factors. Youth may also ground such a finding.

I have concluded that a finding of special circumstances should be made in this matter for the following reasons that should be viewed in combination. It is my view that the offender will require an extended period of supervision in the community upon his release from custody to ensure that he is best placed to readjust to community life and to ensure, as best the Court can, that his ongoing needs for treatment in respect of his mental health and in respect of drug rehabilitation are met. I have also had regard to the fact that this is his first time in custody and to his young age.” [26]

26. ROS, pp 9-10.

41. At the heart of the arguments under both grounds in the present appeal is the failure of the sentencing Judge to make express reference to the applicant’s moral culpability and the impact of his youth, and personal history of dysfunction, on that issue.

The grounds of appeal

42. The grounds of appeal raise similar and related issues. Counsel for the applicant presented the applicant’s arguments succinctly and convincingly, and with a minimum of duplication. Each of the grounds require the Court to consider whether, the extent to which, and how, the sentencing Judge took into account the compellingly sad personal circumstances of the applicant. Ground 1 was directed to his dysfunctional childhood and its impact on his moral culpability while ground 2 was concerned with his youth and immaturity and the extent to which it affected, or mitigated, a proper assessment of his criminality.

43. The essence of the applicant’s argument is distilled in the following submission made on the hearing of the appeal:

“The difficulty in this matter is that if there’s no reference by the sentencing judge to moral culpability with reference to either youth or Bugmy principles. And I’m not suggesting the word “Bugmy” needs to be used. The manner in which the sentencing judge took those matters into account remains unclear. It’s unclear as to whether he was taking them into account in the manner suggested at para 115 of Donald, that is that the child [sic] deprivation has exacerbated the importance of protecting the community rather than ameliorating moral culpability. In relation to youth it’s unclear similarly because of the portions of the remarks on sentence that I’ve taken your Honours to already, whether his Honour was finding youth as a matter that required the contemplation of whether moral culpability was lessened, or whether it is a factor that his Honour took into account as having committed so many violent offences by the age of 21 which is suggestive in my submission that it was not taken into account in relation to lessening of moral culpability.” [27]

Ground 1: The sentencing Judge failed to consider the impact of the applicant’s background on his moral culpability

27. Appeal Tcpt, 22 October 2021, p 6.

44. The applicant submitted that Judge O’Brien’s failure to refer to the impact of his dysfunctional and disrupted childhood in the context of an assessment of his moral culpability was indicative of a legal error infecting the sentence. Reliance was placed on the observations of the High Court in Bugmy v The Queen and the comments of Rothman J in TF v R [2020] NSWCCA 248 at [81]:

“If the applicant’s disadvantage or deprivation as a child is to be taken into account by the sentencing judge, then the sentencing judge is required, either expressly or by inference, to make that clear.”

45. A related complaint was that the sentencing Judge failed to indicate that he was not persuaded the “Bugmy principles” applied. This argument assumes that those principles were not applied and was, again, based on the absence of any explicit reference to them or any finding of reduced moral culpability in the judgment. It was submitted that this resulted in procedural unfairness. The applicant referred to Chong v R [2017] NSWCCA 185 at [5]:

“ … claims of unfairness can arise in circumstances where the judge has made a finding of fact adverse to the offender, which was not sought by the prosecutor and which therefore might reasonably not have been anticipated by the offender. Similarly, where the judge, having led the offender to believe (the offender reasonably relying upon the belief) that no such finding would be made, then makes an adverse finding, it may be held that the sentencing was procedurally unfair”

46. The respondent argued that the sentencing Judge’s remarks, at least implicitly, made it clear that the applicant’s background and the psychologist’s opinions were taken into account in an appropriate and principled manner. The sentencing Judge referred to the applicant’s background and personal difficulties and to the contents of Ms Durkin’s report. It was submitted that no further comment was required in the circumstances and that the evidence was taken into account in an appropriate way.

47. As to the allegation of procedural unfairness, the respondent submitted that the authorities were concerned with the situation where a sentencing judge “gives a positive indication that he or she is disposed to adopt a particular argument or approach”[28] and then finds against the applicant. Reliance was placed on Toole and Toole v R. [29] The respondent submitted that there was no relevant unfairness because the Judge did not give any indication that he was minded to make a favourable finding in relation to the issue.

    28. Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318; (2014) 247 A Crim R 272 at [45].

    29. Respondent Written Submissions (‘RWS’) at [29].

48. I accept that it would have been preferable for the sentencing Judge to have engaged more clearly with the principles reiterated by the High Court in Bugmy v The Queen and to identify the extent to which he took the applicant’s childhood dysfunction and history of dislocation and deprivation into account in evaluating his moral culpability. However, the sentencing judgment was delivered ex tempore and the ground must be determined by undertaking “a fair reading of the reasons as a whole”[30] without engaging in an overly critical textual analysis. [31]

    30. Grant v R [2014] NSWCCA 67 at [38].

    31. Tuncbilek v R [2020] NSWCCA 30 at [57]; R v Speechley [2012] NSWCCA 130; 222 A Crim R 175 at [34].

49. In Prince v R [2020] NSWCCA 268 Beech-Jones J said at [47]:

“In the end result, the real complaint of the applicant simply concerns the absence of any express reference to the phrase ‘moral culpability’ in the sentencing judgment. However, in the context of an offender presenting with a deprived background of the kind contemplated in Bugmy, then provided that the various ‘conflicting purposes of punishment’ (Bugmy at [44]) are properly addressed in light of the findings made about that background, it is not necessary for a sentencing judge to expressly use the phrase ‘moral culpability’ (see Egan v Regina [2017] NSWCCA 206 at [37]). Ultimately, it is the application of proper principle, and not the use of appropriate labels, that matters.”

50. In referring to this passage, I do not suggest that counsel’s submissions in the present application was concerned with the use of appropriate labels. I accept the force in the complaint as it was articulated both in written submissions and on the hearing of the appeal. However, a fair reading of the whole of the ex tempore judgment leaves me with little doubt that Judge O’Brien accepted the evidence of the applicant’s childhood and gave it appropriate weight, albeit that it had the capacity both to reduce moral culpability while, at the same time, increase concerns as to the protection of the community.

51. The remarks of Rothman J in Donald (a pseudonym) v The Queen [2021] NSWCCA 198 are also apposite:

“115 The childhood deprivation of the applicant was a factor to which the learned sentencing judge referred. It is unnecessary, in those circumstances, to elaborate beyond noting that the childhood deprivation has been taken into account. Of course, that childhood deprivation may point in more than one direction: it may ameliorate moral culpability; and it may exacerbate the importance of protecting the community.

…

118 Further, the learned sentencing judge’s reference to the report of the psychologist and the childhood deprivation and sexual assault suggests that each of them was dealt with appropriately. Having determined the issues that are to be considered in fixing a sentence, the sentencing judge does not commit identifiable error by not explaining, at length, how each is to be factored into the synthesis that is then undertaken.

119 Indeed, too detailed an analysis of the effect of each of the factors may, in some instances, lead to a staged sentencing process, which is to be avoided.”

52. See also Egan v R [2017] NSWCCA 206 at [37], Wood v R [2019] NSWCCA 309 at [123] (Hoeben CJ at CL) and Dellow v R [2020] NSWCCA 301.

53. The sentencing Judge was cognizant of the material in the report and its relevance to various aspects of punishment. His Honour referred to the applicant’s background at some length before referring to the impulsivity of the offending and noting the applicant’s lack of self-control and self-regulation, and his propensity to respond violently. While couched in less refined language, this reflected the competing considerations discussed in Bugmy v The Queen:

“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.”[32]

32. Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44].

54. I am unable to accept the applicant’s submission that the judgment suggests that the sentencing Judge took the applicant’s dysfunctional background into account as a risk “exacerbating feature going to protection of the community” rather than to ameliorate his moral culpability. [33] A fair reading suggests that the matter was taken into account in relation to both of those sentencing considerations. I would add that the sentence actually imposed, given the severity of the assaults on a helpless infant, also points in that direction.

    33. Appeal Tcpt, 22 October 2021, pp 5-6.

55. The complaint concerning procedural fairness does not arise. I would reject ground 1.

Ground 2: The sentencing Judge failed to take the applicant’s youth into account in a meaningful way in assessing the criminality and as a factor in mitigation

56. In a sense, ground 2 was argued either as an alternative to ground 1, or as complementary to it. It was submitted that, if Judge O’Brien balanced the contradictory forces discussed in Bugmy v The Queen at [44],[34] and found that moral culpability was diminished but that community protection was the preeminent consideration, such a finding would disclose a superficial or lack of engagement with the principles applicable to young offenders. [35]

    34. Reproduced above at [53].

    35. Appeal Tcpt, p 5-6.

57. The applicant raised two matters in the sentencing judgment which were said to indicate that the factors of immaturity and deprivation were not taken into account in an appropriate manner, that is to reduce objective gravity of the offence and/or to reduce the applicant’s moral culpability. [36]

    36. ROS, pp 8-9.

58. The first was a reference to prior offences of violence, “bearing in mind he is only 21 years of age”. [37] The second was the conflation of immaturity and a lack of remorse said to be exposed by the following statement:

“He is immature and other than for his plea of guilty there does not appear to be any evidence of remorse.” [38]

37. ROS, p 8.

38. ROS, p 9.

59. The respondent relied on similar arguments to those made in response to Ground 1. It submitted that there is no requirement for a sentencing Judge to make a separate finding as to the mitigatory impact of youth or immaturity on culpability where it has clearly been adverted to, particularly in the delivery of ex tempore remarks on sentence. It was suggested that given the applicant’s history of violence, the fact that he was no longer a juvenile, and the gravity of the offending conduct, the sentencing Judge’s approach to the applicant’s youth might be viewed as generous, rather than deficient. [39]

    39. RWS at [42].

60. There was some argument between the parties as to whether the offending “manifest[ed] the immaturity associated with young offenders” required to invoke the relevant principles and warrant reduction in sentence. [40] This dispute arose out of differing interpretations of Ms Durkin’s report, or by placing emphasis on different parts of that report. Most of the relevant portions of the report have been reproduced above.

    40. Cf Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353 at [57].

61. There was no real issue between the parties as to the appropriate principles to be applied when a young and immature offender is being sentenced. They were discussed, in not dissimilar factual circumstances, by Adams J R v Dalton [2004] NSWSC 446:

“17 The relative youth of the offender is a most significant factor in the assessment of an appropriate sentence, and points to the great importance of rehabilitation in this particular case: though not a child at the time of the offence, he was very far from a mature adult. Objectively, the offence was a very serious one, but I am quite satisfied that the offender did not realise the serious potential for grave injury that his actions caused, though he was well aware that his actions were criminal assaults, quite capable of causing painful injuries, to which he was apparently angrily indifferent. I think that he still feels that the child’s death at his hands was accidental; this might merely be a mark of the offender's relative immaturity.”

62. In submitting that the sentencing Judge failed to take the applicant’s youth into account as a matter reducing his moral culpability and the importance of retribution in the sentencing exercise, the applicant relied on the judgment of Hodgson JA in BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379, which was endorsed by Rothman J in Yildiz v R [2020] NSWCCA 69 at [58]:

“[3] The relevance of the youth of an offender to sentencing has been extensively discussed in many cases, including KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 (referred to by Johnson J) and cases referred to in that case. I accept the principles stated in KT at [22] – [26] (quoted by Johnson J at par [74] of his judgment). However, I wish to make three points concerning these principles.

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

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

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

[7] I do not suggest that, in all the circumstances of this case, the youth of the offender should be given such weight as to make a large difference in the ultimate outcome; but I would give it some weight, and on that basis favour a substituted sentence a little shorter than that proposed by Johnson J.”

63. There is no “bright line” – that is, an offender’s 18^th birthday – that determines the application of sentencing principles relating to young offenders. [41] However, an offender who is a child at law is subject to the principles set out in s 6 of the Children (Criminal Proceedings) Act 1987, while an adult offender is not. Nevertheless, as Hodgson JA made clear in the passage extracted at [62] above, chronological age does not dictate maturity. In Howard v R [2019] NSWCCA 109 at [13] Fullerton J confirmed that it is:

“well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person's mid-20’s.”

41. Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353 at [55].

64. In R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 the Court stated the general proposition in the following terms at [25]:

“Where that immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years.”

65. The relative importance of youth as a factor in sentencing is determined by the circumstances of the individual case. [42] Consideration must be given to the evidence of the offender’s “mental state and circumstances of the offender at the time of offending”. [43] The nature of the offending may have some relevance, including whether the offender “has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity” or “engaged in ‘adult behaviour’’, and whether it involved planning and premeditation. [44] Precisely what constitutes “adult behaviour” in this context is difficult to define as the judgments in BP v R, KT v R and R v Hearne demonstrate. However, it is clear that:

“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]).”[45]

42. Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353

43. R v AN [2005] NSWCCA 239 at [57]; Yildiz v R at [60]-[61]

44. See, for example, KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [25]; R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 at [28].

45. KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [23].

66. None of the preceding analysis is ground-breaking or new. The principles are entrenched and well known. I am unable to accept that Judge O’Brien was not familiar with them or failed to apply them. His Honour’s judgment suggests the opposite. He accepted the applicant was immature and that the offence was impulsive. He set out parts of Ms Durkin’s report. His Honour did not discount the relevance of the applicant’s youth and immaturity by reference to the serious nature of the offending. This is clear from the remark (earlier referred to) that:

“… while very serious offending, it is not of a scale or of such severity that this offenders youth ought not to be taken into account as part of the instinctive synthesis and I propose to do so.” [46]

46. ROS, p 10.

67. This observation demonstrates that the dispute that played out at first instance, and which is described at [27]-[30] above was resolved in the applicant’s favour.

68. I do not accept that the parts of the judgment relied on by the applicant and set out at [58] above suggest that his Honour misapplied the principles or failed to take into account the applicant’s youth and immaturity “in a meaningful way”. Nor am I satisfied that the sentencing Judge disregarded the issue in assessing the objective criminality of the offence. As with ground 1, the sentence imposed on the applicant does not support the proposition contended for and the language employed in the judgment must be considered in light of the fact that the sentence was imposed, and judgment delivered, on the same day the case was argued.

69. For those reasons, I am unable to uphold ground 2.

Conclusion and orders

70. The sentence imposed on the applicant was a stern one in view of his age and the evidence contained in the psychologist’s report. However, I am satisfied that the sentencing Judge took those matters into account in accordance with proper principle and am unable to uphold either of the grounds contending otherwise. The criminality involved repeated assaults on a helpless infant and a stern sentence was inevitable.

71. I would make the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

**********

Endnotes

Decision last updated: 11 March 2022