OK v R

[2016] NSWCCA 318

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	OK v R [2016] NSWCCA 318
Hearing dates:	28 November 2016
Date of orders:	23 December 2016
Decision date:	23 December 2016
Before:	Hoeben CJ at CL at [1] Adams J at [4] R A Hulme J at [37]
Decision:	1. Leave to appeal granted. 2. Appeal against sentence dismissed.
Catchwords:	Sentence – juvenile offender – multiple offences – armed robbery in company – approach to sentencing youthful offenders – cognitive impairment – emotional immaturity – prospects of rehabilitation – whether sentence manifestly excessive.
Legislation Cited:	s6, Children (Criminal Proceedings) Act 1987 ss 97(1), 97(2), 188, Crimes Act 1900 (NSW) s44, Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571; HCA 37 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 KT v R (2008) 182 A Crim R 571; NSWCCA 51 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Markarian v The Queen (2006) 228 CLR 357; HCA 25 Muldrock v R (2011) 244 CLR 120; HCA 39 R v Ahmed [2007] NSWCCA 151 R v Franks [2005] NSWCCA 196 R v Henry (1997) 46 NSWLR 346; NSWCCA 111 R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159 R v SDM (2001) 51 NSWLR 530; NSWCCA 158
Category:	Principal judgment
Parties:	OK (Applicant) Regina (Respondent)
Representation:	Counsel: I Davidson SC (Applicant) M Cinque SC (Respondent)   Solicitors: Macquarie Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/388505
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court Date of Decision: 3 July 2015 Before: Culver DCJ File Number(s): 2014/00002164 2013/00388505

Judgment

1. HOEBEN CJ at CL:

I have read the comprehensive judgment of Adams J and I gratefully adopt his Honour’s summary of the facts and analysis of the evidence which was before the sentencing judge. I agree with his Honour that Grounds of Appeal 1, 2 and 3 should be dismissed.

2. Regrettably I cannot agree with his Honour’s conclusion in relation to Ground 4. The matters relied upon by his Honour in respect of that ground were all matters taken into account by the sentencing judge and appropriately evaluated. With all due respect to the analysis of his Honour, it does not reveal error on the part of the sentencing judge. It goes no further than to demonstrate that were his Honour sentencing the applicant, he would have imposed a lesser sentence. That is not a proper basis for interfering with the aggregate sentence imposed by the sentencing judge. This is particularly so given the seriousness of the offending and the important guidepost provided by the maximum sentences specified by the legislature for each offence. It follows that Ground of Appeal 4 has not been made out.

3. I also adopt the reasons of R A Hulme J and I agree with the orders which he proposes.

4. ADAMS J:

Introduction

On 3 July 2015 OK (who I will refer to, for simplicity, as the applicant), together with Mohamed Elsaj and Omar Zreika, was sentenced in respect of a number of offences of aggravated robbery as set out in the following table.

CAN/Seq. No.	Offence	Date and Description	Maximum Penalty	Indicative Sentence
H53369705/2 – Incident 2	Robbery whilst armed with a dangerous weapon s.97(2) Crimes Act	19.11.13 at a service station in Guildford in company (armed with a baseball bat) with Zreika (armed with a rifle) and an unknown male (armed with a long needle). $1000 cash and cigarettes stolen.	25 years imprisonment	4 years imprisonment
H53369705/3 – Incident 3	Robbery whilst armed with a dangerous weapon s.97(2) Crimes Act	2.2.13 at a service station in Yagoona (armed with a baseball bat) in company with Zreika (armed with a rifle) and an unknown male. $435 cash and $1010 worth of cigarettes stolen.	25 years imprisonment	3½ years imprisonment
H53369705/4 on Form 1 – Incident 5	Robbery whilst armed with a dangerous weapon s.97(2) Crimes Act	10.12.13 at 1.15am at a service station in Lansvale (armed with a baseball bat) in company with Zreika (armed with a rifle), Elsaj and an unknown male. $600 cash and $10,000 worth of cigarettes stolen.	25 years imprisonment	Taken into account on sequence 2
H53369705/5 on Form 1 – Incident 6	Robbery whilst armed with a dangerous weapon s.97(2) Crimes Act	10.12.13 at 2am at a service station in Yagoona (armed with a baseball bat) in company with Zreika (armed with a rifle) and an unknown male. $400 cash and cigarettes stolen.	25 years imprisonment	Taken into account on sequence 6
H53369705/6 on Form 1 – Incident 7	Robbery whilst armed with a dangerous weapon s.97(2) Crimes Act	17.12.13 at a service station in Lidcombe in company with Zreika (armed with a rifle), Elsaj and an unknown male (armed with a baseball bat). $900 in cash and $300 worth of cigarettes stolen.	25 years imprisonment	4½ years imprisonment
H53369705/7 on Form 1 – Incident 8	Robbery in company whilst armed with a dangerous weapon s.97(2) Crimes Act	26.12.13 at a service station in Lansvale in company with Zreika (armed with a rifle) and Elsaj, $400 cash and $3000 worth of cigarettes.	25 years imprisonment	4½ years imprisonment
H103286601/1 – Incident 9	Robbery armed with offensive weapon s.97(1) Crimes Act	29.12.13 at a service station in Potts Hill, armed with a screwdriver in company with Zreika and Elsaj (armed with a baseball bat). $400 cash stolen.	20 years imprisonment	3½ years imprisonment
H53369705/8 on Form 1 – Incident 10	Receive stolen propertys.188 Crimes Act	3.1.14 – Receiving proceeds of $3000 cash stolen during armed robbery by co-offenders at a service station in Granville.	10 years imprisonment	Taken into account on sequence 7

5. In summary, as the table shows, the applicant had committed six offences of robbery in company whilst armed with a dangerous weapon (the rifle carried by Zreika) contrary to s 97(2) , one offence of robbery armed with an offensive weapon (his screwdriver and Elsaj’s baseball bat) contrary to s 97(1) and receiving stolen property contrary to s 188 of the Crimes Act 1900 (NSW). The Court imposed an aggregate sentence of 11 years imprisonment commencing on 3 January 2014 with a non-parole period of 7 years. The applicant and his co-offenders all pleaded guilty at the earliest practical occasion and were afforded a 25% discount on their sentences.

Grounds of Appeal

6. The applicant seeks leave to rely upon the following grounds of appeal –

Ground 1: The sentencing Judge failed to properly apply the principle required for sentencing youthful offenders, in particular failing to take into account the applicant’s prior background, emotional maturity and cognitive impairment.

Ground 2: The sentencing Judge failed properly to apply the principles required in considering the applicant’s good prospects of rehabilitation in all of the circumstances in imposing the sentence on a youthful offender.

Ground 3: The sentencing Judge erred in her assessment of the objective seriousness of those offences involving the applicant.

Ground 4: In the structure and casting of the sentence as to its totality, the sentencing Judge erred in that the sentence was manifestly excessive.

Facts

7. Detailed agreed facts were tendered, the salient features of which were set out in the learned sentencing Judge’s reasons for sentence. The following narrative is taken from her Honour’s reasons and sets out each criminal incident in chronological order. It is necessary also to set out the circumstances of the offences (occurring on 3 October 2013 and 10 December 2013) involving the applicant’s co-offenders, but not the applicant.

8. Incident 1 – On 3 October 2013 at approximately 4:25am Mohamed Elsaj, armed with a baseball bat and his face covered with a balaclava, entered the shop at a service station in Guildford together with a second male armed with a large machete and also with his face covered by a balaclava. The shop was staffed by a lone attendant. After he opened the door to the office containing the till, the cash tray was removed and taken to an outside car by the second offender who then returned. An unarmed third offender entered the store. The second offender demanded the safe be opened but the attendant did not have a key. Elsaj joined the second offender and they held the attendant behind the counter with their weapons above their heads. The attendant was then pushed into an adjoining office, where Elsaj grabbed another till and a money box. Holding the attendant by the shirt, Elsaj asked if he would call the police. Although he replied “No”, Elsaj felled him with a blow to the side of his face with the baseball bat. The offenders fled in a car. The attendant managed to activate the alarm and called his boss. He was bleeding heavily from the head and suffered dizziness and had difficulty standing. He was taken to hospital and found to have a one centimetre laceration over the left frontal region of his head which required stiches. Approximately $450 was taken. None was recovered.

9. Incident 2 – On 19 November 2013 the attendant was working alone at a service station at Guildford. At about 12:30am three men arrived in a car (which had been stolen two days previously). The applicant carried a baseball bat, Zreika was armed with a rifle, and the third offender was armed with a long needle. They wore hooded jumpers with their faces and hands covered by items of clothing. The attendant hit the silent alarm and placed his hands above his head. Zreika held the gun to his upper torso and told him to sit in the corner. Zreika and the applicant remained near with their weapons whilst the third man demanded that the attendant open the till. Mr Zreika told him he would otherwise be shot. The attendant opened the till and the third man grabbed the money, about $1000, together with cigarette packets. The three offenders ran from the store and fled in a car. The attendant noted the registration plate and CCTV recorded the incident. Nothing was recovered by police. On 26 November 2013 the burnt out stolen car was found by police about 300 metres from the applicant’s home address.

10. Incident 3 - On 2 December 2013 a service station in Yagoona was robbed in similar circumstances. The only person in the store was the attendant and three offenders were involved: Zreika, wearing gloves, a hooded jumper with the hood pulled up and a t-shirt covering his face, was armed with a rifle; the applicant, similarly concealed, was armed with a baseball bat; and a third offender, wearing similar clothing, was unarmed. Zreika pointed the rifle at the attendant and, threatening to shoot him, demanded he open the security door into the counter area, which the attendant did and opened the till. Zreika told him he would not be hurt if he gave them all the money that was there. The attendant indicated this was the case, and after searching for more money, the three offenders took cash of about $435 and cigarettes valued at just over $1000 and left the counter area. Police were called and CCTV recorded the incident. Nothing was recovered.

11. Incidents 4 and 5 – On 10 December 2013 just after 1:00am, the buzzer on the front door of a service station shop at Lansdale sounded and the lone attendant saw on the security screen two men at the door, one (Elsaj) with a baseball bat. Zreika, wearing a hooded jumper with the hood pulled up and a scarf covering his face and carrying a rifle, tapped on the window at the side of the counter. He pointed the rifle at the attendant’s head. The attendant did not open the door and fled from the counter area, pushing a silent alarm to notify police. Elsaj and Zreika then fled. A few minutes later, Zreika, Elsaj, the applicant and a fourth offender went to another service station in the vicinity. All four wore hooded jumpers with the hoods pulled up and faces covered. The lone attendant was cleaning in the forecourt area. Zreika carried a rifle, the applicant had a baseball bat. The two others were unarmed. Zreika held the gun to the attendant’s head and told him to put his hands up. The attendant complied and was then pushed into the store and told to open the manager’s office. However, he did not have the key. Zreika grabbed him by the collar and held the gun to him whilst the other three men took about $600 from the till and cigarettes worth about $10,000. The attendant was asked to open the safe but could not do so. Zreika told the attendant to stay outside the service station so he could not call the police and the offenders left in a motor vehicle. (A male witness was at the service station pumping petrol at the time of robbery.) The attendant pressed the silent alarm. CCTV recorded the incident. Nothing was recovered.

12. Incident 6 – About an hour after incident five, Elsaj approached the locked front doors of another service station attended by a single employee. His face was not concealed. He purchased a drink and had a conversation with the attendant. About fifteen minutes later Elsaj approached the locked front doors which the attendant unlocked. Three other men with their faces covered ran into the store past Elsaj yelling at the attendant. Elsaj left the store. One of the men was Zreika, armed with a rifle and another, the applicant with a baseball bat. They demanded the attendant give them the money and he handed over the till containing approximately $400. They demanded more money but were told there was no more. They demanded cigarettes and the attendant opened the cigarette cabinet and handed over 10 or 12 packs, each worth about $25. Some dropped on the floor as the offenders fled. The attendant called the police. The incident was recorded by CCTV.

13. Incident 7 – On 17 December 2013 at about 3:30am the applicant approached a locked door of a service station. One attendant was present. He did not conceal his face and walked around the store without purchasing any items. Several minutes later, Zreika, armed with a rifle, another man armed with a baseball bat and Elsaj, who was unarmed, entered the now unlocked door. The three men ordered the applicant to lie on the ground in a staged attempt to conceal his involvement in the robbery. The firearm was pushed towards the attendant’s face and he was required to open the till. Cigarettes worth about $300 and about $900 in cash were taken and the attendant was forced to the ground. The three men left the store whilst the applicant got up and casually walked out. The incident was recorded on CCTV. Nothing was recovered.

14. Incident 8 – This offence occurred at about 8:30am on 26 December 2013 when an attendant working at a service station in Lansvale was approached by a regular customer and told that three men wearing masks were behind the building. The attendant locked the front door. About ten minutes later a young person approached the door holding a set of car keys and the attendant unlocked it to permit entry. Within seconds, three men, Zreika, Elsaj and the applicant, with their faces covered ran into the shop towards the counter pushing the young person out of way. She ran from the store. Zreika was armed with a rifle, the applicant and Elsaj were unarmed. The attendant pressed the duress alarm and fled into the toilets, locking the door and telephoned the police. The offenders jumped the counter and stole $400 from the cash register and about $3000 worth of cigarettes, none of which have been recovered. The duress alarm had locked the front glass doors of the store, trapping the offenders inside and the attendant could hear them calling out to him to open it. Zreika attempted to smash the doors by hitting them with the butt of the rifle, which then broke. He then used a fire-extinguisher to shatter the window and the three fled, being driven away by the young person in Elsaj’s mother’s car. This was captured on CCTV.

15. Incident 9 – On 29 December 2013 at 4:45am, whilst a service station at Potts Hill was attended by two employees, Zreika approached the store unarmed and with his face unconcealed. He spoke to one of the employees and then waved to someone outside. The applicant, armed with a screwdriver and wearing a hooded jumper with the hood pulled up, and Elsaj, with his face covered by a shirt and armed with a baseball bat entered. Elsaj chased one of the employees into the kitchen area and threatened to kill him. The other employee ran out of the store and hid underneath a nearby vehicle. As this was happening, Elsaj and the applicant jumped over the security wires at the counter and took $400 from the cash register. The applicant left the screwdriver on the counter and the offenders fled. The employee activated the duress alarm, ran outside, and hid until police arrived. Again, the incident was recorded on CCTV. Nothing was recovered.

16. Incident 10 – At about 2:55am on 3 January 2013 an attendant working alone at a service station walked outside to put rubbish out and heard someone call out “Hey”. He saw three men walking towards him. Two ran towards him and the other ran to the door of the shop. All three concealed their faces with various items of clothing. Zreika, holding a baseball bat, placed the employee in a headlock and one of the others said, “Give us the money, we won’t hurt you if you do”. Zreika pushed the attendant into the store, accompanied by Elsaj and the third male. He ordered the attendant to enter the security code giving access behind the counter. The offenders then walked past the till into the rear office. One demanded money and the attendant handed over a bag containing about $3000 in cash. He pressed the silent alarm and dialled 000. The vehicle in which the three offenders fled was later recovered burnt out a short distance from Elsaj’s home. The incident was recorded on CCTV. A short time after the robbery, the applicant went to Mr Zreika’s home, where the proceeds were split between the four males. The applicant knew the money was stolen. It was here that the offenders were arrested by police.

17. The applicant participated in an interview in the company of a support person and made admissions to some of the allegations of robbery, identifying himself in CCTV still-images from six of the robberies, but declining to identify anyone else. He said he believed that the firearm did not contain bullets. He knew the other offenders from school and also knew the young person involved in incident eight. Each of the offenders have been in continuous custody since their arrest.

Subjective Features

18. The applicant had no prior criminal history.

19. The sentencing Judge summarised the applicant’s subjective circumstances briefly but no complaint is made, as such, that her Honour omitted a significant feature. At the same time, it will have been seen that the first ground of appeal is based upon the argument, in substance, that her Honour failed to take into account the applicant’s subjective case. Mr Davidson SC for the applicant, plainly enough, relied on the material that was tendered in this regard and which was not the subject of controversy. This comprised a psychological report dated 24 March 2015 by Ms Patterson of the Wollongong Juvenile Justice Office and a background report dated 24 March 2015 by Ms Sarah Abusharif, the Assistant Manager (Clinical) at the Fairfield Office of Juvenile Justice NSW. (What follows is drawn from these reports but I have mostly avoided using quotation marks, for ease of reading.)

20. The background report shows that the applicant was some months short of his 18th birthday when the offences in which he was involved commenced. He had been remanded in custody at first at a juvenile justice centre but, a month later, was transferred (at his request) to Corrective Services at the Silverwater Remand and Reception Centre because a large number of his close family, including his father, were imprisoned there and he felt that they would support him in the prison environment.

18. The applicant is the eldest of six children of his parents, who separated some four or so years ago, due to domestic violence perpetrated by his father, forcing his mother and his younger siblings to seek shelter at a refuge and leaving the applicant temporarily in the care of his father. He later joined his mother and siblings at the address where he was living at the time of his offences. It appears that the applicant has a very close relationship with both his parents and, despite his father’s criminal activities and minimal contact with him, he provides an influential role model. It appears that the applicant’s father and many members of his extended family are criminally entrenched, the former being in custody as at March 2015 on serious charges and a large number of his uncles and cousins either in gaol or on court orders in the community. The applicant reported that it was his mother’s opposition to his father’s involvement in criminal activities that lead to the domestic violence at the hand of his father. He has deep respect for his mother but is torn between his parents. The applicant went to high school, ceasing attendance close to the end of year ten but being eligible for the school certificate. He misbehaved at school and his performance was not up to an acceptable standard. Cognitive assessment made during his schooling indicated that the applicant met the criteria for classification as mildly intellectually impaired, although, when he returned to mainstream school in 2011, he was reported to be functioning well. He enrolled in a TAFE course after he left school but became disinterested and dropped out to seek employment. For three months he worked for an uncle but became frustrated with the type of work he was doing. He reported that he wished to pursue an apprenticeship and would be able to obtain his uncle’s assistance for this purpose. Most of his friends had either personal problems or troubles with the law and, although he felt that negative peer association had been one of the major contributing factors to his offending, he denied that he was influenced by them into committing the offences.

19. Psychometric testing measured the applicant’s verbal comprehension, perceptual reasoning, working memory and processing speed. The score on the Verbal Comprehensive Index (BVCI) reflected his struggle with verbal concept formation and reasoning as well an incorporating knowledge from the environment. His score fell within the borderline range and his performance was estimated to be better than or equal to 5% of his peers. Ms Patterson concluded that this “highlights [that the applicant] continues to have difficulty with verbal fluency and verbal memory compared to his same aged peers”. The applicant’s score on the Perceptual Reasoning Index fell within the average range, being better than or equal to 25% of his peers, indicating this is a relative strength area for him in comparison with his other abilities. His score on the Working Memory Index (assessing ability to temporarily retain information in memory, perform some operational manipulation with it and produce a result), was well within the low-average range, being better than or equal to 23% of his peers, which suggested that he is likely to have difficulty with coding and retaining newly learned auditory information. The Processing Speed Index Assessment fell within with average range and better than or equal to 30% of his same age peers. This was the applicant’s highest score compared to other indexes and, Ms Patterson concluded, he was “unlikely to have any difficulty with learning at the same pace as similar aged peers”. The applicant’s overall IQ score fell within the low-average range, being better than or equal to 12% of his same aged peers, although higher scores for subtests involving non-verbal skills had led to a higher overall IQ score. His lowest score was in the verbal comprehension category, as would be expected with his documented history of expressive and reactive language difficulties. Those difficulties were identified in 2002 but speech theory and placements within supportive educational classes enabled gradual improvement, which had increased his IQ scores over that time but, Ms Patterson noted, there were remaining discrepancies between verbal and non-verbal skills. In summary, the applicant’s current IQ score is not diagnostic of mild intellectual disability (as in the past) but there is a clear difference between his verbal and non-verbal skills, which implies that his IQ is likely to be higher than assessed but the score was reduced because of ongoing difficulties with expressive and receptive language. Ms Patterson concluded her report as follows –

‘Clinical observation whilst in custody and during schooling support the notion that [the applicant] has some delay in responding verbally leading to concerns that he may have a communication disorder. He is likely to struggle with understanding spoken and written language. This issue can be improved with specific programs which focus on therapies that might improve his speech and general verbal skills. This might aid him in negotiating his way out of future criminal activities, including refusing to co-operate with family members who are known criminal associates, and sourcing his efforts into a domain that requires less verbal skills and greater non-verbal skills…. He has some pro-criminal beliefs that require intervention, however will struggle with cognitive programs as a result of his receptive and expressive language difficulties.’

23. In her report, Ms Abusharif noted the report from Cobham Juvenile Justice Centre said that the applicant had “strived to better himself through counselling and education…prides himself on personal fitness and helping other detainees improve their fitness…is a mature young person who tries to lead by example with his peers, adopting a mature attitude to custody, not involving himself in immature behaviour or issues that do not concern him”. She referred to the applicant’s admission that negative peer association had been one of the major contributing factors to his offending, although he denied he had been influenced into committing criminal offences. He believed he was in control over his choice of friends and activities. Ms Abusharif thought the applicant was naïve and unrealistic in his claim to make independent decisions when in the company of his friends, adding –

“Based on his potential cognitive limitations, and observation of his behaviour and his interaction with others during his remand at Juvenile Justice Centres, all parties involved in the case management of [the applicant] shared the same concern regarding his disadvantages. [The applicant] may have difficulty competing with his peers on an equal basis and his bravado façade may be part of his strategy to help him maintain the relationships.”

Under the rubric, “Personality and Behaviour”, Ms Abusharif noted –

“From the early days of his remand, [the applicant] displayed behaviour such as hesitant speech, relatively poor verbal skills and occasional inconsistent expression of thoughts, that suggest some form of impairment. Enquiries by his previous Juvenile Justice Officer…found that [he] had been cognitively assessed at a young age (in 2002) as having a mild intellectual disability….[Follow] up assessment in 2006 and 2009 concluded that [he] met the criteria…for classification by the Department of Education and Communities as Mildy Intellectually Impaired valid to 2010. Thereafter, it was reported that [he] appeared to be functioning well.”

The applicant objected to any suggestion that he is disadvantaged and may have been manipulated into committing the offences because of a disability. However, Ms Abusharif thought, “there may be a strong probability that [the applicant’s] cognitive limitations had placed him in a disadvantaged position where he was taken advantage of and/or limited his skills in handling and controlling risks of offending”.

24. Ms Abusharif thought that the applicant demonstrated little understanding of the seriousness of the offences he committed and presented with “some cognitive distortions, stating that if he does not think about whether his actions are right or wrong, and as long as he does not hurt anyone, it will be alright”. He pointed out that, although he used weapons to scare the victims, he did not physically hurt anyone and had not thought about the psychological impact of the offences on them. The applicant said that it was difficult for him to relate to the feelings of the victims or fully understand the extent of loss he had caused to others, but he felt ashamed for causing trouble for his mother and acknowledged the real burden he had placed upon her. He said he was prepared to face the consequences of his offences “as he now knows that it is wrong to do crimes”. He said that he always wanted to be a good person and, although he idolised his father, he was not proud of his criminal history or of his own criminal behaviours and said “he will change to be a good person. Ms Abusharif commented that the statement that “he can simply change” was unrealistic, but noted that he later agreed that he needed help and would participate in an offence-focused program in custody after his matters are finalised.

25. The applicant also gave evidence in his sentence proceedings in which, amongst other things, he said that he ceased taking drugs when he came into custody but, at the time of the offences, he said he “wasn’t in my state of mind”, I think meaning that he was affected by drugs. Indeed, he went so far as to say that he didn’t remember the details of his being armed with a baseball bat and that someone else was armed with a firearm, “because I wasn’t in my right state of mind, so I don’t remember anything”. He said that that was his “mentality now and so when I get out I’ll stick to the same”. The reason he committed the robberies was to get money to buy drugs. He admitted that when there was a gun at the robbery he did not know whether it was loaded or not. The effect of what he said to police when he was interviewed on his arrest was that he believed that the rifle was not loaded but when these answers were pointed out, he said that he did not remember. This shows a degree of candour. He expressed an appreciation of the seriousness of the offences and the impact they had on the victims. The sentencing Judge concluded that the applicant’s steps towards rehabilitation, abstinence from drugs, youth, prior good character and remorse enhanced his prospects of rehabilitation.

Discussion

26. It seems to me that the matters relevant to the applicant’s subjective case, which I have set out in some detail above, were, one way or another, referred to in the sentencing Judge’s reasons for sentence, albeit somewhat briefly. It is apparent, from the argument developed during the hearing of the appeal, that the particulars in the first ground of appeal alleging a failure to take into account the applicant’s deprived background, his emotional maturity and cognitive impairment depended, in substance, upon the contention that the sentence itself was so severe as to indicate this failure. It should be noted, however, that, although the ground of appeal asserts that the applicant had a “deprived background”, the histories contained in the reports to which I have referred do not justify this conclusion. Certainly, his father’s influence could not have been a good one and there were occasions of violence such as to lead his mother and other siblings to leave the home for a short time and go to a refuge, but it seems that, after a relatively short time the applicant was reunited with his mother in other accommodation. The applicant told Ms Patterson that, although he was exposed to drug use whilst in his father’s care, his mother did not support any criminal beliefs and had actively sought to minimise his father’s influence on him. Certainly, the applicant had commenced using cannabis in early 2011, more heavily after he left school at the end of that year and went on to use cocaine and Xanax. Nevertheless, there is no suggestion that he or, for that matter, his siblings, were ever themselves the subject of domestic violence or abuse and although he had a difficult time at school and was adversely affected by his intellectual impairment, it is difficult to see how his upbringing, though with real problems, was particularly significant in terms of his offending. Certainly, there is no evidence of the “profound deprivation” to which the plurality referred in Bugmy v The Queen (2013) 249 CLR 571; HCA 37 at [42]–[44].

27. In his written submissions under this ground Mr Davidson acknowledged the sentencing Judge’s reference to the evidence of the emotional immaturity of the applicant and the conclusion that the adult offenders played the major role in the offences in which the applicant was involved. However, he submitted that her Honour did not take this into account as another reason why R v Henry (1997) 46 NSWLR 346; [1997] NSWCCA 111 could not be rigidly applied in relation to the applicant, whatever its utility in relation to the adult offenders. The most obvious response to this submission is that there was no “rigid” application of Henry by her Honour. In her reasons, she set out with some detail the considerations referred to by Spigelman CJ at [99] et seq, noting that the judgment was applicable to juvenile offenders, (such as the applicant) who were dealt with according to law and concluded that “the guideline in such matters provides a ‘sounding board’ that can be taken into account along with the principles of s 6 of the Children (Criminal Proceedings) Act1987 and general sentencing principles for the age of the child”, citing R v SDM (2001) 51 NSWLR 530; NSWCCA 158 for this proposition. Her Honour then, in relation to each offender, analysed the circumstances by reference to the factors enumerated by the Chief Justice. It is clear from her Honour’s outline of the subjective circumstances concerning the applicant, which included reference to his developmental issues and immaturity, that there was no rigid application, as submitted, of the guideline. The criticisms of her Honour’s approach in this respect are without substance.

28. So far as ground two is concerned, as the written submissions make clear, the essential complaint is not so much the sentencing did not refer to the good prospects of rehabilitation of the applicant but that her Honour gave too little weight to those prospects having regard to the significant element that rehabilitation must play in dealing with the sentencing of young offenders: see, for example, SDM per Woods CJ at CL at [19] and KT v R (2008) 182 A Crim R 571; NSWCCA 51 at [22]-[23] per McClellan CJ at CL. The sentencing Judge referred specifically to the provisions of section 6 of the Children (Criminal Proceedings) Act 1987 and KT. (By way of balance it might be worth noting the observation of Simpson J in SDM at [47]: “armed robbery is classically an offence of the kind in which the leniency otherwise attracted by youth may be diminished”). The only matter cited by Mr Davidson SC as having being omitted from the sentencing Judge’s reasons under this head is the passage from the background report of Ms Abusharif referring to the positive remarks from Cobham (which are set out above). Although it is true that her Honour did not refer to this particular language, she mentioned his “steps towards rehabilitation” which was the essential subject matter to which those remarks referred. It was not necessary to set out or detail any particular passage in the reports; in my view it is clear that her Honour took the reports as a whole into account. This criticism should be rejected.

29. Mr Davidson’s submissions in respect of this ground also contained the contention that the applicant’s remorse, and what was submitted to be strong evidence of good prospects of rehabilitation, should have led to a greater discount than 25% being afforded. He submitted, also, that the fact (as noted by her Honour) that the applicant identified himself in CCTV images from six of the robberies, although it was in fact very difficult to identify him from the images, “emphasised his willingness to cooperate with the authorities even before his guilty plea was provided at the earliest opportunity…[and] warranted more credit than the accepted 25% discount for an early guilty plea…”. There is no merit in this argument. Firstly, so far as rehabilitation prospects are concerned, this is a matter necessarily to be taken into account in determining the sentence from which the discount is then to be allowed (and, following determination of the overall sentence, will often have a role in assessing the presence and significance of special circumstances for the purpose of determining the appropriate parole period). They play no part in the assistance to the administration of justice for which, as a matter of public policy, quite apart from the personal merits of an offender, the discount is allowed for a plea of guilty. As to the second argument pointing to the applicant’s self-identification, this might have substance if he had been willing to identify his co-offenders whose images were also indistinctly shown on the CCTV recordings. As her Honour noted, he declined to identify anyone but himself. In the circumstances, the applicant’s self-identification gave no basis for affording him any greater discount than the 25% allowed by the sentencing Judge. Mr Davidson SC also submitted that the sentence imposed on the applicant was crushing and would have the effect of destroying such prospects as there may be of rehabilitation and reform as were present in the applicant’s case. This is an argument referrable to the contention that the sentence was unreasonable or plainly unjust (Markarian v The Queen (2006) 228 CLR 357; HCA 25 per Gleeson CJ, Gummow, Hayne and Callinan JJ at [25] and appropriately discussed in connection with ground four). Otherwise, I would reject this ground.

30. I now come to ground three, concerning the assessment of the objective seriousness of the applicant’s offences. Dealing with this aspect, the sentencing Judge observed that offences “of this nature are generally serious, reflected by the statutory guideposts” and went on to identify the features of each offence. It is not submitted that, in doing so, her Honour erred. She then went on to consider what she described as the “criminality” involved in the offences, in this context referring to Muldrock v R (2011) 244 CLR 120; HCA 39, Markarian v The Queen (2006) 228 CLR 357; HCA 25 and R v Henry (1997) 46 NSWLR 346; NSWCCA 111, undertaking a detailed discussion of the factors identified in the judgment of Spigelman CJ at [99] and [162]. Her Honour noted that the Henry guideline should be taken into account in assessing the seriousness of an offence under s 97(2) (armed robbery with a dangerous weapon) citing R v Ahmed [2007] NSWCCA 151 and R v Franks [2005] NSWCCA 196 and noting (as I have already mentioned) that Henry was also applicable to juvenile offenders who are dealt with according to law. It is not necessary for present purposes to set out in full the matters to which her Honour referred. It was not and could not be submitted that this analysis erred in any respect. Her Honour then moved to assessing the incidents in light of the Henry analysis, dealing with each of the identified features: age of the offender; criminal history; weapon; degree of planning; degree of violence and any threat; vulnerability of the victim and the amount taken. Her Honour then identified the role of each offender, derived from the agreed statement of facts (to which I have already sufficiently referred), listing, in particular, what the applicant had done. In comparing the different roles of the offenders, her Honour noted that the applicant’s involvement was the least, having held a weapon at the victim only once (the second incident) and observing that, although only a year younger than his co-offenders, he presented “as being far less dominant, or having less initiative in the perpetration of the offences”. Her Honour concluded that the objective gravity of the offence under s 98 committed by Mr Elsaj in incident one was “within the mid-range level of seriousness”. It was submitted by Mr Davidson SC that it followed that the offences committed by the applicant under ss 97(1) and 97(2) by virtue of his involvement in incidents two, three, seven, eight and nine should have been found to be at a lesser level of seriousness than mid-range because incident one involved an actual wounding. Although, in respect of the applicant, her Honour’s reasons contain a detailed analysis of the circumstances of the offences, which she described as “very grave indeed”, there was no reference to the middle (or any other part) of the range of objective seriousness. I assume that, apart from the limited utility of such a description, this was because no standard non-parole period applied to him. It seems to me that the view her Honour took of the seriousness of the applicant’s offences appears sufficiently from her analysis and the description of gravity to which I have referred. Mr Davidson submitted that there were a number of factors which reduced the objective gravity of the applicant’s offences not withstanding their “necessarily serious nature”. He referred to the “lesser period of offending” than was the case with the co-offenders. However, this is plainly not a matter going to the assessment of objective seriousness. He submitted that “to some extent” the learned sentencing Judge’s reasons “involved an inappropriate ‘lumping’ together…of the conduct of [the applicant] with that of his adult, though also youthful, co-offenders”. There is no evidence of this in her Honour’s reasons, which clearly identify the particular conduct of the applicant as distinct from those of the other offenders. It was relevant to also note, in sentencing the applicant, the conduct of his co-offenders since he was engaged in a common enterprise with them and was not only criminally but also morally culpable for their actions in committing the crimes. Mr Davidson submitted that the description of the crimes as “very grave indeed” was exaggerated and, though they were serious, they did not justify this description. I am unable to agree with this submission. It seems to me that the facts fully justified her Honour’s description and I do not accept the implicit submission that her Honour, in using this, assessed the seriousness of the offences as greater than middle of the range (whatever such a measure might indicate). At all events, I am unpersuaded that her Honour’s language demonstrated error.

26. It is contended in respect of ground four, that the aggregate sentence was manifestly excessive. Mr Davidson’s submission under this head essentially pointed to the subjective features relevant to the applicant, to which I have already referred. He also relied on the Judicial Commission’s statistics as to sentences for offences under s 97. I do not proposed to deal with them in detail since it is practically impossible to relate those statistics to the multiple offences committed here by the applicant. In some other cases these statistics will be helpful and informative but this is not one of them. I am unpersuaded that the indicative sentences nominated by the sentencing Judge are manifestly excessive, even given the significance of the subjective features affecting the applicant. However, the crucial question here is whether the aggregate sentence, which represents a substantial degree of concurrency in the indicative sentences, is manifestly excessive.

Determination

32. It seems to me that the developmental and psychological problems identified by the psychologist and referred to in a different context in the background report demonstrate that the applicant suffered from real problems, for which he was not responsible, and in respect of which he had only limited insight. This is not a matter susceptible of arithmetical calculation, but the comparison with his peers which was demonstrated in the psychometric assessments is, to my mind, highly significant. The level of problematic disability, of course, is imprecise but my reading of the material persuades me that it is not marginal; that it is measurable at all demonstrates its significance to a substantial degree in the context of the influences on his life of his father and other relations and the co-offenders, in particular Zreika whose role appears to very much one of leadership. The problems work in two significant respects: first, there is the extent to which he understood (commensurate with his chronological age) the seriousness of his offences and the influence which his father and relations and co-offenders had on him (despite his denials, which are unconvincing but which he might well believe), going to the issue of moral culpability; and, secondly, the public interest in rehabilitation, one of the important consequences of which is to lessen the significance of personal and general deterrence in favour of a sentence which is designedly not be so extended as to lock him into a criminal milieu and a fixed criminogenic frame of social and personal reference, all the more likely in light of his demonstrated psychological issues and his age, as the sentence is longer.

33. I am persuaded that although the learned sentencing Judge (with respect, rightly) concluded that these issues had “rendered him of less maturity than his co-offenders…[and his] moral culpability…of less gravity than his co-offenders”, it was of itself (and not by virtue of comparison) such as to warrant a substantially shorter sentence than would have been appropriate had he been an adult without a disability. With respect, it seems to me that the aggregate sentence reflects a sentence of an order that would have been appropriate in the latter case, but did not sufficiently, by a considerable margin, reflect the considerations to which I have referred and the public policy that applies in these cases.

34. Standing back, as one must, and considering the totality of criminality (over a relatively short period) and the considerations applicable to youthful offenders, in particular those with the kind of developmental problems of the applicant, I am persuaded that the sentence was unreasonable or plainly unjust. It seems to me that the sentence imposed is that appropriate for, or within the range of, sentences applicable to a normal adult. I would therefore grant leave to appeal and allow the appeal.

Re-sentence

35. The relevant objective circumstances and the applicant’s subjective features do not require further discussion. The affidavit of the applicant’s uncle was tendered in the event that re-sentencing was called for. He deposes that the applicant has expressed to him his remorse and regret for his actions. It is proposed that the applicant, upon release will reside with him and his family and be employed in his building business. He undertakes to assist the applicant to obtain trade qualifications or further his education. It is always a positive factor for rehabilitation that an offender will have the support of a stable and law abiding family on his or her release and the real prospect of worthwhile employment. Taking into account the matters referred to by the sentencing Judge in relation to this matter, I am satisfied that the applicant’s prospects of rehabilitation are good, although one cannot be confident that the period of imprisonment (which must necessarily be some years) will do much to enhance them. It seems to me that her Honour’s finding of special circumstances was justified and that the period of parole should be longer than that provided by the application of the statutory ratio in s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) given that the applicant will spend a lengthy period of significantly maturing years in prison and the particular needs demonstrated by his psychological and related drug abuse issues.

36. I consider the indicative sentences specified by her Honour to be appropriate and have adopted them. I propose an aggregate sentence of 7 years imprisonment with a non-parole period of 4 years commencing 3 January 2014. He will be eligible to be released on parole on 2 January 2018.

37. RA HULME J: I agree with Adams J that Grounds 1 to 3 are not made out. They were directed to discretionary assessments by the primary judge involving no error of principle. In any event, the primary focus of the appeal was upon Ground 4 which contends that the aggregate sentence is manifestly excessive.

38. It is important to acknowledge that in Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15] it was said that:

“[A] court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic [House v The King [1936] HCA 40; 55 CLR 499]. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.”

39. In this case the learned sentencing judge sentenced each of OK and his co-offenders Zreika and Elsaj at the culmination of the one sentencing hearing. She appropriately discriminated between them, both in terms of the individual offences for which they were to be sentenced and in respect of their subjective cases. She took into account all relevant considerations concerning OK whose subjective case warranted a significant diminution of his sentence. Nevertheless, he stood to be sentenced for a series of criminal offences of substantial objective seriousness.

40. The indicative sentences for each of the five offences (three of which involved taking a further offence into account) were relatively modest and appropriately struck a balance between the undoubted seriousness of the offences and OK's subjective case.

41. It was necessary for her Honour to reflect the overall criminality of the offending in the aggregate. She acknowledged this uncontroversial sentencing principle (she discussed authority including Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41) but indicated as well that she was mindful not to impose a sentence that would be "crushing" in the sense described in R v MAK, R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [17].

42. The overall criminality was the applicant's participation in five offences of robbery whilst armed with a dangerous weapon (maximum penalty 25 years); two offences of robbery whilst armed with an offensive weapon (maximum penalty 20 years); and one offence of receiving stolen property (maximum penalty 10 years). Indicative sentences between 3½ years and 4½ years in total amounted to 20 years. The aggregate term of 11 years indicates that her Honour factored in a substantial degree of concurrency.

43. In the end, while I acknowledge the force of the various matters which have moved Adams J to conclude that a lesser sentence is warranted, I am afraid that I cannot agree.

44. I propose the following orders:

1.   Leave to appeal granted.

2.   Appeal against sentence dismissed.

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Decision last updated: 23 December 2016