MF v R

[2024] NSWCCA 42

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

MF v R [2024] NSWCCA 42

Hearing dates:

28 February 2024

Date of orders:

15 March 2024

Decision date:

15 March 2024

Before:

Garling J at [1]
Wilson J at [2]
Cavanagh J at [3]

Decision:

(1) Leave to appeal is granted.

(2) The appeal against sentence is allowed.

(3) The sentence of Judge Ingram SC of 9 December 2022 is quashed.

(4) In lieu thereof, the applicant is sentenced to a term of imprisonment of four years and ten months commencing on 23 December 2020, with a non-parole period of three years and one month ending on 22 January 2024. The applicant is thus now eligible for parole.

(5) The order of the sentencing judge that, pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987 the applicant serve the entirety of the sentence as a juvenile offender is confirmed.

Catchwords:

CRIME – appeals – appeal against sentence – whether sentencing judge failed to have regard to applicant’s youth in assessing moral culpability and the role of general deterrence – whether the relevance of the applicant’s youth to these factors adequately explained – relationship between moral culpability and objective seriousness

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 19

Crimes Act 1900 (NSW), s 33

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Cases Cited:

Chandler v R [2023] NSWCCA 59

Director of Public Prosecutions (Cth) v De La Rosa (2000) 79 NSWLR 1

DL v The Queen (2018) 265 CLR 215

DS v R; DM v R (2022) 109 NSWLR 82

Kentwell v The Queen (2014) 252 CLR 601

KT v R (2008) 182 A Crim R 571

Lloyd v R [2022] NSWCCA 18

Mifsud v Campbell (1991) 21 NSWLR 725

Muldrock v The Queen (2011) 244 CLR 120

Ney v R [2023] NSWCCA 252

Paterson v R [2021] NSWCCA 273

R v Eaton [2023] NSWCCA 125

R v Henry (1999) 46 NSWLR 346

Sarhene v R [2022] NSWCCA 79

Taylor v R [2018] NSWCCA 255

TM v R [2023] NSWCCA 185

Turnbull v R [2019] NSWCCA 97

Category:

Principal judgment

Parties:

MF (Applicant)
Rex (Respondent)

Representation:

Counsel:
J Brock (Applicant)
S Lind (Respondent)

Solicitors:
Aboriginal Legal Service (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2020/00364646

Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings Act) 1987, the name of the applicant must not be published in a way that connects him to these proceedings.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Crime

Date of Decision:

09 December 2022

Before:

Ingram SC DCJ

File Number(s):

2020/00364646

HEADNOTE

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

The applicant, MF, sought leave to appeal against the sentence imposed upon him in the District Court for an offence of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW).

At the time of the offending, the applicant had attended at his younger sister’s premises in company with his father, where the victim was present, believing that there had been some domestic violence involving the applicant’s sister and the victim. The applicant and his father surrounded the victim and stabbed him five times, although the applicant did not personally stab the victim five times.

The applicant was sentenced to a term of imprisonment of 5 years and 6 months with a non-parole period of 3 years and 6 months (after discount for a plea of guilty).

The applicant was 16 years of age at the time of the offence and 18 years of age at the time of sentence.

The applicant sought leave to appeal on three grounds being that:

1. the sentencing judge erred in failing to have regard to the applicant’s youth in assessing moral culpability and the relevance of general deterrence; or

2. in the alternative, the reasons do not explain how the applicant’s youth impacted upon moral culpability and general deterrence; and

3. the sentence was manifestly excessive.

In relation to ground 1, and 2 in the alternative, the Court held (per Cavanagh J, Garling and Wilson JJ agreeing) granting leave to appeal and allowing the appeal that:

It is not generally necessary for a sentencing judge to refer to every principle of sentencing or statutory provision as if engaged in some sort of check list process (see [49]).

Sometimes reference to well known cases and general reference to the principles contained therein would suffice (see [50]).

Taylor v R [2018] NSWCCA 255 considered.

The principles relating to the relevance of the applicant’s youth do not just include a statement about the increased emphasis on rehabilitation but include statements that:

1. considerations of general deterrence may be less significant when sentencing a juvenile; and

2. the offender’s youth and immaturity are also relevant to an assessment of moral culpability.

See [63].

KT v R (2008) 182 A Crim R 571 considered.

The sentencing judge referred to the sentencing principles relating to youth generally, but acknowledgment of the principles will not suffice unless it is apparent from the sentencing judgment that those principles have been taken into account, as required in the exercise of the sentencing discretion (at [70] – [78], see Lloyd v R [2022] NSWCCA 18 at [32]-[34] per McCallum JA).

The sentencing judge needed to say how the applicant’s youth impacted on both moral culpability and general deterrence. The absence of any explanation leads to the conclusion that either his Honour did not take account of those matters properly or inadequate reasons were provided (at [77]).

DS v R; DM v R (2022) 109 NSWLR 82 considered.

In light of the Court’s reasons in relation to ground 1 and 2, it was not necessary to consider ground 3 (see [85]).

JUDGMENT

1. GARLING J: I agree with the orders proposed by Cavanagh J, for the reasons which his Honour gives.

2. WILSON J: Cavanagh J has set out the facts and circumstances of this application. I agree with the orders proposed by his Honour, for the reasons he has given.

3. CAVANAGH J: The applicant seeks leave to appeal a sentence imposed by his Honour Judge Ingram SC on 9 December 2022 in the District Court.

4. The sentencing followed the applicant's plea of guilty to the offence of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). His Honour sentenced the applicant to a term of imprisonment of 5 years 6 months with a non-parole period of 3 years and 6 months. At the time of the offending, the applicant was 16 years and 3 months old. An order was made pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987 (NSW) that the applicant serve the entirety of the sentence as a juvenile offender.

5. An offence pursuant to s 33(1) of the Crimes Act 1900 (NSW) is defined as “a serious children's indictable offence” for the purpose of the Children (Criminal Proceedings) Act. It follows that the offence was required to be dealt with in accordance with law and the applicant could not be sentenced in the Children's Court.

6. The applicant seeks leave to appeal on three grounds, being:

1. The sentencing judge erred by failing to have regard to the applicant’s youth when assessing his moral culpability and the role of general deterrence.

2. In the alternative, his Honour’s reasons for sentence do not explain what impact the applicant’s youth had on an assessment of moral culpability and general deterrence.

3. The sentence is manifestly excessive.

7. Grounds 1 and 2 are obviously related. Whilst ground 3 (manifest excess) does not require the identification of any specific error, the import of ground 3 is really that, if the sentencing judge had proper regard to the applicant's youth (contrary to grounds 1 and 2), then it must be that the sentence is manifestly excessive.

Background

8. There were agreed facts on sentence. The sentencing judge made findings of fact in accordance with the agreed statement of facts. For the purposes of this appeal they need only be summarised.

9. The applicant's younger sister (“NF”) was previously in a relationship with the victim. They had a child who was four years old at the time of the offending. Although the victim no longer lived with NF, he was at her home, a studio apartment, on 22 December 2020.

10. At around 11:20pm, the victim and MF’s older sister (“TF”) exchanged a number of abusive text messages. Using NF’s mobile phone, the victim replied to TF with a similarly abusive text message. TF responded with her own series of messages. At 11:45pm, NF spoke to TF on the phone on loudspeaker mode. They discussed getting a pizza. The victim overheard this conversation and believed that a codeword was being passed between them.

11. Shortly thereafter, that is around midnight, and whilst the victim was still outside on the driveway, a car arrived at the address. The car was driven by TF. The applicant and his father were passengers. The victim went inside and locked the door whilst NF remained outside.

12. A short time later, the four-year-old child awoke and was calling for his mother. The victim then unlocked the front sliding door, handing the child to NF. At this moment, the applicant came towards him approaching him from around the side of the house. The applicant stood in front of the victim and the applicant’s father stood behind him.

13. The applicant and his father both stabbed the victim. He sustained five wounds, one over the chest causing a collapsed lung; one over the upper quadrant of the abdomen, puncturing his bowel; one over the left forearm causing bleeding to an artery; and two in the back.

14. It was an agreed fact that the applicant stabbed the victim more than once, but there was no agreement as to how many times he stabbed the victim.

15. The applicant and his father then left the scene. The victim called emergency services. He was taken by ambulance to St George Hospital where he underwent surgery. He remained an inpatient for five days.

16. The applicant was arrested the next day.

Remarks on sentence

17. The sentencing judge observed that the applicant and his father acted together as members of a joint criminal enterprise which resulted in the victim sustaining five serious stab wounds. The offence was therefore committed in company. The applicant was responsible for all the stab wounds, although he did not personally inflict all of them.

18. The offence involved the use of a weapon to stab the victim. The sentencing judge was unable to be satisfied as to the source of the implement used to stab the victim but accepted that, at the time of the stabbing, the applicant had an implement available to him and used it to inflict at least one of the stab wounds on the victim.

19. His Honour accepted that the genus of the offence may have been a perception on the applicant's part that the victim had been engaging in domestic violence in relation to the applicant's sister, but the extent to which any amelioration of the sentence might be warranted was attenuated by the fact that the law does not condone vigilantism.

20. As his Honour said, a suitable and available step would have been to notify the police. His Honour observed that a number of the stab wounds were very serious, and the victim underwent surgery and spent five days in hospital.

21. His Honour was satisfied that the offence was objectively a serious incident of the type of offence in contravention of s 33(1)(a). Although the offence was committed using a weapon and in company (which would be aggravating factors under ss 21A(2)(c) and 2(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Procedure Act”)), his Honour said that he had already taken those factors into account in assessing the objective seriousness of the offence.

22. His Honour accepted that the fact that the applicant was on conditional liberty at the time was an aggravating feature under s 21A(2)(j). His Honour considered that that factor elevated the criminality involved, particularly as the earlier offences also involved violence.

23. At the time of the offending, the applicant was 16 years and 3 months of age. At the time of sentence, he was 18 years and 3 months of age.

24. The applicant did not give evidence on sentence. He relied on a report of a psychologist, Ms Thea Gumbert, dated 27 October 2022. He also relied on a handwritten letter under his own hand.

25. The applicant is of Aboriginal and Māori descent. He is the youngest of five children. He has a history of anxiety and anger management at high school which resulted in being frequently disciplined. His mother left the family unexpectedly when the applicant was 14 years of age and contacted him again on his 16^th birthday. They have re-established their relationship.

26. From the age of 14, the applicant began associating with a negative peer group, which normalised violence, drug use and criminal activity. He started drinking and used cocaine and MDMA. He became addicted to cocaine and amassed a substantial drug debt. He had been diagnosed with PTSD consequent on two friends dying in a motor vehicle accident. He had been engaging in weekly psychological sessions whilst in custody but had no prior mental health treatment.

27. After setting out the applicant's background, his Honour paid particular attention to the evidence on sentence, and a number of important sentencing factors.

28. Firstly, his Honour referred to the Youth Justice Report, which provided a background to the applicant’s education and the courses he was undertaking. His Honour referred to the comment in the report relating to the applicant's limited decision-making skills, consequential thinking, impulse control and emotional regulation, which is said to have contributed to the offending behaviour.

29. Secondly, his Honour considered the applicant’s alcohol and drug abuse issues, accepting that, in accordance with R v Henry (1999) 46 NSWLR 346 (“Henry”), such alcohol and drug abuse issues during childhood served to ameliorate his moral culpability for the offence.

30. Thirdly, his Honour referred to the applicant's mental health and “Muldrock” considerations (see Muldrock v The Queen (2011) 244 CLR 120), noting that the applicant met the diagnostic criteria for conduct disorder (adolescent onset type severe) and PTSD.

31. Ms Gumbert considered that the applicant may experience an impulse control disorder such as intermittent explosive disorder. His Honour did not accept that the evidence was sufficient to warrant a finding of a causal connection between the applicant's mental health issues and the offending but accepted that they form part of the factual matrix pertinent to the sentencing process (Muldrock; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1). His Honour said that he would take into account these matters in relation to any finding of moral culpability and the appropriate sentence to be imposed in the sense that they would render more onerous any custodial sentence imposed on the applicant.

32. His Honour also dealt specifically with the applicant's youth, which was the subject of extensive submissions on sentence. I include his Honour's observations about the relevance of youth as follows:

“The Court is satisfied that the age of the offender at the time of the commission of the offence, namely 16 years and three months, and at the time of sentence, namely 18 years and three months, each warrant the application of the principles concerning the sentencing of relatively youthful offenders with somewhat increased emphasis in the index matter on rehabilitation within the terms of the principles referred to in KT v R [2008] NSWCCA 51, and the numerous other authorities on those matters, some of which are referred to in that case.”

33. Having considered all these factors, his Honour then stated:

“Having regard to the relevant objective and subjective circumstances referred to above, the Court is satisfied that the offender has a substantial level of moral culpability for the index offence.”

34. His Honour then went on to accept that the applicant was generally remorseful and had accepted responsibility for his actions and acknowledged the harm done to the victim and wider community. His Honour referred to the report of Ms Gumbert and the Sentencing Assessment Report, ultimately concluding that the applicant had reasonably good prospects of rehabilitation. His Honour considered it premature to make a positive finding as to the applicant’s likelihood of reoffending bearing in mind that he was on conditional liberty at the time of the offence and had a history of violent offences.

35. His Honour then made reference to s 3A of the Sentencing Procedure Act, particularly observing that, although the applicant had some positive aspects to his subjective case, those considerations should not overwhelm the requirement for the imposition of a sentence which reflects the appropriate balance between all the relevant objective and subjective circumstances. His Honour observed:

“On the other hand, the Court is also satisfied that the sentence should reflect that appropriate increased weight has been allowed to reflect the offender’s prospects of rehabilitation and to enhance those, and that the weight that has been afforded to the issue of rehabilitation in the sentence is commensurate, in the Court’s view, with the proper application of those principles in that regard, referred to in KT above and the numerous authorities cited therein and otherwise applicable, to the emphasis that must be placed on rehabilitation when sentencing a young offender or someone who was a young offender at the time of the offence”.

Applicant's submissions

36. The applicant submits that, although he advances three grounds of appeal, each of those grounds have a shared foundation, being that the sentencing judge did not apply the principles relevant to sentencing a child. Specifically, the applicant submits that those important principles were not applied in the evaluation of moral culpability or in the assessment of the significance of general deterrence. The applicant submits that a finding of reduced moral culpability also had the capacity to impact on the findings on objective seriousness.

37. Alternatively, the applicant submits that, if those principles have been applied, his Honour did not identify in the sentencing judgment how they were applied.

38. Finally, the applicant submits that, even if he has not identified any specific error, the sentence must be viewed as manifestly excessive having regard to the circumstances of the offending, the applicant's age and the positive findings on issues such as rehabilitation.

39. The applicant refers to the detailed submissions made by defence counsel during the sentencing hearing in respect of the applicant's youth and its significance to several important and distinct aspects of the sentencing process, being:

1. the applicant's immaturity was relevant to assessing the criminality of the offence and had the capacity to impact on the objective seriousness of the offending;

2. the applicant's youth was consistent with the impulsive and reactionary circumstances of the offending and the limits of the applicant's decision-making capacity as described within the Youth Justice Report. Those features militate against any suggestion that the applicant's involvement could be cast as adult like;

3. the involvement of the applicant's father and older siblings constituted a context whereby those persons could be seen as inappropriate role models and gave rise to a dynamic that would have been hard for the youth to overcome. This is said to be relevant to moral culpability;

4. accordingly, general deterrence would be reduced and emphasis should be placed on rehabilitation. Further, the applicant’s subjective case was indicative of a reduced need for specific deterrence; and

5. the combination of all these circumstances made the applicant's youth and immaturity highly relevant to an assessment of his moral culpability, particularly when evaluated in light of the perception that his sister was in danger of violence.

40. The applicant says that the principles set out in s 6 of the Children (Criminal Proceedings) Act remain relevant and points to the recent summary set out by Hamill J in Sarhene v R [2022] NSWCCA 79 (“Sarhene”) at [24]–[25]:

“[24] The relevant sentencing principles are not in doubt. The applicant drew attention to the summary of some of the authorities in the judgment of Bellew J in Howard v R [2019] NSWCCA 109 at [87]-[91]. In that case, Bellew J was not satisfied that the offender’s youth and immaturity was a contributing factor to the offending. However, Fullerton J (with whom Macfarlan JA agreed) came to the contrary view stating at [13]-[14]:

‘It is not necessary to restate the principles articulated in a succession of authorities governing the sentencing of youthful offenders referred to by Bellew J, save to emphasise that the law recognises the potential for the cognitive, emotional and/or physiological immaturity of a young person to contribute to their breach of the law. It is also 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.

…

I would venture to suggest that in most cases it is the offending conduct itself, coupled with the age of a youthful offender that allows for the inference to be drawn that the commission of an unpremeditated or unplanned criminal act was likely to be responsive to the interplay of a young person's immaturity and a compromised capacity for mature decision-making.’

[25] Without meaning to do a disservice to those who have written about this important aspect of sentencing in the past, I will attempt to summarise some of the relevant principles:

• There is no doubt that the youth of an offender is a relevant factor, or a “most significant factor” in assessing what sentence should be imposed.

• Considerations of general deterrence may be less significant when sentencing a juvenile or young offender.

• Rather, emphasis should be placed on the “the need to provide an opportunity for rehabilitation”.

• While the relevance of youth diminishes the closer an offender gets to the age of maturity, there is no bright line between an offender who is just under 18 years of age and one who is just over 18 years of age; “emotional maturity and impulse control develop progressively during adolescence and early adulthood.”

• Where “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.”

• An offender’s youth and immaturity is also relevant to an assessment of their moral culpability.

• In some cases, where the young offender is said to have committed an “adult crime” or “conducted him or herself as an adult might”, the significance of youth, or the weight to be afforded to it, has been held to be less.

• However, courts should not “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.”

41. The applicant submits that on a complete reading of the sentencing judgment, it is apparent that the sentencing judge has not dealt with the applicant's youth in accordance with these long-established principles. Whilst his Honour referred to the applicant's youth and in particular, KT v R (2008) 182 A Crim R 571 (“KT”), the applicant submits that his Honour did so only in the context of rehabilitation. His Honour made no reference to the applicant's youth as impacting upon the applicant's moral culpability or being relevant to general deterrence.

The Crown’s submissions

42. The Crown submits that on a fair reading of the sentencing judgment his Honour had proper regard to all relevant factors in the exercise of the sentencing discretion and paid due regard to the applicant's youth and how it impacted upon the sentencing process.

43. Specifically, in assessing the applicant's moral culpability, his Honour had regard to the relevant objective and subjective circumstances “referred to above”. The Crown submits that, as one of the factors already referred to was the applicant's youth, the sentencing judge must be taken to have considered the applicant's youth in assessing moral culpability.

44. Further, the applicant's subjective circumstances, which must include his youth, were again referred to in imposing the sentence. Indeed, his Honour said, “the subjective circumstances of the Offender (particularly his youth)”. The Crown submits that the sentencing judge paid particular attention to the Sentencing Assessment Report/Youth Justice Report as well as the report of the psychologist Ms Thea Gumbert.

45. The Crown refers to a number of cases such as Ney v R [2023] NSWCCA 252 (“Ney”) and Chandler v R [2023] NSWCCA 59 (“Chandler”), in which a similar approach had been taken and this Court accepted that the sentencing judge's general reference to the applicant's subjective circumstances extended to considering the mitigatory effects of the applicant's youth.

46. Finally, the Crown submits that the adequacy of reasons must be assessed according to the circumstances of the individual case (Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA, with whom Clarke JA and Hope AJA agreed). The Crown submits that the reasons adequately demonstrate that the sentencing judge took into account the applicant’s youth in assessing moral culpability and thus no error is established.

47. In terms of manifest excess, the Crown points to the serious nature of the injuries sustained and the role of the applicant in the offending. The Crown points to the earlier violent offending of the applicant. The Crown submits that the sentence could not be seen to be unreasonable or unjust.

Consideration

48. In assessing whether error has been established it is important to read the sentencing judgment as a whole. Any review should not be undertaken with too critical an eye or on the basis that such sentencing judgments must represent what may be described as a “counsel of perfection”.

49. It is not generally necessary for a sentencing judge to refer to every principle of sentencing or statutory provision as if engaged in some sort of check list process.

50. Sometimes reference to well known cases and general reference to the principles contained therein would suffice, as is demonstrated in cases such as Chandler and Ney.

51. The observations of Wilson J in Taylor v R [2018] NSWCCA 255 at [52]-[56] are particularly pertinent to this issue:

“[52] It is important to bear in mind the multiple purposes of a court in giving a sentence judgment, purposes which all point to a requirement for transparency, but not for mere recitation of law and principle. The offender and the Crown must both be enabled to understand how the sentencing judge arrived at the sentence ultimately imposed, and to ascertain whether there has been some misapplication of fact or principle, or some other error, such that there may be an available appeal on a matter of substance. Any appellate court considering whether such error has occurred must be able to determine a claim of error by considering the sentence judgment…

[56] Whilst specific references in a sentencing judgment to law and principle make the job of an appellate court in determining whether there was some error in the application of principle more straightforward, that by no means dictates a need for the slavish recitation of applicable law by first instance judges. It is enough if, on considering the whole of the sentencing remarks, the appellate court is able to determine what the sentencing court did and why, and determine whether law and principle have been correctly applied.”

52. In this matter, the sentencing judge delivered remarks on sentence which were comprehensive and covered all relevant sentencing factors in the sense of making reference to them. The applicant could not complain about this.

53. The issue in this appeal is, however, more nuanced. It is not said that the sentencing judge did not have any regard to the applicant’s youth, but it is said that his Honour either overlooked the relevance of youth to two important discretionary factors or failed to explain how he had regard to such matters.

54. Acknowledgment of the principles will not suffice unless it is apparent from the sentencing judgment that those principles have been taken into account, as required in the exercise of the sentencing discretion (see Lloyd v R [2022] NSWCCA 18 at [32]-[34] per McCallum JA (as her Honour then was)).

55. There can be no doubt that the sentencing judge was directed to the applicant's youth as a relevant sentencing factor. The applicant made comprehensive submissions on the topic to his Honour. There can also be no doubt that his Honour had regard to the applicant's youth in some respects in the sentencing process. He said so and devoted a specific paragraph to the topic. Further, there are other references to the applicant's age in other parts of the sentencing judgment, including:

1. references to the applicant’s difficult childhood and issues in high school;

2. a reference to the applicant's mother leaving the family unexpectedly and the applicant disowned, careless and reckless and describing becoming more aggressive, irritable and emotionally reactive, albeit they had reconnected shortly before the offending;

3. reference to the applicant associating with a negative peer group from about the age of 14 and developing a pattern of binge drinking and using cocaine and MDMA;

4. reference to the Youth Justice Report, with specific reference to the applicant's limited decision-making skills, consequential thinking, impulse control and emotional regulation contributing to the offending behaviour;

5. reference to the applicant drinking alcohol from the age of 14 and the application of the principles set out in Henry regarding early drug use and its impact on amelioration of the moral culpability of the applicant;

6. reference to the psychologist report, including a reference to the applicant meeting the diagnostic criteria for conduct disorder (adolescent onset type severe) and that the applicant may experience an impulse control disorder such as intermittent explosive disorder; and

7. reference to giving increased weight to the applicant's prospects of rehabilitation and ensuring that any sentence is consistent with the proper application of the principles referred to in KT as applied when sentencing a young offender.

56. Despite all of these references, the question remains whether, on considering the whole of the sentencing remarks, this Court is able to determine what the sentencing court did and why, and whether law and principle have been correctly applied.

57. The principles are not in dispute.

58. Section 6 of the Children (Criminal Proceedings) Act sets out guidelines when sentencing a person under the age of 18 as follows:

6 Principles relating to exercise of functions under Act

A person or body that has functions under this Act is to exercise those functions having regard to the following principles--

(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,

(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,

(f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,

(g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,

(h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.

59. In KT, McClellan CJ at CL with whom Hall and Price JJ agreed observed at [22]-[23]:

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

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

60. There is little difference between what McClellan CJ at CL said in KT and what Hamill J said in Sarhene, or what Beech-Jones CJ at CL (as his Honour then was) said in Chandler.

61. There needs to be “considerable emphasis” on providing an opportunity for rehabilitation when sentencing a young person. His Honour referred to this directly. After referring to the age of the applicant at the time of the offending and at the time of sentence, his Honour said each warrant the “application of the principles concerning the sentencing of relatively youthful offenders with somewhat increased emphasis in the index matter on rehabilitation within the terms of the principles identified in KT, and the numerous other authorities on those matters, some of which are referred to in that case”.

62. The parties disagree on whether his Honour’s reference to “the principles concerning the sentencing of relatively youthful offenders” was intended to be a reference to the increased emphasis on rehabilitation or the principles more broadly. For my part, reading those words in context and having regard to the remarks as a whole, I would accept that his Honour was intending to refer to the principles more broadly.

63. Those principles do not just include a statement about the increased emphasis on rehabilitation but include statements that:

1. considerations of general deterrence may be less significant when sentencing a juvenile; and

2. the offender’s youth and immaturity are also relevant to an assessment of moral culpability.

64. Accepting that his Honour was intending to include these matters by his reference to the principles, the question remains as to whether, and in what way, his Honour applied the principles as they relate to these two specific issues.

65. There is no challenge to how his Honour dealt with other matters in which youth was relevant such as the content of the Youth Justice Report, the impact of early childhood or adolescent drug use, and the mental health issues arising as a teenager.

66. Yet, when it came to making a finding about moral culpability, his Honour was satisfied that the applicant had a substantial level of moral culpability, despite identifying those factors (and assuming youth was one of them) which would serve to reduce the applicant's moral culpability.

67. Similarly, when referring to general deterrence his Honour referred to the need to ensure the applicant was adequately punished for the offence and “to provide for appropriate weight to be given to considerations of general deterrence, specific deterrence and community protection…” without mentioning the impact that the factors associated with the applicant’s age might have had on general deterrence.

68. The only mention in the sentencing judgment to general deterrence was his Honour's reference to providing appropriate weight to general deterrence in that passage.

69. It is thus difficult to discern how his Honour has had regard to the applicant's youth in assessing the significance of the two factors identified in the grounds of appeal.

70. If his Honour did reduce moral culpability, it is not clear from what point moral culpability might have been reduced. Perhaps it was reduced from a finding of a very substantial moral culpability but that is not apparent and, as his Honour does not say so, this Court, and indeed any interested person, would not know.

71. If his Honour’s reference to the applicable principles relating to youth as a mitigating factor was intended to be a reference to its impact on moral culpability and general deterrence as well as rehabilitation, then I am unable to determine from his Honour’s remarks how they impacted on the sentence. Contrary to the Crown submission, the finding of substantial moral culpability and the singular reference to general deterrence point in the other direction, that is that his Honour did not take account of the applicant’s youth in assessing the importance of either moral culpability or general deterrence.

72. Further, it is difficult to accept that moral culpability was reduced having regard to all of the factors identified, when it was described or found to be at the same general level as the finding on objective gravity. That is, the offending was objectively serious and the moral culpability was substantial. The similarity of these terms does not lead easily to the conclusion that the sentencing judge made a finding of reduced or lessened moral culpability.

73. In DS v R; DM v R (2022) 109 NSWLR 82 (“DS”), the Court (per Beech-Jones CJ at CL, N Adams and Cavanagh JJ) explained the relationship between the separate but related concepts of moral culpability and objective seriousness by asking at [91]: “from what has the offender's moral culpability been reduced?” and stating “[t]he short answer is from a moral culpability that corresponds or substantially corresponds with the objective seriousness (or gravity) of the offence.”

74. Describing the applicant’s moral culpability as substantial for an offence which is described as serious does not tend to suggest that the sentencing judge has applied a reduced moral culpability in the exercise of the sentencing discretion.

75. Further, his Honour’s finding that appropriate weight must be given to general deterrence may leave open the possibility that by “appropriate” his Honour meant less significant, but again that is not apparent from his Honour’s remarks.

76. In DS at [93] the Court said:

“In some cases, where there is a factor that clearly operated to reduce an offender’s moral culpability, it may suffice if the sentencing judge made it clear how that factor affected the sentencing considerations without necessarily using the phrase “moral culpability” (Khan v R [2022] NSWCCA 47 at [1] to [12]). Further, in some cases, it will be clear how an express determination that an offender’s moral culpability was reduced bore on the sentencing exercise. In other cases, that may need to be expressly stated.”

77. Adopting the language used in DS, in my view, this is a case in which the sentencing judge needed to say how the applicant’s youth impacted on both moral culpability and general deterrence. The absence of any explanation leads to the conclusion that either his Honour did not take account of those matters properly or inadequate reasons were provided.

77. I should also deal with another submission made by the applicant. The applicant also submitted that his Honour made no allowance for his youth in assessing the objective seriousness of the offence, referring to submissions made on sentence to the effect that matters personal to the offender can result in a reduction of objective seriousness.

78. In particular, the applicant referred to the observations of Yehia J in TM v R [2023] NSWCCA 185 at [55] as follows:

“Moral culpability and objective seriousness are separate but related concepts: see DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [77]; R v Valencia Valencia (No 3) [2023] NSWSC 780 at [18]; R v KS (No 1) [2023] NSWSC 696 at [68]; R v Eaton [2023] NSWCCA 125 at [45]; Camilleri v R [2023] NSWCCA 106 at [135]. Matters personal to an offender are usually relevant to an assessment of moral culpability as opposed to objective seriousness, unless causally connected to the offending.”

80. I do not take these comments as suggesting that youth of itself, being a matter personal to the offender, should reduce the objective seriousness of the offending.

81. It is important to observe that objective seriousness and moral culpability are separate concepts. The former involves an objective assessment of the seriousness of the crime and matters causally related to it. Moral culpability is concerned with the offender's moral blameworthiness for an offence (Paterson v R [2021] NSWCCA 273 at [29]-[31] per Beech-Jones CJ at CL as his Honour then was. See also R v Eaton [2023] NSWCCA 125 per Hamill J at [45]-[61]).

82. In DS, the Court rejected a contention that an assessment of the offender's moral culpability necessarily informs the assessment of the objective seriousness of the offence or is a component of the assessment of objective seriousness, describing them as separate but related concepts at [77]. Matters personal to the offender will not generally impact on the assessment of objective seriousness, although, for example, a causally relevant mental illness may impact on both.

83. I thus do not accept that the sentencing judge erred in failing to have regard to the applicant's youth in assessing objective seriousness.

84. However, for the reasons already identified, in my view, the applicant is entitled to succeed either because his Honour did not have regard to the applicant's youth in assessing moral culpability and the role of general deterrence (ground 1) or, if he did, his Honour did not give adequate reasons as to how he did so (ground 2).

85. It is not necessary to consider ground 3, manifest excess.

Re-sentence

86. As error has been established, it is necessary to resentence (Kentwell v The Queen (2014) 252 CLR 601). I must put aside the original sentence and exercise the sentencing discretion afresh (Turnbull v R [2019] NSWCCA 97 per Simpson AJA at [44] (“Turnbull”)).

87. In circumstances in which there is no challenge to any of the findings of the sentencing judge, this Court may adopt those findings (Turnbull per Simpson AJA at [44]-[45]; DL v The Queen (2018) 265 CLR 215 at [9]).

88. I accept that the offending is objectively serious. The applicant stabbed the victim with a weapon more than once, although it is not known how many times he personally stabbed the victim. He is jointly responsible for all the wounds in any event.

89. At the time, the victim was surrounded by the applicant and the applicant’s father, with the father standing behind the victim and also stabbing him. The victim sustained serious injuries which required hospitalisation and operative treatment.

90. The applicant was on conditional liberty for earlier offences of violence at the time, which is an aggravating feature.

91. Having said that, the applicant has a strong subjective case. I adopt the findings of the sentencing judge in respect of the significance of the applicant's mental health issues. They remain relevant, particularly in assessing moral culpability. Further, I adopt the findings of the sentencing judge in respect of the impact of the applicant's adolescent drug and alcohol use which serves to reduce his moral culpability, having regard to the principles set out in Henry.

92. I also have regard to the Youth Justice Report. As noted in that report, the applicant's behaviour appeared to be an impulsive reaction to a perceived threat that he believed the victim posed.

93. The applicant described feelings of heightened stress, anger and fear during the offence. His limited decision-making skills, lack of consequential thinking, impulse control and emotional dysregulation is said to have contributed to his offending behaviour.

94. Importantly, the authors of the Youth Justice Report make positive observations about the applicant's future. They say that they have seen him mature and develop further in both his attitudes and beliefs and his capacity to reflect, he is very future focused, setting long-term goals. He has a supportive and caring family, stable accommodation, employment goals and demonstrated interest in pursuing prosocial recreational activities.

95. It is apparent that that positive attitude has continued since sentencing, having regard to the further material relied on.

96. The applicant's youth is an important factor in the exercise of the sentencing discretion. Again, it is not necessary that I restate the principles to which I have already referred or discuss those earlier cases. It is important that I have regard to the applicant's youth, in particular by ensuring the need to provide an opportunity for rehabilitation but also in assessing the importance of general deterrence and moral culpability. Having regard to the applicant's age, general deterrence plays a lesser role in the exercise of the sentencing discretion.

97. In addition to the matters on which I have already commented, the applicant’s status as a person of a young age impacts on his moral culpability.

98. There are a number of factors which tend to reduce the applicant's moral culpability, including mental health issues, his adolescent drug and alcohol issues, his age, lack of maturity and general impulsivity. It is only necessary to say that his moral culpability is reduced from what it otherwise might be having regard to these factors.

99. I accept that the applicant has good prospects of rehabilitation.

100. I have had regard to the purposes of sentencing, the seriousness of the offending and the other matters to which I have referred.

101. I am satisfied that no sentence other than a term of imprisonment is warranted. Having regard to the need for a longer period on parole to assist in the applicant's rehabilitation and other factors such as his mental health issues, I am satisfied that there are special circumstances, and the statutory ratio should be varied.

102. The applicant is entitled to a 15% discount on account of his early plea.

103. Like the sentencing judge, I will commence the sentence on 23 December 2020. After discount, I impose a sentence of four years and ten months.

104. I fix a non-parole period of three years and one month. The applicant was first eligible for parole on 22 January 2024.

105. The orders I propose are that:

1. Leave to appeal is granted.

2. The appeal against sentence is allowed.

3. The sentence of Judge Ingram SC of 9 December 2022 is quashed.

4. In lieu thereof, the applicant is sentenced to a term of imprisonment of four years and ten months commencing on 23 December 2020, with a non-parole period of three years and one month ending on 22 January 2024. The applicant is thus now eligible for parole.

5. I confirm the order of the sentencing judge that, pursuant to s 19(1) of the Children (Criminal Proceedings) Act 1987 the applicant serve the entirety of the sentence as a juvenile offender.

Decision last updated: 15 March 2024