Momoa v R

[2020] NSWCCA 328

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Momoa v R [2020] NSWCCA 328

Hearing dates:

2 December 2020

Date of orders:

4 December 2020

Decision date:

10 December 2020

Before:

McCallum JA at [1];
Johnson J at [51];
R A Hulme J at [52]

Decision:

1. The Applicant is granted leave to appeal against the aggregate sentence passed at the Campbelltown District Court on 6 December 2019 for two offences of robbery in company contrary to s 97(1) Crimes Act 1900.

2.   The appeal is allowed and the aggregate sentence is quashed.

3.   The Applicant is sentenced to an aggregate term of imprisonment of 3 years and 8 months comprising a non-parole period of 1 year and 10 months commencing on 18 December 2018 and expiring on 17 October 2020 with a balance of term of one year and 10 months commencing on 18 October 2020 and expiring on 17 August 2022.

4. For the purpose of s 53A(2)(b) Crimes (Sentencing Procedure) Act 1999, the indicative sentences are as follows:

(a)   for the offence on 15 December 2018 - imprisonment for one year and 11 months;

(b)   for the offence on 17 December 2018 - imprisonment for two years and seven months.

5.   The Applicant is eligible for release on parole immediately.

Catchwords:

SENTENCING — Appeal against sentence — whether miscarriage of justice occasioned by incompetence of applicant’s solicitor at sentence proceedings — where solicitor failed to obtain evidence from police about applicant’s assistance to authorities — where solicitor failed to obtain or tender evidence about applicant’s mental illness — where that evidence would have established mitigating factors relevant to the sentencing task

OCCUPATIONS — Legal practitioners — Duties and liabilities — where appeal against sentence involves alleged incompetence of applicant’s solicitor at trial — where client legal privilege waived — where solicitor reluctant to provide information or affidavit concerning conduct at trial — obligation of a lawyer to assist the court where a ground of incompetence is raised — overriding duty to the Court

APPEALS — Procedure — where new evidence tendered on appeal against sentence — where expiration of applicant’s non-parole period imminent — whether Court of Criminal Appeal should remit matter to District Court or allow evidence to be tested on appeal

Legislation Cited:

Crimes (Sentencing Procedure) Act1999 (NSW), ss 21A(2), 53A

Crimes Act 1900 (NSW), s 97(1)

Cases Cited:

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Nudd v R (2006) 225 ALR 161; [2006] HCA 9

Pym v R [2014] NSWCCA 182

Rae v R [2019] NSWCCA 284

Tsiakas v R [2015] NSWCCA 187

Category:

Principal judgment

Parties:

Luka Momoa (a pseudonym) (Applicant)
Regina (Crown)

Representation:

Counsel:
L Fernandez (Applicant)
M Millward (Crown)

Solicitors:
Legal Aid (NSW) (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2018/389057

Publication restriction:

A pseudonym has been used in this judgment

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Crime

Date of Decision:

6 December 2019

Before:

Colefax SC DCJ

File Number(s):

2018/77612

Judgment

1. McCALLUM JA: Luka Momoa (a pseudonym) pleaded guilty to two offences of robbery in company contrary to s 97(1) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is imprisonment for a period of 20 years. The offences do not carry a standard non-parole period.

2. The sentencing judge (Colefax SC DCJ) elected to impose an aggregate sentence for both offences, as allowed under s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). His Honour sentenced Mr Momoa to a term of imprisonment for 4 years and 6 months with a non-parole period of 2 years and 3 months commencing on 18 December 2018, the date of the applicant’s arrest. As required by s 53A(2) of the Crimes (Sentencing Procedure) Act, his Honour indicated the individual sentences he would have imposed had he not imposed an aggregate sentence. For the first offence, his Honour indicated that the sentence would have been a term of imprisonment of 3 years and 6 months. For the second offence, it would have been 4 years and 6 months. His Honour allowed a discount of 25% for the applicant’s pleas of guilty. The indicative sentences after application of the discount (with some rounding down) were 2 years and 7 months for the first offence and 3 years and 4 months for the second offence.

3. Mr Momoa seeks leave to appeal against the sentence on the following grounds:

1. a miscarriage of justice has been occasioned by the incompetence of the applicant’s solicitor, who failed to obtain evidence from police about the applicant’s significant assistance to authorities.

2. a miscarriage of justice has been occasioned by the incompetence of the applicant’s solicitor, who failed to:

1. obtain a report from a psychiatrist regarding the applicant’s mental illness; and

2. tender any material relevant to the applicant’s mental illness.

Absence of evidence from the solicitor

4. As is appropriate in an appeal raising a ground of alleged incompetence on the part of an applicant’s former legal representative, the Director of Public Prosecutions endeavoured to obtain an affidavit from the solicitor in response to the allegations made by the grounds of appeal. There are several reasons why it is appropriate for the Director to obtain an affidavit from the lawyer in such a case. One is to afford procedural fairness to the lawyer by giving them the opportunity to defend their conduct, which might be the subject of adverse findings in a published judgment.

5. But more importantly it is appropriate, indeed arguably an aspect of the prosecutorial duty, for the Crown to endeavour to obtain complete and reliable information as to the circumstances in which a ground of incompetence is raised so as to be able to place that information before the Court where relevant. That is not to say that an account given by a convicted person to a new lawyer will necessarily be unreliable but only to recognise that the former lawyer’s evidence will be relevant too. An incomplete or one-sided account could operate injustice in one of two ways. It might leave the client unable or less able to prove the factual premise for a ground that has merit; conversely, it might allow a ground of appeal to be established more easily in a case in which, on the true facts, the ground lacks merit. Either is apt to divert the course of justice.

6. There was no impediment to the provision of an affidavit in the present case. The solicitor was available and had been provided with a waiver of client legal privilege signed by the applicant. However, for reasons not well explained in her correspondence, she did not provide an affidavit. She did, after being pressed, provide part of her file to the applicant’s new solicitor but she did not include conference notes and the like. She was slow even to answer questions asked by the Director of Public Prosecutions directed specifically to the grounds of appeal. Ultimately, literally on the eve of the hearing in this Court, she sent an email attaching a small number of emails and providing brief answers to the questions that had been posed for her attention. By the time that information was received, it was impractical for either the Crown or the applicant to consider or test those answers in any meaningful way.

7. Whatever else those exchanges revealed, they confirmed that two factors relevant to the sentencing task (assistance to authorities and the applicant’s mental health at the time of the offences) were not made known to the sentencing judge. Further, the evidence before this Court establishes that those were matters of substance warranting the conclusion that the sentencing judge, through no error on his Honour’s part, proceeded on the basis of incomplete information: cf Pym v R [2014] NSWCCA 182 at [84] (Fullerton J; Hoeben CJ at CL and Price J agreeing); cited with apparent approval in Tsiakas v R [2015] NSWCCA 187 at [44] (Beech-Jones J; Leeming JA and Johnson J agreeing).

8. As explained in Tsiakas at [42]-[45], interference with the sentence is warranted in such a case because the incompleteness of the evidence, so long as the material that should have been placed before the sentencing court is of real substance, demonstrates a miscarriage of justice. To recognise that the process can miscarry in that way is not inconsistent with the principle that an accused person is ordinarily bound by the way the case was conducted by his or her legal representatives. The ultimate question is whether the trial or sentencing process was fair. The focus on process was explained by Gleeson CJ in Nudd v R (2006) 225 ALR 161; [2006] HCA 9 at [7]:

“The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error. Process is related to outcome, in that the object of due process is to secure a just result. Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal trial is to be conducted has a public as well as a private purpose. An unjust conviction is one form of miscarriage. Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just. Another is a failure of process which departs from the essential requirements of a fair trial.”

9. For the reasons explained in that judgment at [7]-[9], the important task in assessing the fairness of the process is not to make a judgment of the conduct of the solicitor but to consider whether a miscarriage of justice resulted.

10. In the present case, the applicant having demonstrated at the very least that two matters of real substance favourable to his case were made known to the solicitor but not presented at the proceedings on sentence, the Crown very fairly and properly conceded that there had been a miscarriage of justice. That concession obviated the need for his counsel to cross-examine the solicitor or for this Court to consider her conduct of the proceedings.

11. Before leaving this topic, however, it is appropriate to record something about the obligations of a legal practitioner in such a case. The solicitor’s correspondence indicates that she was uncertain as to whether she should provide an affidavit in response to a request from the Director of Public Prosecutions. To put that issue beyond doubt, she should have. No issue of client legal privilege arose, the client having waived it. Her overriding duty was to the Court. As already explained, her response to the allegations would have been relevant to determining whether a miscarriage of justice had occurred. That is always an important question; it was important in the present case because it involved the liberty of a young man who is barely an adult and who (as is now clearly established by the evidence tendered by his current representatives) suffers from a mental illness for which he was unmedicated at the time of the offences.

12. The correspondence indicates the solicitor may have apprehended that she should be communicating with the new solicitor for the applicant rather than assisting the Crown. That was misconceived. As already explained, it is perfectly proper for the Crown to seek an affidavit in such cases. Indeed, it is arguably more appropriate for such evidence to be presented by the prosecutor, whose primary obligation in such a case is to assist the court, than by the lawyer making the allegation of incompetence. I accept that it might be confronting or uncomfortable for a lawyer to give an account of their conduct of a case in the face of an allegation of incompetence but it should go without saying that such feelings must give way to the interests of justice and the lawyer’s higher duty to the Court.

The question of remitter

13. A miscarriage of justice being common ground, there remained a contest as to the appropriate course for this Court to take in the circumstances.

14. The Crown submitted that the appropriate forum in which to test the evidence that ought to have been placed before the sentencing judge would be in newly constituted proceedings in the District Court, citing the observations of Harrison J in Rae v R [2019] NSWCCA 284. In that case, remitter was considered the appropriate course in circumstances where there was a need to test psychiatric evidence; and see Pym v R [2014] NSWCCA 182 at [75] (Fullerton J; Hoeben CJ at CL and Price J agreeing).

15. However, again taking a fair approach, the Crown did not object to the tender of a recent report from a psychiatrist giving an opinion as to the applicant’s current diagnosis and his likely mental state at the time of the offences. Furthermore, the prosecutor accepted that if, contrary to the approach contended for by her, this Court determined to proceed to resentence the applicant, it could do so on the strength of that report.

16. Separately, however, the Crown submitted that the matter should be remitted to the District Court because the evidence relating to the applicant’s assistance to police required “clarification”. Owing to the imminence of the expiration of the applicant’s non-parole period and the prospect that, upon resentence, he may already be eligible for release to parole, we took the view that we should allow the Crown to test the evidence in this Court rather than remitting the matter. The non-parole period fixed by the sentencing judge expires on 17 March 2021. There was a real risk that, on being remitted, the matter would not have been able to be listed for hearing in the District Court in time for a successful appeal to have any practical benefit for the applicant.

17. The evidence as to assistance is addressed in a confidential annexure to this judgment.

Circumstances of the offences

18. The applicant was 19 at the time he committed the offences and 20 by the time he was sentenced. At the time of the offences, he was on bail for five offences committed less than two weeks earlier, on 4 December 2018. By the time he was sentenced for the present matters, he had been sentenced for those offences. As those offences were all dealt with by way of conditional release order, the sentencing judge nonetheless considered it appropriate to extend Mr Momoa the leniency appropriate for a first offender.

19. The applicant was sentenced on the basis of a statement of agreed facts which may be summarised as follows.

20. The first offence was committed on 15 December 2018. The victim had been “playing the pokies” at a hotel. He had $400 cash in his wallet which he “took out from the poker machines” (the sentencing judge inferred that the victim’s gambling had been successful. However, there was no evidence as to how much money the victim had put into the poker machines that night). As the victim left the hotel, he was set upon by the applicant and two co-offenders (both juveniles) in a back laneway. One of them shouted “let’s get him”. One of the offenders punched the victim and pushed him to the ground. One of them removed his wallet while the other two held his arms. The offenders ran off in different directions. The victim chased after the applicant as he was the one who had ended up in possession of the wallet. However, while he was chasing the applicant, the victim fell and the applicant was able to escape without being apprehended.

21. The second offence was committed on 17 December 2018. The victim was a 35 year old man who was walking home with his 13 year old son after attending an English class. The applicant and two co-offenders followed them down the street. At a point close to the victim’s home, one of the offenders approached him from behind and grabbed him around the throat while a second pushed him over a small brick wall, causing him to fall onto the grass. Two of the offenders held the victim down, one with his hand around the victim’s throat, the other using his hands to cover the victim’s face. The victim’s son ran home to seek help. One of the offenders pointed a sharp object into the left side of the victim’s stomach while the others searched through his pockets and took his wallet. One of the offenders then pushed the victim forward and pulled a backpack off his shoulders, which they stole.

22. Police spoke to the applicant the following morning. He denied any involvement in the robbery and told lies as to his whereabouts the previous evening. He was arrested that day and has remained in custody since.

23. The sentencing judge assessed the objective seriousness of the first offence to be “somewhere equidistant between the middle and the bottom of the range”: at [14]. His Honour noted (in accordance with s 21A(2)(j) of the Crimes (Sentencing Procedure) Act) that the fact that the applicant was on conditional liberty was an aggravating factor to be taken into account in determining the appropriate sentence. His Honour assessed the objective seriousness of the second offence also to be equidistant between the middle and the bottom of the range while noting the aggravating factors of conditional liberty and also the fact that the offence was committed in the presence of a child: see s 21A(2)(ea).

Circumstances of the offender

24. The only material put before the sentencing judge as to the applicant’s subjective circumstances was a sentencing assessment report dated 29 November 2019 (tendered by the Crown) and a character reference from the applicant’s “Youth Leader” at Hillsong Church (the only evidence tendered on behalf of the applicant).

25. The solicitor did not call the applicant to give evidence at the proceedings on sentence. She provided brief written submissions primarily directed to the matters stated in the agreed facts and the sentencing assessment report. Her submissions included the following under the heading “Good prospects for rehabilitation”:

“His partner, Mother and Father are supportive. He has a child from his relationship with his partner and he was in regular contact with the child prior to being in custody. I am informed by his Mother that upon release his family will ensure he returns to his treating psychologist to continue his mental health treatment in the community.”

26. However, there was no evidence before the sentencing judge as to what that treatment would be, or indeed what mental health issue required treatment. In his remarks on sentence, his Honour noted that there was (according to the material before his Honour) no diagnosis of any mental health issue: at [36]. The judge further noted that, although the author of the sentencing assessment report recorded that the applicant was “regretful”, the applicant had not given evidence: at [40]. His Honour accepted that the applicant’s prospects of rehabilitation were reasonable but added “that being said, considerations of general and specific deterrence are fully engaged”: at [41].

Sentencing assessment report

27. The sentencing assessment report recorded that the applicant had reported a relatively normal childhood being raised in Samoa before the family migrated to Australia in 2007. He was living with his parents at the time of the offences and intended to return there upon his release to the community. The report noted that he has a child with his partner of three years and that the couple plan to live together with his family upon his release.

28. As to his vocational history, the report stated that the applicant completed year 10 and started year 11 but was suspended for disruptive behaviour. After leaving school he maintained employment for two years in a warehouse. He believed he would be able to return to that employment upon his release from custody but it was noted that this had not been confirmed with the employer.

29. The report noted that the applicant had a minimal history of antisocial behaviour which he attributed to poor decision-making and the use of illicit substances. He told the author of the report that he was under the influence of illicit substances on the days of the offences. He was focused on obtaining money to buy more drugs and did not think of the ramifications of committing the offences on his life or on the victims. He described his relationship with his partner as stable but that had broken down shortly before the offences after he entered “a period of instability and surrounded himself with negative peers who also engaged in the use of illicit substances”.

27. Under the heading “Mental health”, the report said:

“[Mr Momoa] reported immediately before his arrest he had been admitted to hospital following a psychotic episode.

He stated at the age of 17 he was diagnosed with depression and anxiety after a self harm attempt. At that time he was prescribed medication however reported he would often choose to use illicit substances rather than the prescribed medication in an attempt to control his mental health issues.

[Mr Momoa] is currently prescribed 10 milligrams of Olanzapine daily. Contact with Justice Health indicates [Mr Momoa] is mostly compliant with his medication regime.”

31. The report assessed the applicant to be at a “medium-low” risk of reoffending and to be suitable for community service work.

The applicant’s mental health

32. While the sentencing report referred to a history of mental illness, it did not provide proof of any diagnosis. The evidence put before this Court included documents obtained by the solicitor now acting for the applicant from his former solicitor. There was ample information within that material to indicate that the applicant did have a diagnosis of a mental illness at the time he was sentenced. A letter dated 10 July 2018 from the Early Psychosis Intervention Program (under the auspices of South Western Sydney Local Health District) addressed to a named doctor (presumably the applicant’s general practitioner) reported that the applicant had been formally discharged from the Program and into the doctor’s care. The letter stated that the applicant had a diagnosis of “first episode psychosis”. The judge’s finding that there was “no diagnosis of any mental health issues” in circumstances where the solicitor was in possession of such material was one of the matters underpinning the Crown’s concession that it was open to this Court to conclude there had been a miscarriage of justice. In any event, it is not necessary to go into the detail of those matters because, for the purposes of the appeal, the issue of the applicant’s mental health was fully addressed in a report from an experienced forensic psychiatrist, Dr Richard Furst. The Crown did not object to the tender of that report and accepted that, if the Court got to that point, it could properly be relied upon on resentence.

33. Dr Furst was asked to conduct an assessment of the applicant in order to determine whether or not he suffers from a mental disorder and whether any mental health issues that may have been relevant when considering the appropriate penalty for his offending were applicable on sentence.

34. Dr Furst recorded the following psychiatric history:

“He developed mental health symptoms in 2015-2016, including unstable mood, anger issues, hearing voices, irritability and a tendency towards depression. [Mr Momoa] said that the smallest thing would ‘set him off’, and the voices he heard at the time would be commanding him to hurt people, including his parents and his brother. He would also hear voices more frequently when he felt stressed. He believed people were ‘after him’ at times, suggestive of paranoid thinking.

He was assessed and treated at Liverpool Hospital’s Emergency Department and through the early psychosis intervention progam (EPIP). The letter from Ms Vu, his EPIP care coordinator, indicates [Mr Momoa] was treated with multiple antipsychotic medications between 2016-2017, namely Seroquel (Quetiapine), Risperidone and Olanzapine, indicative of the presence of a more enduring psychotic illness. His compliance with his antipsychotic medication was suboptimal, leading to the administration of 4-weekly depot injections of Olanzapine Relprevv, 300mg each intramuscular dose, which he took until July 2017. [Mr Momoa] was then switched back to oral Olanzapine tablets; however these were discontinued after only two weeks. Ms Vu, in her letter dated 10/07/18, indicated that [Mr Momoa] was symptom-free despite having discontinued his Olanzapine medication 12 months earlier.”

35. As to substance abuse, Dr Furst noted that the applicant reported a history of using cannabis from the age of 13 which became a regular habit from the age of 15. He said the applicant denied using any other illicit drugs on a regular basis but had tried MDMA on a couple of occasions.

36. The applicant reported a medical history of dizziness and headaches. During 2018 he was struggling to support his partner, their child and her family. He stopped taking his medication in the latter months of the year and began to struggle mentally in the period leading up to his offending in December 2018. The applicant told Dr Furst that he began to hear voices again during that time. After a period of conflict with his partner he had moved out from living with her family. An apprehended violence order for her protection was made against him during that period. He began seeing more of his friends in December including his juvenile co-offenders.

37. At the time Dr Furst examined the applicant (after he had been in custody for some time) he found him to be “lucid and logical” and showing no acute signs of psychosis. Dr Furst recorded that the applicant appeared motivated to avoid drugs, seek mental health treatment and return to work.

38. Dr Furst expressed the opinion that the applicant meets the criteria for diagnoses of schizophrenia and substance use disorder (cannabis). He noted that current medical evidence and research findings suggest that the use of cannabis in adolescence tends to precipitate schizophrenia at an earlier age than would otherwise have been the case but that individuals presenting with schizophrenia at a younger age are thought to be genetically vulnerable, the consensus view being that they would most likely have gone on to develop schizophrenia at a later stage in any case.

39. As to whether any mental health issues may have been relevant to the sentencing task, it is appropriate to set out Dr Furst’s answer in full:

“The available history from [Mr Momoa] and the other documents reviewed above indicate his schizophrenic illness was unstable throughout the latter months of 2018, including at the time of the offences in question before the court on 15 and 17 December 2018, including [Mr Momoa] indicating he was struggling to cope, had relapsed into experiencing auditory hallucinations that were derogatory and was having problems/conflict with his intimate partner and her family, especially in relation to their unreasonable financial expectations of him. In short, he had become mentally overwhelmed.

Apart from more acute symptoms of hallucinations and paranoid thinking, schizophrenia is a chronic brain disorder that generally results in reduced cognitive efficiency and impairment of cognitive function, including frontal-executive function. This tends to manifest in poor judgment, difficulty planning, difficulty with decision-making, impulsivity and problems with self- control. Such deficits tend to be magnified in people who have intellectual function that is lower than average to begin with, as appears to be the case with [Mr Momoa].

Apart from poor judgement stemming from likely cognitive deficits and related symptoms of his schizophrenic illness, [Mr Momoa’s] offending on 15/12/18 and 17/12/18 took place in company. It is also likely that the drug use he and his co-offenders were apparently engaging in at the time was the primary motivating factor for the offending in question.

Although drug use and negative peer association and [sic] not necessarily mitigating factors on sentence per se, there is a much higher rate of drug use and drug dependence amongst people with schizophrenia, thought to be the result of maladaptive attempts to ‘self-medicate’ but also because individuals with schizophrenia often gain more social acceptance amongst drug-using peers, which reinforces the acceptability of drug use and is a risk factor for drug-related criminal offending.”

40. The principles concerning the relevance of mental illness to the sentencing task are well known. They are helpfully summarised in the decision of this Court in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

41. By reference to those principles and on the strength of Dr Furst’s opinion, which is carefully reasoned and which I have no difficulty accepting, I would draw the following conclusions. First, the applicant’s mental illness was not causative. The primary motivating factor for the offences was drug use and the need for money to buy drugs. That, of course, is not a mitigating factor. However, the applicant’s choice to engage in the offending conduct was made at a time when his judgment was compromised by his schizophrenic illness. On that basis, I would accept that his moral culpability for the offences is reduced slightly on account of his mental illness.

42. More significantly, whereas the sentencing judge (in the absence of any evidence to suggest otherwise) concluded that considerations of general and specific deterrence were “fully engaged”, it is clear in my view that the applicant’s mental illness renders him an inappropriate vehicle for general deterrence. The evidence of Dr Furst establishes that the applicant is vulnerable to mental illness and requires careful medical treatment to support his rehabilitation.

43. His mental health has improved due to treatment while he has been in custody. It does not appear that his custodial sentence is weighing more heavily on him on that account. There are other factors making his time in custody difficult, primarily the fact that, as a young Pacific Islander, he finds that he is stereotyped by prison staff and other inmates as the kind of person who is violent and it is assumed that he is (or should be) “in a gang”. In a recent affidavit relied upon on resentence, he said he is not violent, he is not in a gang and he feels that no one in gaol gives him a chance.

44. Finally, in my view, the fact that the offences were committed at a time when the applicant was in poor mental health and Dr Furst’s favourable impression of the applicant’s present motivation to avoid drugs, seek mental health treatment and return to work reduce the significance of specific deterrence.

Other findings relevant to sentence

45. There has been no challenge to the primary judge’s findings as to objective seriousness.  I consider it appropriate to adopt those findings.

46. Further, I would adopt his Honour’s finding as to the existence of special circumstances warranting an adjustment to the statutory ratio of the non-parole period and the balance of term and would adopt the same ratio.

47. For the reasons set out in the confidential annexure to this judgment, I consider it appropriate to allow a combined discount of 35% on the basis recorded in that annexure.

Orders

48. Having reached the conclusion that the applicant should already be eligible for parole, we made orders on 4 December 2020, reserving these reasons.

49. Those orders were underpinned by the following conclusions. Except for the combined discount of 35%, and noting my findings as to the significance of the applicant’s mental health in the sentencing task, I would have sentenced him to a term of imprisonment for 3 years for the first offence and 4 years for the second offence.  Because of the combined discount, the indicative sentences were 1 year and 11 months for the first offence and 2 years and 7 months for the second offence.  I rounded those figures down slightly to achieve a practical result.

50. The orders made on 4 December 2020 were:

1. The Applicant is granted leave to appeal against the aggregate sentence passed at the Campbelltown District Court on 6 December 2019 for two offences of robbery in company contrary to s 97(1) Crimes Act 1900.

2. The appeal is allowed and the aggregate sentence is quashed.

3. The Applicant is sentenced to an aggregate term of imprisonment of 3 years and 8 months comprising a non-parole period of 1 year and 10 months commencing on 18 December 2018 and expiring on 17 October 2020 with a balance of term of one year and 10 months commencing on 18 October 2020 and expiring on 17 August 2022.

4. For the purpose of s 53A(2)(b) Crimes (Sentencing Procedure) Act 1999, the indicative sentences are as follows:

1. for the offence on 15 December 2018 - imprisonment for one year and 11 months;

2. for the offence on 17 December 2018 - imprisonment for two years and seven months.

5. The Applicant is eligible for release on parole immediately.

51. JOHNSON J:  The judgment of McCallum JA reflects my reasons for joining in the orders made on 4 December 2020.

52. R A HULME J: I joined in the making of the orders of the Court on 4 December 2020 for the reasons provided by McCallum JA.

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Decision last updated: 10 December 2020