DFS v Regina

[2007] NSWCCA 77

New South Wales
Court of Criminal Appeal

CITATION:	DFS v Regina [2007] NSWCCA 77 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	20 March 2007
JUDGMENT DATE:	27 March 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Barr J at 2; Hoeben J at 25
DECISION:	1. Leave to appeal granted. 2. Appeal dismissed.
CATCHWORDS:	Criminal law - sentencing - whether sentences excessive compared with those imposed on co-offenders - whether sentences excessive
PARTIES:	DFS, Regina
FILE NUMBER(S):	CCA 2006/2822
COUNSEL:	T S Corish V Lydiard
SOLICITORS:	S Kavanagh SE O'Connor
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/31/0438
LOWER COURT JUDICIAL OFFICER:	Coolahan DCJ

IN THE COURT OF
CRIMINAL APPEAL

2006/2822

McCLELLAN CJ at CL
BARR J
HOEBEN J

27 MARCH 2007
DFS v REGINA
Judgment

1 McCLELLAN CJ at CL : I agree with Barr J.

2 BARR J : The applicant, whom I shall call DFS, seeks leave to appeal against sentences imposed in the District Court. Having pleaded guilty in the Children’s Court the applicant was committed to the District Court for sentence. It was convenient for the Crown to restate the several charges and two Indictments were presented, each accompanied by a schedule under the provisions of s32 Crimes (Sentencing Procedure) Act . The first Indictment was as follows -

(1) On or about 30 May 2004 at Cooks Hill the applicant stole a motor vehicle namely a Nissan Coupe XIP 909 the property of Scott McKenzie.

(2) On 31 May 2004 at Warners Bay the applicant broke and entered the BP Service Station at Warners Bay and committed a serious indictable offence therein namely stole cigarettes, money and food the property of BP Service Station, in circumstances of aggravation, namely that he was in company with other persons.

(3) On 31 May 2004 at Adamstown the applicant while in company with other persons, assaulted Donna Parkinson with the intent to take a motor vehicle Subaru WRX AFC 39P, and took and drove it without the consent of the owner Janine Rowland.

(4) On 31 May 2004 at Tuggerah the applicant broke and entered `Footlocker' at Westfield Tuggerah Shopping Centre and committed a serious indictable offence therein namely he stole clothing and shoes the property of Footlocker Pty Ltd, in circumstances of aggravation, namely that he was in company with Kirk Crossley and Jarred Brown.
(5) On 31 May 2004 at Edgeworth Kirk Crossley and Jarred Brown robbed Katherine Slarks of certain property namely a handbag and its contents and the applicant knowing that they had committed that offence received and assisted them.

(6) On 31 May 2004 at Cardiff the applicant broke and entered the Bogas Service Station and committed a serious indictable offence therein namely stole a quantity of cash, cigarettes and a briefcase the property of Bogas Service Station in circumstances of aggravation namely that he was in company with Kirk Crossley and Jarred Brown.

(7) On 31 May 2004 at Cardiff Kirk Crossley and Jarred Brown demanded money from Christopher Carroll with the intent to steal that property from Christopher Carroll and the applicant knowing they had committed that offence received and assisted them.

3 The schedule accompanying the first Indictment listed three offences to be taken into account under the third count, the “ carjacking ” count, as it was called. The offences may be summarised thus -
(i) on 30 May 2004 the applicant deliberately drove the stolen Subaru into the car of a security guard at the Mater Hospital, reversed and rammed the guard’s vehicle a second time;
(ii) on 31 May 2004 the applicant drove whilst disqualified; and
(iii) on 31 May 2004 the applicant drove the stolen Commodore while pursued by the police, exceeding the speed limit, running red lights and generally driving dangerously.
4 The second Indictment was as follows -
(1) On 13 June 2004 at Kariong the applicant assaulted Terrance Roberts a law enforcement officer, not being a police officer, while in the execution of the officer's duty.
(2) On 30 June 2004 at Kariong the applicant assaulted Stephen Clissold a law enforcement officer, not being a police officer, while in the execution of the officer's duty.
(3) On 1 July 2004 at Kariong the applicant maliciously destroyed one Foxtel dish and receiver the property of Kariong Juvenile Justice Centre.

(4) On 5 July 2004 at Kariong the applicant assaulted Greg Jones a law enforcement officer, not being a police officer, while in the execution of the officer's duty.

(5) On 5 July 2004 at Kariong the applicant assaulted Mitchel Walsh a law enforcement officer, not being a police officer, while in the execution of the officer's duty.

(6) On 2 September 2004 at Kariong the applicant assaulted Erik Anthony Hansen a law enforcement officer, not being a police officer, while in the execution of the officer's duty and by the assault occasioned actual bodily harm.

(7) On 2 September 2004 at Kariong the applicant maliciously damaged by means of fire a bread bag, cloth, pillow case and carpet the property of Kariong Juvenile Justice Centre.

(8) On 18 September 2004 at Kariong the applicant assaulted Dominic Pedavoli a law enforcement officer, not being a police officer, while in the execution of the officer's duty.
(9) On 18 September 2004 at Kariong the applicant maliciously damaged a refrigerator, stove, lounge suites and telephone the property of Kariong Juvenile Justice Centre.

5 The schedule accompanying the second Indictment summarised thus an offence to be taken into account in sentencing for the eighth count -
On 18 September 2004 the applicant and another young person, while secured in a part of the Juvenile Justice Centre where they were being kept, began to damage property. Staff sought to intervene. The applicant wielded a steel pole, striking the shields and helmets used by those members of the staff and putting them in fear.
6 Coolahan DCJ sentenced the applicant as follows on the first Indictment -

Count 1 A non parole period of 12 months imprisonment to commence on 31 May 2004 and expire on 30 May 2005. A total term of 2 years imprisonment to expire on 30 May 2006.

Count 2 A non parole period of 2 years imprisonment to
commence 31 August 2004 and expire on 30 August 2006. A total term of 4 years imprisonment to expire on 30 August 2008.

Count 3 Taking into account the 3 matters on the Form 1, sentenced to a non parole period of 2 years imprisonment to commence on 30 November 2004 and expire on 29 November 2006. A total term of 4 years imprisonment to expire 29 November 2008. In respect of each offence on the Form 1 the offender is disqualified from driving for periods of 2 years each to be consecutive upon each other with the first to commence at the expiration of his current period of disqualification.

Count 4 A non parole period of 2 years imprisonment to commence 28 February 2005 and expire on 27 February 2007. A total term of 4 years imprisonment to expire 27 February 2009.

Count 5 Non parole period of 18 months to commence 31 May 2005 and expire 30 November 2006. A total term of 3 years imprisonment to expire 30 May 2008.

Count 6 A non parole period of 2 years imprisonment to commence 31 August 2005 and expire 30 August 2007. A total term of 4 years imprisonment to expire 30 August 2009.

Count 7 A fixed term of 6 months imprisonment to commence on 30 November 2005 and expire 29 May 2006.

7 On the second Indictment his Honour imposed the following sentences -

Counts 1-5,9 Concurrent fixed terms of imprisonment of 4 months to commence 31 August 2007 and expire 30 December 2007.

Count 6 A fixed term of 6 months imprisonment to commence 31 August 2007 and expire 29 February 2008.

Count 7 A fixed term of 7 months imprisonment to commence 31 August 2007 and expire 30 March 2008.

Count 8 Taking into account the matter on the Form 1, sentenced to a non parole period of 9 months imprisonment to commence on 31 August 2007 and expire on 30 May 2008. A total term of 2 years and 9 months to expire on 30 May 2010.


8 The total effective sentence imposed on the applicant was a term of six years imprisonment comprising a non-parole period of four years, dating from 31 May 2004 and expiring on 30 May 2008, and an additional term of two years.

9 During the events giving rise to the charges in the first Indictment the applicant was in the company of two other young men, Jarred Brown and Kirk Crossley. His Honour summarised the facts as follows -

On the evening of 30 May, Brown, together with Crossley and (the applicant) , were driving around in (the applicant’s) vehicle. At about 11.30pm they went to the Newcastle Mater hospital car park where they decided to steal a blue commodore sedan, registered number PUB-485. It had distinctive mag wheels. The vehicle had been parked in the car park earlier by the owner Mr Gary Agnew, who had driven to the hospital suffering from pneumonia. CCTV surveillance shows the boom gate of the car park being forced open and the Commodore being driven out. The mag wheels from the commodore were transferred to (the applicant’s) vehicle and the wheels from (the applicant’s) vehicle were put on the Commodore. All offenders then got into the Commodore, leaving (the applicant’s) vehicle in the car park. They drove the Commodore to the corner of Darby and Parry Streets, Cooks Hill, where it was set alight and destroyed.

These offences are contained in schedules relating to Brown and Crossley. For reasons that are unclear, it appears that (the applicant) was not charged in relation to stealing or the burning of the Commodore.

Having set fire to the Commodore, the offenders came upon a Nissan Silvia, registered number XIP-909, which was parked at the intersection of Darby and Parry Streets, Cooks Hill. It had been parked there earlier that day by Amy McKenzie, the daughter of the owner, Scott McKenzie. The offenders stole the Nissan Silvia by entering it and (the applicant) using a screwdriver to start it. This was in the early hours of the morning of 31 May 2004. [Count 1 on the first indictment]

The offence is set out on a schedule in the case of Brown but, in the case of both Crossley and (the applicant) , is represented by the first count in their respective indictments. The offence of car stealing pursuant to section 154 AA of the Act carries a maximum penalty of ten years imprisonment.

The offenders drove around in the Nissan Silvia until they came to Islington, where they saw a green Holden Astra, registered number AED-71B, parked in the driveway of the owner's home. One of the offenders smashed the driver's window in an attempt to steal the vehicle, but a neighbour was alerted and the offenders ran off , driving away in the Nissan Silvia. The attempted stealing of this vehicle is contained in schedules resalting to Brown and Crossley, but again it would appear that (the applicant) was not charged with any offence arising out of this incident.

At about 2.15 pm on 31 May 2004, the glass doors of the BP Service Station at Warners Bay were kicked in. (The applicant) later told investigating police that he had driven the Nissan Silvia to the service station and that the other offenders got out and broke into it. Approximately $100 in coins, $500 in cash and cigarettes to the value of $4,000 were taken. These offences are contained in schedules relating to Brown and Crossley. The activity forms the basis of count 2 in (the applicant’s) first indictment, that being a charge of aggravated break, enter and steal which, pursuant to section 112(2) of the Act, carries a maximum penalty of twenty years imprisonment and attracts a standard non-parole period of five years imprisonment. [Count 2 on the first indictment]

Having committed this offence, the offenders continued to drive around in the Nissan Silvia.

At about 3.00am on 31 May 2004, Janine Rowland and Donna Parkinson were sitting in a Subaru WRX sedan, registered AFC-39P, which was parked on the eastern side of Date Street, near the intersection of Glebe Road and Adamstown. The vehicle belonged to Ms Rowland, who was in the driver's seat. Ms Parkinson was in the passenger's seat.

As the offenders were driving around, they were looking for a car that had more horsepower. As Ms Parkinson was about to alight the vehicle, the offenders came upon it and decided that this was the type of vehicle they were after. The offenders stopped and got out of their vehicle. Brown was armed with a shifting spanner, which was about one foot in length. He approached the driver's side of the Subaru WRX. Crossley approached the passenger side of the vehicle.

Crossley jumped on the bonnet of the vehicle, leering through the windscreen at the two women inside. By this time the women had locked their doors, Crossley jumped off the bonnet of the car and began attempting to kick the passenger side window in. Brown hit the driver's side of the vehicle with a shifting spanner until it smashed. The door was then unlocked and opened.
Brown dragged Ms Rowland from the vehicle and she fell to the roadway. Her handbag was stolen. Brown got into the car and unlocked the passenger's side door. Crossley then dragged Ms Parkinson from the vehicle and knocked her to the ground. Her handbag was stolen.

Brown then got into the back seat and the other two offenders got into the front seat of the vehicle. The vehicle was then driven away.

In the case of Brown these events give rise to counts 3 and 4 on his indictment.... The events also give rise to matters contained in one of the schedules. The events form the basis of counts 2 and 3 on Crossley's indictment... There is also a further offence arising out of these matters which is contained in Crossely's schedule.

The events also give rise to count 3 in (the applicant’s) first indictment, that being a count of aggravated car jacking which, when dealt with according to law... carries a maximum penalty of fourteen years imprisonment and which attracts a standard non-parole period of five years imprisonment. [Count 3 on the first indictment]

As result of these offences, both Ms Rowland and Ms Parkinson sustained some injuries, as well as very significant emotional sequelae…

Shortly after the car jacking of Ms Rowland's Subaru WRX, the Nissan Silvia was taken to Fowler Street, Hamilton South, where it was set alight and destroyed. This activity gives rise to offences contained in schedules in the case of Brown and Crossley, although it would appear that (the applicant) was not charged with any offence arising out of that activity.

The stolen Subaru WRX was then driven to the Tuggerah Westfield Shopping Centre, where Brown had earlier left the stolen Ford station wagon, UEH-798. At about 4.15 am on 31 May 2004 Crossley drove that vehicle... the Ford station wagon, into the doors sealing the shopping centre complex and, as a result, extensive damage was occasioned. That car was closely followed by the stolen Subaru WRX. The Ford station wagon was driven though the front door of the Foot Locker store within the shopping complex, allowing the offenders to gain access thereto. The offenders entered the store and grabbed armfuls of clothing, hats, sports shoes and other small items. These were loaded into the Subaru WRX. Just over $10,000 worth of stock was stolen from the store.

As the offenders left the scene, the Ford station wagon sideswiped a flower shop, with damage being occasioned to the premises. This vehicle was then dumped.

These events give rise to count 5 in Brown's indictment... to count 4 in Crossley's indictment...and count 4 on the applicant's first indictment- which is a charge of aggravated break enter and steal , carrying a maximum penalty of twenty years imprisonment and attracting a standard non parole period of five years imprisonment. [Count 4 on the first indictment]

At about 5.20am that morning, Catherine Slarks attended the Andrew Nash Medical Clinic at 7 Arnott Street, Edgeworth, to begin work as a cleaner. After parking her car, Ms Slarks approached the clinic. She was carrying her bag on her right shoulder. She noticed two men in the car park area walking towards her. She began to run towards the main road. As she ran, she noticed a third man under the security spotlight about thirty metres away. She began screaming. She was pulled from behind, causing her to fall. She landed on her back and head. The two men whom she had earlier seen were now standing over her. One of the men ripped the bag from her shoulder and the two men fled and joined the third man. It was Brown and Crossley who knocked Ms Slarks to the ground and took her bag. The identity of the third person is not known. Ms Slark's handbag contained cash, a mobile phone and other personal items, including her purse.

These events give rise to count 6 on Brown's indictment, that being a charge of robbery in company... count 5 on Crossley's indictment, being an identical charge ...count 5 on (the applicant’s) first indictment, that being a charge of being an accessory after the fact of robbery in company, which carries a maximum penalty of fourteen years imprisonment. [Count 5 on the first indictment]

After robbing Ms Slarks, the offenders drove to the Bogas Service Station at Warners Bay. At about 5.30am, Mr Christopher Carroll, the owner of the business, was opening up. He unlocked and opened the shop, re-locking the front doors, and went around to the side of the building to open up the toilets. Whilst he was doing so he heard a car come into the service station. It was the stolen Subaru WRX.

The offenders got out of the vehicle and Crossley approached Carroll, punching him in the face hard enough to break his nose and knock him to the ground. Crossley demanded that Mr Carroll access the safe and threatened him with being shot, although it is conceded that the offenders did not actually possess a firearm. However, Mr Carroll saw the shape of the shifting spanner, which he thought may have been a gun. He was also threatened with being stabbed with a syringe if he tried to run away. It was brown who made the threats to shoot and stab Mr Carroll.

Mr Carroll was dragged to his feet; however, he saw an opportunity to escape and jumped over a fence and ran away. He was able to flag a passing car, the driver of which phoned the police. In the meantime, the offenders kicked in the front of the service station shop windows and stole cash and cigarettes and Mr Carroll's brief case. They decamped in the stolen Subaru WRX.

These events give rise to counts 7 and 8 on Brown's indictment and 6 and 7 on Crossley's indictment.

The events give rise to counts 6 and 7 on (the applicant’s) first indictment, they being offences of aggravated break enter and steal (which carries a maximum penalty of twenty years imprisonment and attracts a standard non parole period of five years.) and an offence of being accessory after the fact to demanding money with intent to steal in company, which latter offence carries a maximum penalty of five years imprisonment. [Counts 6 and 7 on the first indictment]

The stolen Subaru WRX was then driven to the vicinity of the Mater Hospital, where (the applicant) had earlier parked his own car. Here the clothes, shoes and other items stolen from the Foot Locker store, along with the handbags stolen earlier that morning, were transferred to (the applicant’s) vehicle. Whilst this was happening, a security guard from the hospital, Aaron Roapati, was patrolling the area in his car. He recognised the offenders' clothing and appearance from earlier security video footage and, as a result, approached them. By this time the transfer of the goods was complete and all offenders were in (the applicant’s) car. (The applicant) drove his car at the security guard's vehicle, colliding with it and pushing it out of the way, but damaged the front tyre guard of his own vehicle in the process. (The applicant) then drove away.

A short time later, (the applicant) stopped at a local mechanical shop to try to have the damage to his car repaired. The tyre guard was pushed in on the tyre. The mechanics at the garage had heard a police radio alert and, on seeing the goods in the back of (the applicant’s) vehicle, phoned police, who attended very quickly. When the offenders saw police coming, Brown decamped on foot and Crossley and (the applicant) got into (the applicant’s) vehicle and drove off. An extensive police pursuit ensued.

Crossley and (the applicant) were eventually stopped and arrested. However, before his arrest could be completed, Crossley jumped into a police vehicle and attempted to put it in motion. Police had to smash the police car window in order to effect Crossley's arrest.

These offences in the case of Crossley and (the applicant) give rise to offences on their schedules. [Form 1 matters]
10 After his arrest the applicant found himself at the Frank Baxter Juvenile Detention Centre at Kariong. The events that took place there were summarised by his Honour as follows -
At about 1.05pm on Sunday 13 June 2004, Terrence Roberts, an officer of the department of Juvenile Justice, was on duty in the kitchen area of the Stickland Unit that is part of the Frank Baxter Juvenile Detention Centre at Kariong. Officer Roberts and the offender were involved in cleaning up after lunch. The offender was talking to other detainees about certain evens said to have happened before his detention. The topic of conversation led to the comment being made by officers Britland and Roberts. The offender picked up a steel mop bucket of dirty water and threw the contents into the face of officer Roberts. The dirty water went all over Mr Roberts and went into his eyes and mouth. The offender then threw the steel mop bucket at Mr Roberts, striking him on the right knee. The offender was yelling at Roberts "Fucking old man, fuck you. I should smash you."
The offender was restrained by another youth worker and was removed from the area. This activity gives rise to count 1 on (the applicant’s) second indictment, which is an offence of assaulting a law enforcement officer, not being a police officer, whilst in the execution of the officer's duty. Pursuant to section 60A(1) of the Crimes Act 1900, it carries a maximum penalty of five years. [Count 1 on second indictment]
About 7.15 pm on Wednesday 30 June 2004, (the applicant) complained to Officer Peebles that a phone call he made had dropped out. The offender made another call that also dropped out. The offender then started banging the hand set against the phone, saying, "Fuck this thing, it's fucked." An officer then instructed the offender to stop. The offender threw the handset against the wall and walked off, saying somebody was going to get hurt if he did not get his phone call that night.
Officer Clissold was requested to attend the location and did so. The offender returned to the area. He had his right wrist raised and was saying, "Somebody's going to get hurt if I don't get my call tonight."
The offender approached Officer Clissold, grabbed hold of the front of his shirt and pushed him backwards into a wall. After a period of time the offender was restrained. This activity forms the basis of count 2 upon the indictment which is identical to count 1. [Count 2 on second indictment]
About 8.30am on Thursday 1 July 2004, the offender was being moved to the holding room as a result of the events which are the subject of count 2. Whilst being transported, the offender ran off and climbed an internal fence adjacent to the centre's gym. Once on the roof, he pulled out the inner section of the Foxtel dish and called out, "If any cunt comes up here they will get it." The offender then smashed the dish and the receiver.
After a period of negotiation the offender was removed from the roof.
This activity forms the basis of count 3 in the indictment, which is a count of malicious damage. Pursuant to section 195A of the Act, this carries a maximum penalty of five years imprisonment. [Count 3 second indictment]
About 4.45pm on Monday 5 July 2004, the offender and a number of other detainees were on the tennis court area. The offender wanted to go to the oval area. He was informed that the detainees from his unit were unable to use the oval on that day. The offender began to yell at staff members, "You dogs are cunts." He began throwing rubbish around the tennis court area, kicked office doors and a fire hydrant. The offender turned the hydrant on. Officer Jones told the offender to settle down, to which the offender replied, "Fuck you, you dog." Jones manoeuvred past the offender and turned the hydrant off.
The offender commenced to throw rubbish at the officer. The offender was told to stop. The offender walked towards Mr Jones saying, "Come on, have a go. I'm going to bash your head in." The offender began throwing punches at Mr Jones. His fists were clenched. The offender struck Mr Jones in the right temple and ear. Mr Jones grabbed the offender, placing him in a bear hug, and took him to the ground."
This activity gives rise to count 4 in the indictment, which is in terms identical to count 1. [Count 4 on second indictment]
The offender continued to struggle whilst on the ground. Another detainee became involved in the incident. Officer Walsh went to the assistance of Mr Jones. Officer Walsh attempted to subdue the offender whilst Officer Jones attended to the other detainee who had become involved. Officer Walsh, with the assistance of other officers, lifted the offender to his feet and began to escort him to the isolation area. The offender continued to struggle and was handcuffed. After being cuffed and en route to the isolation area, the offender head butted Officer Walsh. The offender's forehead came into contact with Officer Walsh's right cheek. The offender then spat directly into Mr Walsh's face. He was again subdued and escorted to the isolation area.
This activity gives rise to count 5 on the indictment, which is in terms identical to count 1. [Count 5 on second indictment]
At about 12.20 pm on 2 September 2004, the offender was in the Carinya Unit dining room along with several other detainees. A disturbance started between a number of detainees. The offender was seen by staff to kick a toaster bolted down to the kitchen bench. He was told by staff to stop kicking the toaster and to settle down. The offender told the staff: "Get fucked, I'll do what I want to do. We run this centre, not you guys."
A number of other detainees commenced to throw items around the dining room. The offender obtained a lighter from another detainee. He then set fire to a bread bag, dish cloth and pillow case. Once the pillow case was well alight, the offender dangled it above and onto the carpet.
This forms the basis of count 7 on the indictment which is a count of malicious damage by fire. Pursuant to section 195B of the Act, that carries a maximum penalty of 10 years imprisonment. [Count 7 on second indictment]
When the pillow case was well alight, Officer Hansen approached the offender in an attempt to remove the pillow case from him. The offender swung the burning pillow case at Officer Hansen, striking him to the left side of the head, face and neck. Officer Hansen received minor burns to the areas referred to. After a short period of time the offender was escorted away.
The activity involving Officer Hansen forms the basis of count 6 in the indictment, which is a count of assaulting a law enforcement officer, not being a police officer, while in the execution of the officer's duty, and by the assault, occasioning actual bodily harm. The maximum penalty for that offence pursuant to s 60A (2) of the Act is seven years imprisonment. [Count 6 on second indictment]
About 10.50am on 18 September 2004, Officer Pedavoli was on duty in the Carinya dining room. The offender entered the dining room. He had his fists clenched and began to walk round and round the room. He was yelling "Fuck you". Pedavoli told the offender, "Calm down, (the applicant) ". The offender then picked up a hot water Esky and threw it. Pedavoli again told the offender to calm down. The offender said: "Fuck off. I've lost me visits. I'll bash you, you old cunt. Fuck off”.
As he was speaking the offender was walking quickly towards Officer Pedavoli. The offender came up to Officer Pedavoli and swung several punches at him. Officer Pedavoli ducked, but at least one punch struck him to the left side of the face. Officer Pedavoli grabbed the offender to restrain him and ended up on one knee. The offender then backed off and walked away.
This activity forms the basis of count 8 on the indictment, which is in terms identical to count 1. [Count 8 on second indictment]
The offender and another detainee were then calmed and secured within the Program Unit. About 1.30pm the offender and the other detainee barricaded themselves within the common room and the Programs Unit. The common area is furnished with lounges, a pay phone, and kitchen facilities, including a fridge, stove, sink, fixed tables and cooking benches. The offender and the other detainees then smashed the steel water pipes away from the sink and then used those items to smash furniture, the fridge, stove and pay phone. The door of the fridge was torn off and the pay phone smashed from the wall. The stove was smashed and the lounges damaged.
These activities give rise to the count of affray which is contained on a Form 1 and which is to be taken into account when (the applicant) is dealt with on count 8 in the second indictment. [Form 1 offence] The other activity forms the basis of count 9 on the indictment, which is a count of malicious damage, carrying a maximum penalty of five years imprisonment as does the count of affray. [Count 9 on second indictment].

11 The first ground of appeal asserts that his Honour failed to have regard to the lesser culpability of the applicant in those offences common to or connected with those committed by the co-offenders. The second ground of appeal asserts that his Honour failed to have proper regard to the applicant’s youth, in particular relative to the ages of the co-offenders.

12 It was not submitted that his Honour misunderstood or misstated the roles played by the three participants. Rather, this Court was invited to infer from the sentences themselves that his Honour must have failed to take sufficient account of the differences of roles favourable to the applicant.

13 It was submitted that although his Honour decided to deal with the applicant according to law, a decision which was not challenged on appeal, his Honour was still obliged to take into account the age of the applicant. He was seventeen years and three months of age when he committed the offences in the first Indictment. Brown and Crossley were each, at eighteen years and seven months of age, one year and four months older. The submission was that his Honour’s references to youth appeared to be common to all offenders and that remarks about the applicant’s insight, maturity and acceptance of responsibility were of a kind commonly made about young adults, not appearing to be linked at all to the fact that the applicant was under eighteen years of age at the time of the offences. It could not be submitted that any of his Honour’s references to the youth of the applicant was erroneous on its face. As with the case about the relative roles of the offenders, any conclusion that his Honour failed to take proper account of the applicant’s age or of the difference between his age and the ages of the co-offenders could be available only by inference from the sentences themselves. It is therefore necessary to compare the individual and total effective sentences imposed on the applicant, and on Brown and Crossley.

14 The table set out hereunder lists each of the counts in the applicants first Indictment. The sentence for each offence is expressed in whole years or fractions of years, non-parole period added to parole period producing a total term. An asterisk denotes any sentence that took into account scheduled offences.

Count	Applicant	Brown	Crossley
1 Theft of Nissan	1 + 1 = 2	1½ + 1½ = 3*	1 + 1 = 2
2 Robbery BP Warners Bay	2 + 2 = 4	(on schedule)	(on schedule)
3 Theft of Subaru WRX	2 + 2= 4*	2 + 2 = 4	3¾ + 3¾ = 7½ *
4 Aggravated break enter and steal at Footlocker	2 + 2 = 4	3¾ + 3¾ = 7½ *	2½ + 2½ = 5
5 Robbery Ms Slarks	1½ + 1½ = 3▲	2½ + 2½ = 5	2½ + 2½ = 5
6 Aggravated break enter and steal Bogas	2 + 2 = 4	2½ + 2½ = 5	2 + 2 = 4
7 Demand money of Mr Carroll	½ fixed ▲	2 +2 = 4*	1½ + 1½ = 3

▲ Applicant convicted of accessory after the offence; Brown and Crossley of principal offence

15 The nine counts in the second Indictment, based on the events at Kariong between 13 June and 18 September 2004, were solely the responsibility of the applicant. Neither Brown nor Crossley was involved. In the same way there were matters for which Brown was sentenced that were peculiar to him and matters for which Crossley was sentenced that were peculiar to him. To add to the complication, the applicant, Brown and Crossley were dealt with differentially for matters in which they were all involved, for example, in the robbery of the BP service station at Warners Bay the applicant was sentenced (count 2), whereas both Brown and Crossley were not charged with that offence but given the benefit of its inclusion on a schedule. In the robbery of Ms Slarks and in the attack on Mr Carroll the applicant was charged only with being an accessory after the fact, whereas Brown and Crossley were charged with the principal offence. The applicant was not charged over the burning of the Subaru.

16 The total effective sentence passed on Brown was one of nine years, comprising a non-parole period of five years three months and a balance of term of three years nine months. Crossley’s sentence totalled eight years, comprising a non-parole period of four years and three months and a balance of term of three years and nine months.

17 But for the sentences imposed for the offences in the second Indictment, the applicant’s total effective sentence would have been of five years and three months, comprising a non-parole period of three years and three months and a balance of term of two years. The excision from the sentences of Brown and Crossley of offences with which the applicant was not concerned would require some such similar adjustment, of course.

18 All offenders received sentences far less than the relevant maxima and far less than the relevant standard non-parole periods on account merely of the number of offences, the shortness of the period of time during which they were committed, and their youth. The necessary application of the principle of totality of criminality made it necessary for his Honour to pay careful regard to the total effective sentence resulting for each offender.

19 These matters demonstrate that it is impossible to make any but a broad comparison of the sentences and roles of the applicant, Brown and Crossley. It seems to me that the overall sentence imposed on each of the three offenders reflected their respective criminality and ages. Such a comparison does not appear to me to demonstrate that his Honour lost sight of the lesser role played by the applicant in, for example, the theft of the Subaru. And it is necessary to observe that the applicant did not play a minor part throughout. The success of the enterprise of the three depended very much on the skill and determination of the driver. The applicant played that major role. In my opinion his Honour was entitled to conclude that there was no clear leader. I would not infer that his Honour did not in the individual sentences and in the total effective term give proper weight to the part played from time to time by the applicant.

20 I would not infer that his Honour lost sight of the fact that Brown and Crossley were adults whereas the applicant was still a child. The difference in their ages, one year and four months, does not seem to me to justify any greater discrimination than that made by his Honour.

21 These grounds of appeal have not been made good.

22 The third and last ground of appeal was that the overall sentence and effective non-parole period were manifestly excessive. Counsel drew attention to the age of the applicant and the ages of the co-offenders, the applicant’s greater willingness to admit his offences, causing the sentencing judge to note that there was “ at least some hint of recognition on his part that what he had done was wrong ”, the applicant’s unsettled and unstable family circumstances, the fact that the applicant had been sexually assaulted when very young, the applicant’s apparent insight and maturity, as reported in the Juvenile Justice report and his Honour’s conclusion, following the applicant’s evidence, that he was remorseful.

23 The matter is one of impression. Balancing all these matters with the totality of the applicant’s criminality, I conclude that the sentences imposed, and each of them, fell within his Honour’s sentencing discretion. This ground of appeal has not been made good.

24 I propose that leave to appeal against sentence be granted but that the appeal be dismissed.

25 HOEBEN J : I agree with Barr J.
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