Owens v R

[2017] NSWCCA 16

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Owens v R [2017] NSWCCA 16
Hearing dates:	31 January 2017
Date of orders:	24 February 2017
Decision date:	24 February 2017
Before:	Bathurst CJ at [1] Johnson J at [2] Fagan J at [89]
Decision:	Leave to appeal granted. Appeal dismissed.
Catchwords:	CRIMINAL LAW - sentence appeal - robbery in company contrary to s.97(1) Crimes Act 1900 - suggested error in use of R v Henry guideline - suggested error in double counting fact that offence committed in company - claim that sentence manifestly excessive - no error demonstrated - appeal dismissed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Criminal Procedure Act 1986
Cases Cited:	Legge v R [2007] NSWCCA 244 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 19 Markarian v The Queen [2005] 228 CLR 357; [2005] HCA 25 Porter v R [2008] NSWCCA 145 R v AB (2011) 59 MVR 356; [2011] NSWCCA 229 R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 R v Lesi [2005] NSWCCA 63 R v Murchie (1999) 108 A Crim 482; [1999] NSWCCA 424 R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130 R v Stanley [2003] NSWCCA 233 R v Tran [1999] NSWCCA 109 Rudolf v R [2016] NSWCCA 313
Texts Cited:	---
Category:	Principal judgment
Parties:	Shayden Owens (Applicant) Regina (Respondent)
Representation:	Counsel: Mr M Adamo with Mr G Beveridge (Applicant) Mr E Balodis (Respondent)   Solicitors: Nyman Gibson Miralis (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/98987
Publication restriction:	---
Decision under appeal	Court or tribunal: Sydney District Court Date of Decision: 29 February 2016 Before: Garling ADCJ File Number(s): 2014/98987

Judgment

1. BATHURST CJ: I agree with the orders proposed by Johnson J and with his Honour’s reasons.

2. JOHNSON J: The Applicant, Shayden Owens, seeks leave to appeal against sentence imposed in the Sydney District Court on 29 February 2016 for an offence of robbery in company contrary to s.97(1) Crimes Act 1900.

3. The maximum penalty for an offence under s.97(1) is imprisonment for 20 years. There is no standard non-parole period.

4. Following a plea of guilty, the Applicant was sentenced to imprisonment for two years and six months commencing on 29 February 2016, comprising a non-parole period of 18 months and a balance of term of one year.

Facts of Offence

5. What follows is drawn from the Statement of Agreed Facts which was signed by the Applicant on 7 October 2015 and was tendered at the sentencing hearing before Garling ADCJ. Some additional matters are included and are not controversial.

6. On the morning of 5 July 2013 (the Applicant’s 19th birthday), he appeared before the Mount Druitt Local Court upon a charge of driving with the low-range prescribed concentration of alcohol. Following a plea of guilty, the Applicant was fined $300.00 and was disqualified for three months.

7. On that evening, the Applicant was drinking with friends at licensed premises at West Ryde. At about 11.20 pm, the Applicant and two males left the licensed premises and walked across West Parade in the direction of the West Ryde Railway Station.

8. At about this time, the victim - a young man then aged 22 years - left the West Ryde Railway Station (having travelled there by train) and was walking on the roadway when he saw the Applicant and the other two males approaching him. The victim was approached by the first male who asked him for a cigarette. The victim offered a tobacco pouch and cigarette papers. At this point, the Applicant and the second male were standing about 10 metres away. After a short time, the second male approached the victim and also asked for a cigarette. The victim handed him the tobacco pouch and cigarette papers.

9. The Applicant then approached and said, “Do you have the time?”. The victim removed his mobile telephone from his trouser pocket and held it in his hand whilst looking at the time. As the victim was looking at the mobile phone, the Applicant grabbed the phone and pulled it from the victim’s hand. The victim attempted to take back the mobile phone by grabbing at it with his right hand.

10. The Applicant grabbed the victim by his shirt neck and said to him, “Do you want your face smashed in?”. The victim replied, “No, but can I have my phone back?”.

11. The Applicant asked the victim to give him his driver’s licence. The victim handed the licence to the Applicant and the Applicant gave the licence to one of the other males and instructed him to take down the victim’s details. The victim was worried because the men then knew where he and his family lived.

12. The Applicant released his grip on the victim and said, “You want your SIM card back?”. The victim said, “Yes but how am I meant to get it out?”. There was some discussion as to the method of removing the SIM card. The victim said, “Can I go now?” and the first male said, “Can I have another cigarette?”. The victim replied, “Fuck it, have the whole thing” and handed over the tobacco pouch, papers and filters.

13. The victim went to leave when the Applicant tapped his left shoulder. The victim turned and the Applicant handed him a $10.00 note saying, “Go get a cab home”. The Applicant then handed the victim another $10.00 note which the victim took before walking towards the taxi rank and catching a taxi home.

14. The Applicant and the two males left the location.

15. As a result of the threats made by the Applicant, the victim did not immediately report the robbery to police. The victim feared that the Applicant and other males would come to his home and possibly harm his family if he reported the incident.

16. On 6 July 2013, the victim told his father about the robbery. They attended Gladesville Police Station and reported the robbery.

17. The offence was captured on CCTV. Investigations were carried out in relation to the victim’s mobile phone. On 8 July 2013, a SIM card for a mobile service registered to the Applicant was used in the victim’s mobile phone.

18. For reasons that are not clear, it was not until 2 April 2014 that the Applicant was arrested at his home and taken to Ryde Police Station. The Applicant declined to be interviewed by police and was charged.

19. The Applicant was released on bail and did not enter custody until sentence was imposed on 29 February 2016.

The Applicant’s Subjective Circumstances

20. As mentioned earlier, the offence was committed on the Applicant’s 19th birthday. He was 21 years old at the time of sentence.

21. The Applicant had a limited criminal history comprising offences of assault police (and associated offences) in 2009 and resist police (and associated offences) in 2011, all of which were disposed of in the Children’s Court by way of bond and fines.

22. The Applicant was subject to conditional liberty at the time of the present offence in the form of a bond to be of good behaviour for 12 months under s.10 Crimes (Sentencing Procedure) Act 1999 for an offence of possession of a prohibited weapon without a permit, imposed at the Ryde Local Court on 5 December 2012.

23. As mentioned earlier, the Applicant appeared before the Mount Druitt Local Court on 5 July 2013 and was sentenced for a drink-driving offence.

24. Presentence reports were before the sentencing Judge, with the later report (dated 3 February 2016) indicating that the Applicant had “matured somewhat since his initial contact with Community Corrections” and had achieved a level of realisation as to his responsibility to the offence, together with maintaining employment in the construction industry. In addition, the Applicant had been in a serious relationship since June 2015.

25. Tendered at the sentencing hearing were references which confirmed the Applicant’s employment and developing maturity since the time of the offence together with a letter from the Applicant which confirmed that approach on his behalf.

Grounds of Appeal

26. By Notice of Application for Leave to Appeal filed on 17 November 2016, the Applicant relies upon the following grounds of appeal:

1. Ground 1 - the sentencing Judge erred in misapplying the guideline judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 by impermissibly abrogating or confining his sentencing discretion by treating the guideline as prescriptive rather than as a guide.

2. Ground 2 - the sentencing Judge erred in failing to find exceptional circumstances to distinguish the R v Henry guideline on the facts before his Honour, particularly in light of the Applicant’s demonstrated rehabilitation.

3. Ground 3 - the sentencing Judge erred in failing to distinguish the R v Henry guideline on the basis that there was an early guilty plea.

4. Ground 4 - the sentencing Judge erred in his use of sentencing statistics to justify a full-time custodial sentence.

5. Ground 5 - the sentencing Judge erred in failing to adhere to the requirements in s.5 Crimes (Sentencing Procedure) Act 1999 by not considering possible alternatives to a full-time term of imprisonment.

6. Ground 6 - the sentencing Judge erred in taking into account the fact that the offence was committed in company, which is an element of the offence, as an aggravating factor.

7. Ground 7 - the sentencing Judge erred in imposing a sentence that is manifestly excessive.

Course of Proceedings in the District Court

27. Reference should be made to the protracted history of the proceedings in the District Court.

28. The offence was committed on 5 July 2013. It was not until 2 April 2014 that the Applicant was arrested and charged with this offence.

29. After extensive plea negotiations, the Applicant pleaded guilty to the offence of robbery in company in the Burwood Local Court on 27 August 2014 and was committed for sentence on that charge.

30. The matter was first listed in the District Court on 5 September 2014 when it was adjourned to 14 November 2014 for the purpose of a disputed facts hearing with a three-hour estimate.

31. On 5 September 2014, a document outlining the areas of disputed facts was handed up and a presentence report was ordered. The matter was not reached and was adjourned until 19 February 2015.

32. On 19 February 2015, the disputed facts hearing proceeded before Sweeney DCJ. The victim of the offence gave oral evidence and was cross-examined and a further presentence report was ordered at the Applicant’s request. The proceedings were adjourned part-heard until 17 April 2015.

33. On 17 April 2015, the part-heard disputed facts hearing continued before Sweeney DCJ. The Applicant gave evidence and, a short distance into his evidence-in-chief, the presiding Judge formed the view that the Applicant was giving an account which was not consistent with his plea of guilty. In accordance with s.106 Criminal Procedure Act 1986, her Honour directed that the Applicant’s matter be fixed for trial at a later date.

34. The proceedings were adjourned for arraignment on 15 May 2015 when a plea of not guilty was entered. The matter was listed for trial on 19 October 2015. On 9 October 2015, the Applicant entered a plea of guilty and the trial date was vacated.

35. The sentence proceedings finally came before Garling ADCJ on 12 February 2016. On this date, a Crown bundle was tendered including Agreed Facts signed by the Applicant. These facts were in similar terms to those which the Crown had sought to rely upon initially, with a limited difference concerning the degree of violence used by the Applicant in the offence.

The Sentencing Hearing in the District Court

36. Given the submissions advanced on behalf of the Applicant in this Court, it is appropriate to say something about the sentencing hearing before Garling ADCJ on 12 February 2016.

37. Early in the sentencing hearing, following the tender of the Crown material and the presentence reports together with documents tendered for the Applicant, counsel for the Applicant submitted that alternatives to full-time custody were appropriate in this case. His Honour enquired as to the Crown’s initial response to that submission, and it was emphasised for the Crown that a custodial sentence was appropriate in this case having regard to the guidelines in R v Henry at 380 [162]. In light of that indication as to the issues in the proceedings, the presiding Judge indicated “OK, therefore I can’t deal with the matter quickly. I’ll just let it take its course” (T4, 12 February 2016).

38. The sentencing hearing proceeded with submissions being made on behalf of the Applicant and the Crown. As submissions unfolded, the sentencing Judge was informed that the offence had been committed in breach of conditional liberty. Counsel for the Applicant referred to the circumstances of the offence and emphasised the increased maturity and stability of the Applicant in support of the submission that the Court should consider proceeding by way of a non-custodial sentence.

39. The Crown made submissions by reference to the protracted history of the matter in the District Court involving a contested facts hearing and Sweeney DCJ rejecting the Applicant’s plea in light of his evidence. The Crown made submissions concerning the R v Henry guideline pointing to areas where the present case fell within that guideline. Reference was made, as well, to the fact that the offence was committed in breach of conditional liberty and that the Applicant’s intoxication was not a mitigating factor because of s.21A(5AA) Crimes (Sentencing Procedure) Act 1999. The Crown submitted that the matter fell within the R v Henry guideline and that a custodial sentence should be imposed in the circumstances of the case.

40. The sentencing Judge reserved his decision until 29 February 2016.

Remarks on Sentence

41. Given the challenge made on behalf of the Applicant in this Court, it is appropriate to refer to aspects of the remarks on sentence which were concise and to the point.

42. After reference to the maximum penalty of 20 years’ imprisonment, his Honour made findings of fact which are not challenged in this Court.

43. The sentencing Judge turned to the Applicant’s subjective circumstances (ROS2-3):

“The offender is 21 years of age. He has a criminal record as a juvenile of a minor nature. The pre-sentence report - there are two of them - they record that he resides with his parents. He is employed. He has matured and has taken responsibility for his offence. His nephew committed suicide in 2014 and the offender, in a motor vehicle accident in 2012, lost his spleen. There are a number of positive references including from employers and the offender says that what happened was he was immature, got in with the wrong crowd, he has now matured, has apologised for what he has done.

I take into account that the offence occurred about two and a half years ago. No offences since. He has matured a lot, has a job, minor criminal record, was on a s 10 bond at the time, has family support, his mother and his sister are in Court and he has had strict bail reporting conditions. He did plead guilty but with a history that he traversed his plea and the matter was then listed for trial. I will allow a 10% discount. He had consumed alcohol at the time of the offence. It is not a mitigating factor but may explain why he acted the way he did. He says that he has had no alcohol since. But there is no other evidence of that.”

44. His Honour then turned to the objective gravity of the offence, and to make findings by reference to the R v Henry guideline before moving to pass sentence (ROS3-4):

“The facts put this offence at the lower level of these types of offences. It would have been extremely frightening for the victim. The offender must be sentenced in such a way that he knows he cannot offend in this way and that others in the community know that if they offend in this way, it is more likely than not that they will be sentenced to terms of imprisonment. On behalf of the offender it was submitted a non-custodial sentence was appropriate. The Crown submitted the sentence should be in accordance with guidelines in Henry. The full time custodial sentence is the only sentence that could be imposed.

The guideline judgment of R v Henry (1999) 46 NSWLR 346 also refers to this category of cases and the guidelines are a young offender with little or no criminal history which applies here, limited degree of planning which applies here, a limited amount of violence which applies here, the victim was vulnerable although not a shopkeeper or taxi driver but alone at night; a small amount was taken, plea of guilty and the Court has indicated where those characteristics apply, that the sentence would normally be in the range of four to five years full time. In addition of course, he was in company.

In Henry it says that unless exceptional circumstances apply, then a sentence of that type should be imposed. Special circumstances do not apply. The Court of Criminal Appeal has said that the guidelines relating to armed robbery also apply to robbery in company. Judicial statistics covering about 1700 cases indicate that 82% are sentenced to full time imprisonment. 11% of those sentences are suspended. In my view, the only appropriate sentence in this case is one of a full time custody. That is despite the offender's age and his attempts to rehabilitate himself. In my view, the appropriate sentence is one of two and a half years but that it should have a non-parole period of 18 months.”

45. The sentence was dated from 29 February 2016 with an order that the Applicant be released to parole on 28 August 2017.

Grounds 1-5 - Alleged Error in Use of the R v Henry Guideline Judgment and Associated Issues

46. Mr Adamo, counsel for the Applicant, noted that Grounds 1-5 were linked so that they could be argued and considered together. I will approach these grounds in that way.

Submissions of the Parties

47. It was submitted for the Applicant that the sentencing Judge, in effect, abrogated his sentencing discretion by treating the R v Henry guideline as being prescriptive rather than as a guide. It was argued that his Honour had apparently accepted the Crown submission advanced at the commencement of the sentencing hearing that a custodial sentence was necessary, effectively without any discretionary assessment of other sentencing options.

48. The matters asserted in Grounds 2-5 were relied upon as flowing from Ground 1, as other indicia of a failure to exercise discretion on sentence because of an unduly prescriptive approach to the use of the R v Henry guideline.

49. The Crown submitted that the sentencing Judge had articulated the R v Henry guideline and had taken it into account as a checklist or guide and not in a prescriptive fashion. It was submitted that after the Crown submission made at the commencement of the sentencing hearing, the presiding Judge had proceeded with the sentencing hearing and heard submissions, before reserving his judgment and then delivering remarks on sentence which evaluated the submissions which had been made.

50. The Crown submitted that none of the errors asserted in Grounds 1-5 was made good in this case.

Decision

51. The Applicant was to be sentenced for an offence of robbery in company under s.97(1) Crimes Act 1900. With appropriate modifications, the R v Henry guideline may be applied to this offence which has the same maximum penalty as an offence of armed robbery and which could be seen as being broadly equivalent: R v Murchie (1999) 108 A Crim 482; [1999] NSWCCA 424 at 485 [20]; R v Stanley [2003] NSWCCA 233 at [14]; R v Lesi [2005] NSWCCA 63 at [31].

52. In R v Henry, Spigelman CJ identified a guideline in the following way (at 380 [162]-[165]):

“162    It appears from the cases that come to this Court, including the present proceedings, that there is a category of case which is sufficiently common for purposes of determining a guideline:

(i)    Young offender with no or little criminal history;

(ii)    Weapon like a knife, capable of killing or inflicting serious injury;

(iii)    Limited degree of planning;

(iv)    Limited, if any, actual violence but a real threat thereof;

(v)    Victim in a vulnerable position such as a shopkeeper or taxi driver;

(vi)    Small amount taken;

(vii)    Plea of guilty, the significance of which is limited by a strong Crown case.

163    Whilst it is possible to determine a starting point in a case of this kind, i.e. a sentence of X years imprisonment, I do not believe that the Court should do so. Rather, I propose the Court should identify a narrow sentencing range within which this Court would expect sentences in such cases to fall.

164    There are two principal reasons why a sentencing range is appropriate for this offence:

(i)    The seven characteristics identified above do not represent the full range of factors relevant to the sentencing exercise.

(ii)    Many of the seven identified characteristics contain within themselves an inherent variability, eg different kinds of knives or weapons in (ii); extent of ‘limited actual violence’ in (iv); degree of vulnerability in (v); amount in (vi).

165    In my opinion sentences for an offence of the character identified above should generally fall between four and five years for the full term. I have arrived at this figure after drawing on the collective knowledge of the other four members of the Court with respect to sentence ranges. I have also reviewed the sentences which this Court has imposed on occasions when it has intervened, including in Crown appeals where the principle of double jeopardy applies. The proposed range is broadly consistent with this body of prior decisions in this Court.”

53. As part of the R v Henry guideline, an offender convicted of robbery in company should expect to receive a full-time custodial sentence save in exceptional circumstances: R v Henry at 386 [210], 397 [270]; Legge v R [2007] NSWCCA 244 at [44].

54. Youth by itself is not an exceptional circumstance: R v Tran [1999] NSWCCA 109 at [18]. It has been emphasised that a guideline is not a “tramline” but is to be used “as a check, a guide or an indicator or as a sounding board”: Legge v R at [58]-[59].

55. It is a fundamental premise of the Applicant’s submission that the sentencing Judge in this case used the R v Henry guideline in a prescriptive fashion and not as a guideline as explained in the authorities. I do not accept that submission.

56. A fair reading of his Honour’s remarks on sentence reveals that regard was had to the objective and subjective factors in the case, with consideration being given to the R v Henry guideline as it applied to this case. His Honour omitted factor (ii) use of a weapon (which did not apply in this case) but had regard, as well, to the fact that the s.97(1) offence was committed in company, an element of the offence itself.

57. His Honour considered whether there were exceptional circumstances in this case and concluded that there were not, although his Honour used the term “special circumstances” (with this being either a slip or an intentional use of a different term to explain the same concept).

58. All this occurred after his Honour had outlined the competing submissions as to whether a custodial sentence was necessary in the circumstances of this case. Ultimately, his Honour accepted the Crown submission.

59. It has not been demonstrated that the sentencing Judge misapplied the R v Henry guideline as asserted in Ground 1.

60. The Applicant contends (in Ground 5) that his Honour should have referred expressly to s.5 Crimes (Sentencing Procedure) Act 1999 for the purpose of excluding alternatives to full-time imprisonment. It is necessary to keep in mind that the fact that a sentencing Judge does not refer to s.5, and to the steps involved in considering measures short of full-time imprisonment, does not of itself give rise to sentencing error: Rudolf v R [2016] NSWCCA 313 at [48].

61. The sentencing remarks of this experienced Judge should be construed as involving consideration by his Honour as to the possible use of sentencing measures short of full-time imprisonment, but with the Court concluding that full-time imprisonment was the only appropriate sentencing option in the circumstances of the case.

62. It is clear that the sentencing Judge accepted that the Applicant had taken considerable steps towards rehabilitation. However, a favourable conclusion in that respect did not give rise to an inevitable finding of exceptional circumstances for the purpose of consideration of the R v Henry guideline (Ground 2).

63. To the extent that the Applicant seeks (by Ground 3) to rely upon his early guilty plea in the context of application of the R v Henry guideline, it was the case that the Applicant had effectively canvassed his plea of guilty at the hearing before Sweeney DCJ, thereby leading to her Honour rejecting the plea of guilty and fixing the matter for trial. It may be said that the Applicant utilised the extended period that resulted, from the time of his committal for sentence to the time when he appeared before Garling ADCJ for a sentencing hearing, to advance his rehabilitation through increased maturity, obtaining steady employment and entering into a stable relationship. The sentencing Judge took those factors into account in the determination of sentence.

64. However, the utilitarian value of his early guilty plea was eroded to an extent by a disputed facts hearing at which the victim was required to give evidence. This aspect operated against the interests of the Applicant in determining the discount to be extended to him for his plea of guilty: R v AB (2011) 59 MVR 356; [2011] NSWCCA 229 at 359-360 [2], 363-364 [23]-[33]. No challenge was made to the 10% discount allowed by his Honour.

65. With respect to Ground 4, I am not persuaded that error is established in his Honour’s use of sentencing statistics. This was an orthodox reference to sentencing statistics of a type which is recognised and accepted by the Courts.

66. In light of these conclusions, I am not satisfied that the Applicant has demonstrated error in any of the ways contended for in Grounds 1-5. I reject these grounds of appeal.

Ground 6 - Suggested Error in Double Counting the Element of Being in Company as an Aggravating Factor on Sentence

Submissions of the Parties

67. Counsel for the Applicant submitted that the sentencing Judge had taken into account the aggravating factor that the offence had been committed in company under s.21A(2)(e) Crimes (Sentencing Procedure) Act 1999, in addition to that factor being an element of the s.97(1) offence itself.

68. The Crown submitted that his Honour did not double count this factor on sentence. Rather, the sentencing Judge had referred to this aspect as being a matter to consider in assessing the application of the R v Henry guideline.

Decision

69. It is necessary to read fairly his Honour’s remarks on sentence for the purpose of determining this ground of appeal.

70. At the commencement of the remarks on sentence, his Honour noted that the Applicant was to be sentenced for a s.97(1) offence based upon the offence being committed in company.

71. Having made an assessment concerning the objective gravity of the offence, his Honour turned to the R v Henry guideline and listed features of that guideline which were present in this case. In undertaking that task, his Honour referred as well to the fact that the offence had been committed in company. His Honour was not purporting to double count this factor on sentence. Rather, the sentencing Judge was referring to this aspect as being a matter additional to the factors in the R v Henry guideline insofar as they applied to the Applicant’s case.

72. The Applicant has not made good this ground of appeal.

Ground 7 - Claim of Manifest Excess

Submissions of the Parties

73. Counsel for the Applicant submitted that the sentence imposed in this case was manifestly excessive when regard is had to the low objective gravity of the offence and the Applicant’s substantial subjective factors, including the steps which he had taken to demonstrate rehabilitation. Having regard to these aspects, it was submitted that the sentence imposed was unreasonable and plainly unjust.

74. The Crown submitted that this was a relatively serious example of a robbery in company offence, committed late at night in the vicinity of a railway station against a stranger who had left public transport. The Court was reminded of statements this Court which have emphasised the importance of general deterrence and the need for appropriate punishment for offences committed in these circumstances.

75. The Crown pointed to the fact that the offence was committed whilst the Applicant was subject to conditional liberty and that his remorse was qualified because of the evidence which he had given on 17 April 2015 in which he had denied any act of violence as part of the offence.

76. The Crown submitted that the Applicant had not made good his claim of manifest excess.

Decision

77. To succeed on the ground of manifest excess, the Applicant must demonstrate that the sentence was unreasonable or plainly unjust: Markarian v The Queen [2005] 228 CLR 357; [2005] HCA 25 at 370-371 [25]. It is not sufficient that this Court might have exercised the sentencing discretion in a manner different to the way in which the sentencing Judge exercised his discretion: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 19 at [15].

78. The offence involved a robbery in company committed against a stranger late at night after the victim had left public transport. This Court has emphasised the need for substantial punishment, with an emphasis on general deterrence, in the case of violence against citizens on or in the vicinity of public transport. This is so even in the case of young offenders. Persons who use public transport at night should be considered as vulnerable and to be protected by sentences imposed by the courts: R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [207]-[208].

79. The victim in this case was vulnerable and the sentencing Judge correctly took this aspect into account in sentencing the Applicant.

80. The Applicant was subject to conditional liberty at the time of the offence by way of a s.10 good behaviour bond. This was an aggravating feature on sentence: s.21A(2)(j) Crimes (Sentencing Procedure) Act 1999. The essence of that provision is that the offender commits a further offence whilst subject to an order of a court in criminal proceedings requiring, amongst other things, that the offender be of good behaviour: Porter v R [2008] NSWCCA 145 at [86]. In addition to this aspect, the Applicant had appeared before a court for sentence for a drink-driving offence on the very day of the offence. That appearance before a criminal court did not operate to deter the Applicant from commission of this offence later that day.

81. The offence itself involved the use of violence by the Applicant towards the victim at a time when the Applicant was in company of other persons. The fact that an offence was committed in company meant that the victim was confronted by the combined force of two or more persons who shared a common purpose, with that aspect itself adding to the gravity of the offence: R v Speechley (2012) 221 A Crim R 175; [2012] NSWCCA 130 at [61].

82. It may be said that, by the time the Applicant stood for sentence before Garling ADCJ, he had taken substantial steps towards his rehabilitation. His Honour made findings favourable to the Applicant in this respect.

83. It was necessary, however, for his Honour to undertake the process of instinctive synthesis in all the circumstances of the case, both objective and subjective, and with attention being paid to the requirements of specific and general deterrence. The R v Henry guideline was considered appropriately by his Honour and was taken into account in the process of the exercise of individualised justice in this case.

84. The sentence imposed by his Honour was significantly less than the numerical guideline contained within the R v Henry guideline. This reflected his Honour’s finding that this was “at the lower level” for offences of this type. There were some unusual features to this offence which operated in the Applicant’s favour on sentence. It is clear that his Honour weighed the competing factors in a manner which saw the R v Henry guideline being used in a non-prescriptive way. It is clear that his Honour made a finding of “special circumstances” so as to vary the statutory ratio between the non-parole period and the head sentence.

85. This Court is a court of error. It is necessary (for the purpose of this ground) for the Applicant to demonstrate error in that the sentence imposed upon the Applicant was unreasonable or plainly unjust. It is not for this Court to exercise its sentencing discretion afresh unless error has been demonstrated.

86. It has not been demonstrated that the sentence in this case was manifestly excessive. I would reject the final ground of appeal.

Conclusion

87. The Applicant has not made good any of his grounds of appeal.

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

89. FAGAN J: I agree with Johnson J.

**********

Amendments

14 March 2017 - Additional counsel named

Decision last updated: 14 March 2017