R v DM

[2020] NSWDC 300

District Court

New South Wales

Medium Neutral Citation:	R v DM [2020] NSWDC 300
Hearing dates:	15 April 2020
Date of orders:	20 April 2020
Decision date:	20 April 2020
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Term of imprisonment of 6 years with a non-parole period of 3 years
Catchwords:	CRIME — Violent offences — Robbery with wounding SENTENCING — Juvenile offenders — Sentence of imprisonment SENTENCING — Juvenile offenders — To be dealt with “according to law” SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Mitigating factors — Rehabilitation SENTENCING — Non-parole period — Principles to be applied SENTENCING — Non-parole period — Ratio of the non-parole period and balance of term SENTENCING — Relevant factors on sentence — Circumstances of offence SENTENCING — Relevant factors on sentence — Co-offenders SENTENCING — Relevant factors on sentence — Deterrence — General deterrence SENTENCING — Relevant factors on sentence — Deterrence — Specific deterrence SENTENCING — Relevant factors on sentence — General principles SENTENCING — Relevant factors on sentence — Maximum penalty SENTENCING — Relevant factors on sentence — Objective seriousness SENTENCING — Relevant factors on sentence — Victim attitude to offender SENTENCING — Sentencing procedure — Expert reports SENTENCING — Sentencing procedure — Reasons for sentence SENTENCING — Subjective considerations on sentence — Age of offender SENTENCING — Subjective considerations on sentence — Intoxication SENTENCING — Subjective considerations on sentence — Special circumstances
Legislation Cited:	Anti-Discrimination Act 1977 Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Road Transport Act 2013
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Callaghan v R [2006] NSWCCA 58 Director of Public Prosecutions Commonwealth v De La Rosa [2010] NSWCCA 194 KT v R [2008] NSWCCA 51 McCullough v R [2009] NSWCCA 94 Melvaine v R [2019] NSWCCA 274 R v Borkowski [2009] NSWCCA 102 R v Darrell Terry McNaughton [2006] NSWCCA 242 R v Fernando [1992] 76 A Crim R 58 R v Henry [1999] 46 NSWCLR 346 R v K [2000] NSWCCA 24 R v Olbrich [1999] HCA 54 R v Qutami [2001] NSWCCA 353 Tepania v R [2018] NSWCCA 247
Category:	Sentence
Parties:	Regina (Crown) DM (Offender)
Representation:	Samuel Amvrazis (Crown) Rose Raymond (Offender)   Director of Public Prosecutions (NSW) (Crown) Aboriginal Legal Service (NSW/ACT) Limited (Offender)
File Number(s):	2018/00330504
Publication restriction:	No publication of the Offender’s name or any information which might enable his identity to be ascertained due to his age at the time of the offence

REVISED Judgement

1. These are the sentence proceedings for the young person I shall refer to as DM.

INTRODUCTION

2. DM was, on 7 August 2018 at the time of the offences upon which sentence is to be imposed, a child born in 2002. This year he reached his 18th birthday and is thus now an adult but the proceedings are conducted in camera because of his status when he committed the offences. He is thus referred to by his initials.

3. For the indictable offence of robbery with the infliction of grievous bodily harm he is exposed to a sentence of imprisonment for 25 years and therefore is before this court to be dealt with according to law and not pursuant to the Children (Criminal Proceedings) Act1987.

4. There is also a summary offence to be dealt with in accordance with that Act.

5. He is prosecuted by the initials DM drawn from the name by which he is charged and against which his antecedents are recorded, but I was told that he prefers to be known by his birthfather’s name and in the conduct of the proceedings he was addressed so. However, for the purposes of this judgement I shall refer to him by the name under which he was charged and the name against which his antecedents are recorded. The name in which the proceedings were initiated was DM, which is also his record name; on the antecedent report, and he will be sentenced in that name.

6. Listed with the sentence proceedings was an application for leave to appeal from a control order imposed on 11 February 2020 for an offence of assault upon a Juvenile Justice Officer, reference H138890201. He was sentenced to a control order of 12 months including a non-parole period of six months from 11 February 2020. The appeal was not sought until after the expiration of 28 days from the date of the order and thus leave is required. However at the commencement of the sentence proceedings before this court it was announced that he wished to abandon the application, accordingly the orders of the Magistrate in respect of those proceedings remain unaffected.

THE OFFENCES

7. There are two offences before the Court. The first is contrary to s 96 Crimes Act1900 certified before the District Court in the following terms:

“On 7 August 2018, at Burwood in the State of New South Wales, did rob ER of certain property, namely, a silver Nissan Qashqai New South Wales registration YDTXXX, car keys, black wallet and two mobile phones, the property of ER, and at the time of the robbery used corporal violence on ER and thereby did cause grievous bodily harm to him.”

8. The offence created in s 96 is part of a legislative structure beginning with s 94 Crimes Act 1900 which provides for the offence of robbery.

9. Section 95 applies a penalty for the same conduct in circumstances of aggravation, which include the use of corporal violence, and s 96 provides for the offence under s 95 in the commission of which there is the infliction of grievous bodily harm.

10. The maximum penalty for this offence is imprisonment for 25 years; there is no standard non-parole period for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act1999. Moreover, as DM was aged 16 years at the time of the offence Part 4 Division 1A of the Act does not apply by force of s 54B(3).

11. The second offence is before the Court by way of s 166 Criminal Procedure Act 1986 as a related offence certified in the following terms:

“On 7 August 2018, at Burwood in the State of New South Wales, did drive a motor vehicle on a road without being licenced for that purpose, the said DC being a person who had never been licenced and was not exempted by the statutory rules from being licenced.”

12. The charge was certified using the name by which the young person prefers to be known and thus the initials DC were there adopted to reflect that use.

13. This offence is contrary to s 53(3) Road Transport Act2013 which provides for a maximum penalty of imprisonment of six months or a fine represented by 30 penalty units or both. This is a second or subsequent offence for the assessment of penalty. There is also a disqualification period to be imposed. The table to s 205A Road Transport Act2013 specifies an automatic period of disqualification of 12 months with discretion for the court to reduce the period to three months.

PLEAS OF GUILTY

14. DM pleaded guilty in the Children’s Court to the robbery offence and therefore in accordance with Common Law including the judgement of Howie J in R v Borkowski [2009] NSWCCA 102, he is entitled to a discount of 25% for the utility of his plea of guilty to be applied to the sentence determined upon the synthesis of objective and subjective factors arising from the circumstances of the offending and the offender, including any contrition and remorse.

15. The proceedings for the second offence are conducted as in the Children’s Court upon the application of s 166 Criminal Procedure Act 1986, and by force of s 25A(1)(b) Crimes (Sentencing Procedure) Act1999, the provisions replacing the common law discounts for utilitarian value with the current statutory scheme do not apply.

16. DM confirmed that he had pleaded guilty to the robbery offence in the Children’s Court and adhered to that plea before this Court. The summary offence was read to him and he pleaded guilty to that charge after it was announced that he consented to this Court dealing with the matter.

17. It is not possible to impose an aggregate sentence for these offences. The robbery offence is a serious children’s indictable offence to be dealt with according to law because it is punishable by imprisonment for 25 years: s 3 Children (Criminal Proceedings) Act 1987. However, the summary offence is to be dealt with as if the Court was sitting as a Children’s Court, to be conducted according to that Act with resort to the penalties that the Children’s Court has available to it.

PRE-SENTENCE CUSTODY

18. The determination of when to commence the imprisonment to be imposed in this case is not without its difficulty. Simpson J in Callaghan v R [2006] NSWCCA 58 wrote of the discretion to order the commencement of a sentence to a date before the expiration of the custodial component of the term of imprisonment to which the person was already subject. Though dealing with a matter that involved revocation of parole the analysis provided by her Honour from para 22 is of application:

“22 I maintain the view that the discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a Court for sentence after parole has been revoked are far too varied to permit a single absolute rule.

23. It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open for an offender to seek and be granted parole even after a revocation: to sentence in such a way as to commence the subsequent sentence only on the date of the expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted the second chance at parole.

24. However, I am also of the view that, particularly where, as here, the reoffending has occurred within a very short period of time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences.

25. Thus, I am of the view that the sentencing Judge did have a discretion to make the sentences wholly or partly cumulative upon the sentence to which the applicant was, as a consequence of the revocation of parole, serving. That allowed her a period of six months. She could have specified the current sentences to commence at any time during that period.”

19. DM has an unenviable record of past offending, including an array of offences upon which on 22 November 2019 he was sentenced to an aggregate control order of 20 months commencing 5 October 2018 and concluding on 4 June 2020 including a non-parole period of 12 months which expired on 4 October 2019. Thus the custodial component of the backdated sentence expired before the sentence was imposed, though the overall sentence continues until 4 June 2020. The offences upon which the aggregate sentence was imposed are set out in the following table:

H Reference	Date of Offence	Offence
H67106410	18 August 2018	Police Pursuit
18 May 2018	Assault Law Officer (Not police officer)
18 August 2018	Drive Whilst Disqualified
H70221827	21 March 2019	Drive Conveyance Taken without Consent (2 counts)
21 March 2019	Dishonestly Obtain Advantage by Deception
H72209365	19 June 2019	Never Licensed – Drive – Prior Offence
19 June 2019	Police Pursuit – 2nd Offence
19 June 2019	Use Offensive Weapon to Prevent Lawful Apprehension
19 June 2019	Drive Conveyance Taken without Consent
H68400256	16 July 2018	Assault Law Officer (Not police officer)
H71856581	17 August 2018	Police Pursuit – 2nd Offence
H70687547	10 & 11 January 2019	Affray
10 & 11 January 2019	Destroy or Damage Property
H728182274	17 May 2019	Common Assault

20. In addition, for assaulting a Juvenile Justice Officer on 29 June 2019 apparently whilst in custody, he was sentenced to a control order of 12 months from 11 February 2020 concluding on 10 February 2021 including a non-parole period of six months to expire on 10 August 2020.

21. The table hereunder provides particulars of the sentences to which DM has been subject in addition to his aforementioned current sentences. These were ultimately imposed in all but one sequence upon what were successful appeals from sentence to the District Court.

H Reference	Date of Offence	Offence	Court Date	Control Order
H62303661	9 May 2016	Larceny (Sequence 01)	28 April 2017	Bond 12 months
10 October 2017 (call-up)	3 months from 23/09/2017 to 22/12/2017
Appeal 13 December 2017	3 months from 03/07/2017 to 02/10/2017
H232119996	12 to 13 September 2016	Carried in Conveyance Taken Without Consent (Sequence 01)	28 April 2017	Probation 12 months
10 October 2017	3 months from 23/09/2017 to 22/12/2017
Appeal 13 December 2017	2 months from 23/09/2017 to 22/11/2017
H63629304	13 March 2017	Drive Dangerously (Sequence 04)	28 April 2017 (call-up)	Bond 12 months
10 October 2017	3 months from 23/09/2017 to 22/12/2017
Appeal 13 December 2017	2 months from 23/09/2017 to 22/11/2017
Take and Drive Conveyance Without Consent (Sequence 05)	28 April 2017	Probation 12 months
10 October 2017	3 months from 23/09/2017 to 22/12/2017
Appeal 13 December 2017	2 months from 23/09/2017 to 22/11/2017
Police Pursuit (Sequence 06)	28 April 2017	Probation 12 months
10 October 2017	3 months from 23/09/2017 to 22/12/2017
Appeal 13 December 2017	2 months from 23/09/2017 to 22/11/2017
21 – 22 February 2016	Break Enter and Steal (Sequence 03)	28 April 2017	Probation 12 months
10 October 2017	3 months from 23/09/2017 to 22/12/2017
Appeal 13 December 2017	2 months from 23/09/2017 to 22/11/2017
H65700768	26 – 27 May 2017	Take and Drive Conveyance Without Consent (Sequence 02)	10 October 2017	9 months from 23/09/2017 to 22/06/2018. Non-parole 3 months to 22/12/2017
Appeal 13 December 2017	9 months from 03/07/2017 to 02/04/2018. Non-parole 3 months to 02/10/2017
13 June 2017	Police Pursuit (Sequence 05)	10 October 2017	9 months from 23/09/2017 to 22/06/2018. Non-parole 3 months to 22/12/2017
Appeal 13 December 2017	9 months from 03/07/2017 to 02/04/2018. Non-parole 3 months to 02/10/2017
Take and Drive Conveyance Without Consent (Sequence 03)	10 October 2017	9 months from 23/09/2017 to 22/06/2018. Non-parole 3 months to 22/12/2017
Appeal 13 December 2017	9 months from 03/07/2017 to 02/04/2018. Non-parole 3 months to 02/10/2017
14 June 2017	Police Pursuit (Sequence 01)	10 October 2017	9 months from 23/09/2017 to 22/06/2018. Non-parole 3 months to 22/12/2017
Appeal 13 December 2017	9 months from 03/07/2017 to 02/04/2018. Non-parole 3 months to 02/10/2017
H65651957	12 September 2017	Police Pursuit (Sequence 04)	10 October 2017	12 months from 23/09/2017 to 22/09/2018. Non parole 6 months to 22/03/2018
Appeal 13 December 2017	Non parole reduced to 5 months and 13 days from 03/07/2017 to 15/12/2017
H66639568	12 September 2017	Drive Conveyance Taken Without Consent (Sequence 08)	10 October 2017	12 months from 23/09/2017 to 22/09/2018. Non parole 6 months to 22/03/2018
Appeal 13 December 2017	12 months from 03/07/2017 to 02/07/2018. Non parole 6 months to 15/12/2017
Dishonestly Obtain Financial Advantage by Deception (Sequence 07)	1 month from 23/09/2017 to 22/10/2017
Appeal 13 December 2017	1 month from 03/07/2017 to 02/08/2017
H406855292	24 January 2018	Drive Conveyance Taken Without Consent (Sequence 01)	24 April 2018	6 months from 29/01/2018 to 28/7/2018
Police Pursuit (Sequence 03)	12 months from 29/01/2018 to 28/01/2019 .Non-parole 6 months to 28/07/2018

22. According to the custodial record after his arrest for the current matters on 24 August 2018 and after he committed the abovementioned offences on 18 May and 18 August 2018 charged against H67106410 he was held in custody until 6 March 2019 when according to his custodial record “bail conditions satisfied”.

23. Thereafter he is shown to be a new admission on 22 March 2019 which correlates with the abovementioned offences charged against H70221827 until 23 May 2019 when once again it is recorded “bail conditions satisfied”.

24. On 19 June 2019 which correlates to the abovementioned offences charged against H72209365 he is shown to be a new admission and according to the custodial record he has remained in custody since.

25. It is thus that when he was finally dealt with the offences in the first of the tables, from which he suffered the aggregate control order of 20 months, he had preceding referable periods of custody which were implemented in the backdated sentence. His aggregate non-parole period expired on 4 October 2019 after which he remained in custody for the offence of assaulting the officer which, according to his antecedent record, occurred on 29 June 2019 and with which he was charged on 17 July 2019. When dealt with on 11 February 2020 the sentence of 12 months control order was ordered to commence on that date.

26. I have searched back through his antecedent control orders and can see no other sentence to which he was subject after the conclusion of the aggregate non-parole period and up to 11 February 2020 when he was sentenced to the control order of 12 months for the assault on the law officer. The material before me does not include the reasons for the Magistrate’s determination and I am unable to say whether the discretion to which Simpson J spoke was in mind at the time.

27. The resultant aggregate of the periods of custody to which DM is subject drawn from the documents before me are:

1. Upon the concurrent sentences in the District Court appeal, appeals determined on 13 December 2017, and the further matter resolved in the Children’s Court on 24 April 2018 from which there was no appeal: from 3 July 2017 to 28 July 2018 non-parole period with a further period for parole until 28 January 2019.

2. Upon the aggregate sentence of 20 months imposed on 22 November 2019: from 5 October 2018 to 4 October 2019 non-parole with a further period for parole until 4 January 2020.

3. Upon the sentence for assault upon the law officer imposed on 11 February 2020, from 11 February 2020 to 10 August 2020 non-parole with a further period of parole to expire on 10 February 2021.

28. Ms Raymond included in her material a table drawn from DM’s recorded custody showing sentences and the periods of custody since the date of the arrest for the matters before me. These are:

1. 24 August 2018 to 6 March 2019 - 195 days;

2. 22 March 2019 to 23 May 2019 - 62 days; and

3. 19 June 2019 to 16 April 2020 - 302 days.

29. When compared with the summary in the preceding paragraph it is clear that they are in part subsumed in the sentences to which DM is and has been subject. The submission is, notwithstanding that the period in custody to date is referrable to other offending, that the sentences to be imposed for the robbery and Children’s Court offence before me should be backdated to subsume entirely the sentences to which DM is and has been subject in light of the subjective matters arising from his challenging formative years, his psychological challenges, his youth, and to reflect totality of the offending, without imposing a crushing sentence upon such a young offender.

30. The Crown asserts in its cover sheet, with which, as I understand it, Ms Raymond agrees, that there are two periods of custody relevant to the present offences, namely from 24 August 2018 to 5 October 2018 and thereafter from 4 October 2019 to 11 February 2020 when the sentence for the assault upon the law officer commenced. I believe that the second period should commence on 5 October 2019 since the custodial component of the sentence he served expired on 4 October 2019.

29. This period in total is 173 days upon my calculations, when one brings to account the days of each of the relevant months. The figure is largely consistent with the Crown’s suggestion of five months and 18 days referrable to the misconduct with which I am concerned, again a matter with which I understand Ms Raymond agrees.

30. The history of offending upon which DM has engaged so far, without the consideration invited by Ms Raymond, is comparable with the type of offender to which Simpson J referred in the passages quoted above, such that without the matters to which she alluded I would hold that the Court could in the exercise of its discretion commence the sentence upon the day it is imposed. This appears to be consistent with what the Magistrate chose to do for the offence of assault upon the law officer, although I cannot express a concluded view upon that.

31. The offending, upon which DM engaged, including when in custody, has been continuous and persistent within a relatively short time after he was given the benefit of conditional liberty, no doubt directed to his rehabilitation if it was achievable. In such a case it would be reasonable for the whole of the period, if spent in custody, to be seen as referable to the previous offending.

32. However bringing to account the matters raised by Ms Raymond, I have come to the view that the commencement of this sentence should be backdated by 173 days from the date upon which sentence is to be imposed, which is today, reflecting the period in custody that is referrable to these charges only.

THE FACTS

35. Included in the Crown bundle is a document labelled ‘agreed facts’. This refers to the names by which the young person is known and his age of 16 years at the time of the offence with reference to his date of birth. I need not repeat that here.

36. The victim ER was 61 years of age at the time of the offence. On 7 August 2018 DM travelled from Wollongong to Burwood with KR, his girlfriend aged 16, and Nicklous Leahey, an associate then aged 39 years. Mr Leahey picked up DM and KR and drove them in his car to Wyalong Street, Burwood arriving there at approximately 1.10pm. Mr Leahey then went to attend the Burwood Local Court, leaving DM and KR in his car.

37. About 1.20pm Mr Leahey returned to the car, he entered the front passenger seat with KR seated in the driver’s seat, with DM was standing on the footpath next to the vehicle.

38. About 1.25pm the victim parked his car, the Nissan Qashqai, New South Wales registration YDTXXX on Wyalong Street; he locked it and started walking along Wyalong Street to attend a pre-arranged work meeting. As he was walking he was holding in his hands his personal mobile phone, a Samsung Galaxy S5, and his work mobile phone; his car keys were in the front pocket of his pants and his wallet was in his back pocket.

39. The victim walked past DM still standing on the footpath next to Mr Leahey’s car. DM began to follow the victim and shortly after the victim noticed DM walking closely on his right side, so that their shoulders were in contact. DM whispered something to the victim that he could not hear clearly.

40. The victim began to fear for his safety and raised the hand holding his personal phone and said “I’m going to call the police”. DM said “I don’t care about the police”. The victim grew increasingly concerned for his safety and ran across the road. DM chased the victim, pushed him and held him against a wall. The victim pushed DM with both hands, DM then punched the victim a number of times to the face, causing him to fall down. While the victim was on the ground DM punched and kicked him in the face multiple times causing him immediate pain and disorientating him; the victim was bleeding from his face; he was rendered unconscious for a period of time at which point DM began to search him, took his car keys, wallet, and both mobile phones.

41. The offence of drive never having held a licence is then described.

42. He ran away down Wyalong Street with KR following behind; he used the victim’s car keys to unlock the Nissan Qashqai and drove the car down Wyalong Street; DM has never held a New South Wales driver’s licence.

43. He was seen driving the victim’s car about 3.15pm on the same day, travelling southbound on the Princes motorway at Bulli Pass, with KR in the front passenger seat. Clearly this is a significant distance from Burwood where the attack occurred.

44. At 6.42pm DM took several videos on his mobile phone showing him in the driver’s seat of the car with KR in the front passenger seat and two young females of similar age in the back seat. The videos do not depict the car moving when they were recorded.

INJURIES TO THE VICTIM

45. Due to his injuries the victim was conveyed to Royal Prince Alfred Hospital for treatment and observations. He sustained the following as a result of the robbery amount to grievous bodily harm:

1. Facial - complex bilateral fractures of the mid-face and both eye sockets, predominantly the right mid-face, with displaced fragments in the right orbital floor, fractures through the medial and lateral wall of the right maxillary sinus and minimally displaced fractures through both pterygoid plates, paraesthesia and numbness at his right infra-orbital nerve distribution which is most likely due to Neuropraxia from his injuries.

2. Dental - coronal fracture of upper right tooth, lingual displacement of the lower left central incisor and lower right central incisor teeth causing malocclusion. Restrictive oral opening - orthodontic treatment to realign lower and anterior teeth is required but not yet undertaken. Placement of a ceramic crown to repair the fractured upper right and second premolar tooth is also required but not yet undertaken.

3. Psychological - acute stress disorder, insomnia, altered sleep pattern, depressive symptoms, distressing memories about the incident and avoidance of the area where the assault took place. ER was referred for neuro feedback and this analysis showed that it is very likely that he is suffering from a minor traumatic brain injury. As at September 2019 the victim has been receiving psychological treatment since November 2018. As at September 2019 the victim has been unable to work.

INVESTIGATIONS

46. Samples were taken from the victim’s clothing. DNA consistent with that of DM was detected in a mixed sample taken from the back pocket of his jeans.

47. On 23 August 2018 the victim’s abandoned car was located by police. A fingerprint deposited by DM was located on the right hand door.

48. On 24 August 2018 DM was arrested and taken to Lake Illawarra Police Station in relation to another matter. He was offered the opportunity to participate in a line-up in relation to the matter now before the Court but he declined. His phone was seized and was found to contain a number of photographs of him and KR in the car wearing the same items of clothing that they had been wearing on the day of the offence. On Tuesday 23 October 2018 he was offered the opportunity to be interviewed in relation to the matter but he declined.

THE GRAVITY OF THE OFFENCE

49. The parties are agreed upon the assessment of this offence as within the middle of the range of objective seriousness. The assessment is always a matter of judgement depending upon the facts and circumstances of the case at hand. Guidance is provided by Johnson J in Tepania v R [2018] NSWCCA 247. His Honour dealt with standard non-parole provision but continued at para 111:

“111. In sentencing for an offence (whether or not a standard non-parole period offence), a Court should make an assessment of the objective gravity of the offence applying general or principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence... Motive for commission of offence is an important factor on sentence...

112. The concept of “moral culpability” was used by the sentencing Judge in this case and in submissions to this Court. The term “moral culpability” has been used (in a somewhat flexible way) as part of the general law of sentencing. The term may be found in several decisions of the High Court. In Veen v R (No 2) ..., it was observed (at 476-477) that a mental abnormality may diminish moral culpability and an antecedent criminal history may illuminate moral culpability.

113. In Muldrock v R (at 140 [58]), it was observed that the applicant’s limited moral culpability may mean that retribution and denunciation did not require significant emphasis.

114. In Munda v State of Western Australia (at 621 [57]), it was said that the circumstances of the appellant being affected by an environment in which the abuse of alcohol was common must be taken into account in assessing his personal moral culpability, but that that must be balance with the seriousness of his offending.

115. In Bugmy v R...: “Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated, such that the offender’s moral culpability for the inability to control an impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

117. In Filippou v R at 72 [70]: “Certainly, a sentencing Judge must do his or her best to find the facts which determine the nature and the gravity of the offending, including the facts which inform the offender’s moral culpability.”

118. In Director of Public Prosecutions (Commonwealth) v De la Rosa...: McClellan CJ at CL at (43 [177]), observed that where a person’s mental health contributed to the commission of an offence in a material way the person’s moral culpability may be reduced.

119. Taking into account an offender’s moral culpability on sentence may be seen as consideration of one of the many factors which bear on sentence (sometimes pulling in different directions) which form part of the exercise of instinctive synthesis that the law requires: Markarian v R ...”

50. As is so often the case in sentence proceedings, DM did not give evidence to explain his life pattern or to explain his motive for the robbery. The caution advised by Smart AJ in R v Qutami [2001] NSWCCA 353 must be employed here.

51. I heard from his grandmother; I accept that she is sincere in her expressions of affection for her grandson and the desire to believe well of him. No other conclusion can be taken from her expressed and implied perceptions given in her evidence, but she is less than objective because of her affection for him and this taints the reliability of her opinion that he is truly sorry for what he has done on this occasion. According to her evidence, when asked why he did this, she attributed him with the response that he ‘did not know’.

52. It was submitted on his behalf that I would find his behaviour to be impulsive; I do not accept this to be so. I would though apply the term “opportunistic”; he saw the victim, he followed him, he set upon him and when the victim was down he kicked him repeatedly to the face as well as punched him. His motivation must have been to take the motor vehicle and other property stolen. His persistent attack upon a helpless victim was in my view cruel and unnecessary.

53. The background with which I deal later in this judgement provides explanation for his attitudes and his willingness to persist in his pattern of criminality. It would appear that at least to some extent those responsible for his care through his formative years have cast the die for his future. Even though it might be said that violence of this nature has been normalised for him, responses attributed to him reflect an awareness of his wrongdoing at the expense of others in the community. This bare summary will be amplified when I come to the discussion portion of this judgement.

54. Upon the blend of all the objective facts, the suffering of the victim, the considerations that might explain the commission of this offence consistent with the guidance provided by Johnson J, I would not demur from the consensus that the offending should be found within the middle range of objective seriousness.

THE VICTIM IMPACT STATEMENT

55. The victim observed these proceedings but did not take the opportunity to read his victim impact statement prepared by his daughter at his dictation. I understand that English is not his first language and anticipate that for this reason he did not read the document. The conduct of the hearing by way of a virtual courtroom to accommodate the risk of illness from the Coronavirus added difficulty, which encouraged the Court to the course followed with the statement.

56. Thus, the victim did not have the chance to directly confront DM with the consequences of his serious criminal offence. The value of Victim Impact Statements includes the opportunity given to the Court to understand what has befallen the victim and at the same time the victim is entitled to the opportunity to have this material put squarely before an offender so that they might know what they have caused their victim, particularly in a case such as this with resultant grievous bodily harm of some magnitude and psychological sequelae. I read in court the entirety of the victim impact statement to ensure that the victim could see that he has been heard and so that DM who appeared from custody via an audio visual link could hear the victim’s perception of what he continues to suffer.

57. There are photographs of the victim’s face depicting injuries suffered in this attack.

58. The Court has been given some insight into the magnitude of the impact of the offences upon the victim. I have taken the statement into account but I make clear not so as to aggravate the offender’s culpability or the sentence to which he is justly exposed, but as is appropriate in my view to mark the impact of this appalling behaviour. The presentation of the statement provides a compelling reminder of what follows for victims after such violence.

59. I note that there is no additional medical evidence against which to assess the subjective material from the victim regarding the post trauma distress which he describes, but the outcomes described are as one might expect. He has referred to his attendances upon health care professionals. I have no submissions or competing material to challenge the assertions that fall from the agreed statement of facts or the content of the victim impact statement describing the physical and psychological impact of this offence and I have not overlooked that there was no opportunity for cross-examination to test the assertions. The descriptions of the injury and sequelae in the documents before the Court allow appreciation of their significance, including the significance to the victim who suffered, to be brought to account in a factual matrix upon which sentence is to be determined. As serious as they are, it is noted that grievous bodily harm is an element of the offence, and therefore not taken into account as an aggravating factor, though the extent is weighed as part of the synthesis upon which I am embarked.

WHAT IS KNOWN OF DM

60. The offender was born in 2002 and is now 18 years of age. He has a deplorable antecedent record to which I have made some reference already. It is instructive however to consider the chronology of these offences against the subjective material that has been provided. Again there is the table with this information.

H Reference	Date of Offence	Offence
H59834130	18 January 2016	Enter enclosed land
H62303661	9 May 2016	Larceny
12 December 2016	Fail to appear
H120776402	7 June 2016	Enter enclosed land
H232119996	12 – 13 September 2016	Carried in conveyance taken without consent
12 December 2016	Fail to appear
H63629304	21 & 22 February 2016	Break enter and steal
13 March 2017	Drive dangerously
Take and drive conveyance without consent
Police pursuit
H65700768	26 & 27 May 2017	Take and drive conveyance without consent
13 June 2017	Police pursuit
Take and drive conveyance without consent
14 June 2017	Police pursuit
Never licensed – drive on road
29 August 2017	Fail to appear
H65651957	12 September 2017	Never licensed – drive on road.
Police pursuit
19 September 2017	Fail to Appear
H66077447	8 & 9 June 2017	Drive conveyance taken without consent
H66639568	12 September 2017	Drive conveyance taken without consent
Dishonestly obtain financial advantage by deception
23 September 2017	Carry cutting weapon
H406855292	24 January 2018	Driver refuse to disclose identity
Never licensed – drive on road
Drive conveyance taken without consent
Police pursuit
Drive dangerously
H68400246	16 July 2018	Assault law officer – not police
H71856581	17 August 2018	Police pursuit
H70687547	10 & 11 January 2019	Affray
Destroy or damage property
H70221827	21 March 2019	Drive conveyance taken without consent
Dishonestly obtain financial advantage by deception
Never licensed – drive on road
Never licensed – drive on road
Drive whilst disqualified
Drive whilst disqualified
H72818274	17 May 2019	Common assault
H72209265	19 June 2019	Never licensed – drive on road
Police pursuit
Use offensive weapon to avoid lawful apprehension
Drive conveyance taken without consent
H138890201	29 June 2019	Assault law enforcement officer – not police

61. In addition to his criminal antecedents he has a record of traffic offences. These extend to two pages and they are from the most recent, driving dangerously, and police pursuit; before that driving, never held a licence; before that another police pursuit, before that another police pursuit, before that dangerous driving. These are replicated in the antecedent report to which I referred. I note, however, that he is subject to periods of disqualification, the most recent of which commenced on 4 March 2020 and will extend to 3 September 2023.

62. The Children’s Court and the disposal of appeals from there in the District Court have employed various options from those available to address the purposes of sentencing, no doubt including any prospects of rehabilitation that one would expect were to be advanced on DM’s behalf. Control orders were most often accompanied by reduced custodial components for the extent of parole, to little avail, it would appear. Throughout his antecedent history are appearances for being called up for breaches of conditional liberty that was extended to him.

63. At the time of the robbery he was subject to 12 months’ probation for the offence of carrying a cutting weapon on 23 September 2017, the parole period for an offence of police pursuit on 24 January 2018, and bail for the offence of assault on the law officer, not police on 16 July 2018. His antecedents and conditional liberty breached by further offending are to be brought to account in accordance with R v Darrell Terry McNaughton [2006] NSWCCA 242. These do not increase the sentence that would otherwise be proportionate to the offence or offences, nor do they increase the objective gravity of the misconduct, but his record is an important consideration disentitling him to leniency that good character might have otherwise allowed him and is relevant to the extent to which the Court would accept contrition and remorse attributed to him of which he has written in a letter to the Court, and whether there are prospects for his rehabilitation.

61. As I noted earlier, the offender DM did not give evidence but a letter was tendered written by him on 10 February 2020. It begins:

“Your Honour,

I have been in custody for eight months and I have thought about the offences I have committed.

I realise now that what I did was wrong. At the time of the offence I was under the influence of drugs. If I wasn’t on drugs I would never have done such a thing.

Now, I have been off drugs for eight months and I have been able to think about my past actions and that I have affected someone’s life in a bad way. I have been seeing my psychologist in custody regularly and working on CHART modules with my case worker.

I have had time to think about what I want to do with my life especially when I get out of custody. I would like to get a job, get my own place and get my life on track.

If I get released on parole, I will follow all my conditions and go to all my appointments. I will continue to take my medication to help with my mental health.

I hope you consider my letter when finalising my matters.”

65. In the absence of evidence from DM against the ongoing offending and the information regarding his response to supervision and the custody described in the Confidential Background Report, to which I will refer later, I attribute limited weight to these representations.

66. I heard from his grandmother who spoke of what she perceived to be difficult formative years because of the arrangements for his care through a New South Wales Government Department responsible for his placement.

67. As I noted earlier, he is charged by the family name “M” but he prefers to be known by the family name of his birth father “C”. The significance of this is illuminated by what his paternal grandmother told the Court.

68. His mother was in a relationship with a man she identified as JM Jnr (mother’s de facto partner) to whom there were two children born. Within the same period she formed an association with JC and gave birth thereafter to DM.

69. The “M” family claimed DM as their son and grandson but this was challenged by his grandmother, Mrs O (biological grandmother), who gave evidence to the effect that she is DM’s grandmother and mother of JC, and, notwithstanding her efforts to protect DM from the deprivations demonstrated by the “M” family, the Department put DM into their care over her objection. Mrs O described the “M” family as a criminal group facilitated if not directed by JM Snr (mother’s de facto partner’s father) who at some point was prosecuted for the supply of methylamphetamine and sentenced to gaol. Nevertheless, she said that DM was returned to the family. She spoke to having had DNA testing performed which confirmed that DM was JC’s son and thereafter she has had some role in his care and upbringing. JC, in 2014, was killed in a motor vehicle incident after the relatively short period that DM was becoming familiar with his birth father.

70. Her description of what he experienced in the “M” family and generally through his formative years was relatively bleak, but the evidence was not entirely satisfactory in the way given, expressing conclusions with assertions of fact of which Mrs O could not have had direct knowledge, but must have been sourced in what she was told by others, including DM. To some extent her evidence suggested reconstruction. Overall, I found it difficult to determine from her evidence the extent of the challenges that she suggested DM faced throughout his life, how that might have impacted upon his pattern of offending, and what might be the causal connection, if any, between his experiences and the offences with which I am concerned.

71. There are reports with which I shall deal with shortly upon these matters, but the evidence given by Mrs O, though relatively extensive was without sufficient particularity or with reference to items upon which provenance of her perceptions might be assessed.

72. I raised this in the course of the hearing and allowed the opportunity for instruction to be taken upon whether further evidence should be sought including from the relevant departments of State, which would include the police holdings, to assess what was said of the “M” family. Upon resumption there was no application for the opportunity of further inquiry and presentation of evidence and I was asked to deal with the matter upon the material presented.

73. I referred the parties to R v K [2000] NSWCCA 24 in the course of this discussion. It was perhaps an extreme case but demonstrated that regardless of the ferocity of the homicide there under consideration the challenging circumstances of childhood could ameliorate the punishment that might have otherwise been appropriate. At para 16 Sully J, with whom Grove and Simpson J agreed, wrote:

“16. It is clear enough from the reading of the remarks on sentence that Hulme J was, indeed, profoundly moved by subjective pictures of the respondent as established by the evidence before his Honour. That was, in my respectful opinion, entirely understandable given the detail of the evidence. The respondent’s personal history was, by any reasonable reckoning, appalling.

It was a history of cruelty, of gross neglect; of every kind of personal, social and familial dysfunction. One is reminded of the stinging observation of Holmes JA in Ex parte Corbishley; re Locke [1967] 2 NSW R 547 at 549:

“The picture is one which shows how the poor, sick and friendless are still oppressed by the machinery of justice in ways which need a Fielding or a Dickens to describe in words and a Hogarth to portray pictorially.”

17. If one deletes the words “machinery of justice” and inserts the words “inadequacies of the machinery of child welfare”, then what Holmes JA had to say about Mr Corbishley is entirely appropriate to be said about the present respondent.”

74. The evidence before me from sources other than by implication from DM’s grandmother does not describe circumstances such as persuaded Hulme J in the Court of Criminal Appeal of the merit of the recognizance extended pursuant to s 558 Crimes Act 1900 which applied at the time.

75. DM’s case comprises of evidence from his grandmother and of a series of reports.

76. I should at this point further summarise the evidence given by Mrs O. I would note that she gave her evidence in a virtual courtroom after calling in on a telephone line; that is clearly not the most ideal medium through which to assess the credibility of a witness giving evidence in proceedings. However, I accept that Mrs O spoke with complete sincerity in what she had to say. The question that arises is the extent to which the Court can rely upon the accuracy of which she has advanced.

77. She told me of her relationship with DM, that in November 2018 guardianship was transferred to her; that in 2005 he was removed from the “M” family into care; that all of those who cared for him were cut from his life by the Department; that she took steps because of her perception that he was in an unsafe environment. She spoke of the “M” family being known to police, she spoke of his conditions being inappropriate including that he was required to share a bed with two other children.

78. She spoke of JM Snr being prosecuted for the supply of methylamphetamine and that notwithstanding the Department responsible for his placement returned him to that environment. She spoke of the DNA procedures undertaken in 2010, the results being made available in 2011 confirming that the “M’s” have no blood connection with DM; they were presented to those who at that time were making decisions confirming who were his biological family. She described the relationship between her son and DM’s mother and her apparently concurrent relationship with JM Jnr. She spoke of JM Jnr in the presence DM having beaten a dog and set it on fire, about which she said there is a report somewhere but could not say whether it had ever been reported to the police.

79. She said that off and on DM would come to her. She said in her home the family had structure. She spoke of him having come from Juvenile Justice in 2016, she spoke of having lost him when JM Jnr travelled to Tumbarumba and picked him up and took him back to the “M” home.

80. She said she has spoken to him since the offence, she said that he said to her after crying “I don’t know why I did this”. He admitted to her that he had assaulted someone and taken the car. He said he took the car and drove it back to Wollongong. She spoke of his use of cannabis and his evolution to what she described as crack, intending to represent that he was using, in her word, “Ice”, the street name for methylamphetamine. She said that the first time he ever injected that drug was on the day of this offence.

81. It is not clear whether she was speaking of what was said to her by DM or whether she was drawing from documents that have been raised in relation to this matter. She acknowledged that she had seen reports that were prepared for the purposes of this case.

82. She spoke of the rehabilitation programs, including the “Therapeutic Life Story” about which I shall say more. There was reference to complex trauma and identity problems with participation by her and Ms Vance who provided a report. She spoke of him starting to improve and of this program having made a difference, and of when he had found contraband, handed it in, and reported to her some incident not further described. These were responses she said that would not have happened in the past.

83. It is difficult continuing with whatever program is available to him because at the present time the centre where he is held has been closed down because of the Coronavirus. There is the enhanced support unit which will be available to him after he is sentenced and she said that she will have him at home once he is released to parole.

84. The Crown cross-examined Mrs O. She confirmed that he was not living with her on the day of the offence and had gone back to live with his mother. That raises questions because, as I understood what has been said, his mother was at least in part responsible for the environment from which he came, upon which his reliance is placed for the suggestion that he experienced in the past some measure of trauma. Mrs O said that when he is with her he is loving, does the lawns, and he is good. She spoke of the extent of her home and the accommodation that can be provided and of her parental responsibility for all of the young people that are living with her.

85. She spoke of him leaving her home on multiple days. This was a little confusing, I might say, when she was asked these questions, but as I understood it there were five occasions he left her home and did not return but ended up in Juvenile Justice. The circumstances were not further described by her.

86. She said that according to her perception of matters he would not have been in Burwood visiting anyone. Of the young woman KR she said she has heard of her but not met her. There is reference in the material to which I will come, of KR as DM’s girlfriend. Mrs O’s perception is that she is not his “significant other”, but she explained that on the basis that her understanding of the term was that it applied to blood relations, such as grandparents, parents and the like.

87. She said though that she did not know that he was in a relationship with KR, did not know her personally, did not know the man Leahey, she had not heard of him apart from reference to him in the documents which she had seen. She said that she did not know him to be maintaining contact with negative peers; she said she did not know his friends. She said he has never brought anyone to her home and that they did not discuss the individual friends with whom he might have associated, although the conversations they had was about his group of friends generally in the Illawarra area.

88. He did not tell her about the offence immediately; it took some time before she was told what had occurred; but then she attributed to him the following:

“He was at the courthouse, got a lift there, and he saw a man, he followed the man asking for his keys and a fight started, and then he took the car.”

89. That is not an accurate description of the attack upon which he engaged against this victim. When she asked why he so behaved, he said,

“I was sitting around, I don’t know why Nan”.

90. The documents that have been tendered include the Confidential Background Report written on 17 March 2020 by Michael Rumble and countersigned by Assistant Manager Anne Pascoe. The report provides a history of his involvement with Youth Justice. The file material indicates that his response to supervision was poor; he would regularly miss appointments and failed to participate in assessment background reports. He demonstrated a concerning trend of being released into the community and returning with fresh offences, after spending only several weeks at large. Youth Justice has had very limited opportunity to engage in interventions with him in the community setting. Historically, his response to custody has been poor and he is frequently involved in violent or aggressive behaviours against staff and other detainees and self-harm.

91. His incarceration since 19 June 2019 has included concerning behaviour, he has been involved in some 24 recorded serious incidents and nine misbehaviours including aggressive behaviours against staff and other detainees, self-harm, possession of unauthorised articles, bad language, disobedience, harassment, refusal of direction and property damage. There have been four periods of detainee risk management plans to manage his behaviour, to increase safety and security in the centre.

92. Positively, he has displayed an ability to engage in self-development programs in custody, he has been involved in cultural programs and prior to be being placed on the detainee risk management plan he was attending fulltime education. He engaged well in class and generally met behaviour expectations.

93. This demonstrates one might say a capacity for appropriate behaviour, at least providing some basis upon which to find that there are some prospects of rehabilitation.

94. On 12 February 2020 he was transferred to the Frank Baxter Centre and placed in the high risk unit. There his conduct has generally been satisfactory, he was participating generally in programs and attending school every day and is currently being assessed to enter the enhanced support unit, located at that centre. I have a document explaining what that will involve, to which I have had reference.

95. There is reference to his hospital admissions due to self-harm and the ongoing intensive support and counselling which is provided by the centres psychologists and visiting psychiatrist. He commenced the “Therapeutic Life Story Work” conducted by Ms Karen Vance, about which I commented briefly earlier; I will come to her document shortly. This is pursued in conjunction with his grandmother; he has participated in approximately 12 sessions; once again this seems to bode well for his rehabilitation.

96. According to the section dealing with family and living circumstances, in the earlier years of his life under the care of his mother and her partner, he lived in premises with his two older half-brothers. Between 2004 and 2006, 12 reports were made to Community Services regarding concern for the safety of the children. These recorded lack of appropriate supervision, ongoing neglect, physical abuse and drug use by his mother, threats by her to harm herself and her children, and unknown males frequently attending the house. When he was three, he and his siblings were taken into care and Community Services had the case management of the family. He grew believing that JM Jnr was his father but in 2011 learned that JC was in fact his biological father; he died in 2014.

97. In 2015 he moved in with Mrs O and her husband, with the approval of Community Services; however he absconded from there to live with his mother in 2016 and then returned after a short remand period in custody in July 2017 to live with his grandmother.

98. In November 2018 Community Services handed over parental guardianship to Mr and Mrs O. There is an inconsistency in whatever it was that he was experiencing in the “M” household and his apparent move from Mrs O’s home to return to his mother, where he said he was mistreated. I have nothing before me other than these remarks about the circumstances in which he was living through those formative years.

99. The report continues with reference to attempted suicides on two occasions and his return to his biological mother intermittently, his responses to boundaries that are implemented are poor, and he continues to engage in antisocial behaviours including drug use. Mrs O described him being absent from her home for three days with his whereabouts unknown and that he does not maintain compliance with his prescribed medication.

100. His education history is poor, his behaviour at school was less than satisfactory, he has demonstrated some capacity for work and over time he has demonstrated some capacity to apply himself to opportunities for education such as they might be in his present circumstances. His peer associates engage in antisocial behaviours and they are well known to the agency and police.

101. It is also apparent that Mrs O has maintained contact with Youth Justice and I would accept that this is in the interest of her grandson whom she has as her main focus.

102. He has a history of substance abuse including cannabis from the age of 12 and methylamphetamine from the age of 14 with occasional alcohol use. In another report, to which I shall come, his misuse of drugs extends to cocaine and heroin, according to what was reported.

103. He was given bail on 23 May 2019 to enter the program for adolescent life management at Canberra but was exited from that program after ten days for disciplinary reasons. He was argumentative and offered challenging behaviour with other participants. He was encouraged to reapply but he has been in custody effectively since that opportunity was communicated to him.

104. In the section dealing with personality behaviour there is reference to his lengthy criminal history and his poor compliance with supervised orders and reporting requirements, involving numerous breaches. He reported that he was living on the streets at the time due to his extensive drug use.

105. Although he reported limited memory of the offence, he said his actions were motivated by survival because he was living rough; that does not quite sit comfortably with the nature of this offence and his theft of a motor vehicle which he used to travel south towards Wollongong.

106. The report refers to Youth Justice Records and the proposition that he experienced trauma from his early childhood; that has not been further particularised or described.

107. He is said to have been diagnosed with major depressive disorder, complex trauma, conduct disorder and substance use disorder. The maintenance of his medication upon release is a matter of concern.

108. Again there is a discussion of positive aspects, including his commencement of the “Therapeutic Life Story Work” program, there to help him reflect upon past traumas and move through his life, beyond whatever the experiences might have been.

109. Under the section dealing with attitude and beliefs, he was described as somewhat reluctant to participate in the assessment process for the report. He claimed that his memory of the offence was virtually non-existent due to his drug use at the time. This does not sit comfortably with what he had to say to his grandmother about what occurred. He claims that he injected methylamphetamine for the first time and then smoked “Ice” during the day until the offence occurred. He is attributed with the statement that he knows that what he did was wrong and he never wanted to hurt an old person. That does not sit comfortably with the ferocity of the attack upon which he engaged.

110. He displayed minimal insight and attributed his methylamphetamine use as being highly influential in his decision to offend. He mentioned his girlfriend as the co-offender, which must be a reference to KR. He spoke of her as a positive influence in his life.

90. I am encouraged in this report to turn to s 19 Children (Criminal Proceedings) Act1987 so that the custodial component can be served under the auspices of Youth Justice.

91. There is a report from Sarah Conorton, psychologist from Justice Health. This is a brief report that provides particulars of attendances for medical appointment. He was transferred to Frank Baxter on 12 February 2020, he was seen on 22 February 2020 for minor self-harm to his left wrist, his wounds cleaned and covered, he was reviewed on 23 February 2020.

92. There was an attempt by a clinical nurse consultant to see him on 24 February 2020 but he declined. He was seen on 25 February 2020 for review. He was seen on 29 February 2020 and 4 March 2020 by a psychiatrist. He was seen on 4 March 2020 for self-harm after swallowing a metal object and cutting his left arm with a metal object. On 5 March 2020 seven sutures were inserted.

93. He was seen by Dr Dhansay a psychiatrist. It was noted on 4 March 2020 that he had a background of complex trauma, emerging borderline personality disorder, and chronic significant deliberate self-harm, post-traumatic stress disorder, attention deficit hyper-activity disorder, medication was prescribed. He reported initial insomnia, sad and irritable mood, poor concentration with flashbacks and nightmares.

94. Another doctor, Dr Yumna, advised that he is at chronic risk of affective dysregulation and escalation of thoughts of harm to self and others.

95. As I noted there is a document telling me about the enhanced support unit to which DM will have access once I make the orders in accordance with s 19 Children (Criminal Proceedings) Act1987 at the end of this judgement. There is a report from Jeanne Wang, registered psychologist, speaking of his extensive history of non-suicidal self-injury. The most recent incident at the point of that report on 2 February 2020 was the infliction of the wound to his arm using a metal object. He was reviewed by a consultant child adolescent forensic psychiatrist Dr M Parsons on 3 January 2020 who offered her clinical impression that his presentation was consistent with complex post-traumatic stress disorder, borderline personality disorder with rapid oscillations in sense of self and acute drops in mood.

96. According to Justice Health and Forensic Mental Health Network database, he has presented to hospital emergency departments due to self-injury in 2019 on 26 February, 12 May, 17 July, 26 July, 31 August, 8 September, 20 November, 4 December, 13 December, 24 December and 28 December. With the exception of the 8 September when he deliberately ingested two AA batteries he inflicted lacerations using glass and metal or plastic knives. This behaviour followed feelings of anger.

97. Cameron Hubner provided a comprehensive report written on 12 March 2020 after reviewing DM at Frank Baxter Juvenile Detention Centre on 28 February 2020. The assessment was clinical and upon the administration of psychometric testing. She had access to reports written by Mr Rumble on 9 July 2019 and 20 November 2019; they are not included in the material before me. There is the report from Ms Vance, to which I shall come, and another report from Ms Wang, to which I have already referred.

98. The background information includes reference to the reports made to Family and Community Services regarding his safety, lack of parental supervision, neglect and physical abuse, exposure to his mother’s drug use and threats of “familicide” and unknown men frequenting the family home. This appears to be a replication of what is found in the documents to which I earlier referred.

99. At three years of age he was placed in the care of his paternal grandparents, who also used harsh physical discipline to enforce household rules; that is not further described. At age eight he was reunited with his biological father, who was killed three years later in a motor vehicle incident. He left school at aged 13. He represented an inability to make good decisions when in the company of delinquent peers. There is reference to his prior diagnoses of major depressive disorder, conduct disorder and substance use disorder, the opinion offered by Dr Annie Parsons upon review on 3 January 2020, and her impression that his presentation was consistent with complex post-traumatic stress disorder and borderline personality disorder with rapid oscillations in his sense of self and acute drops in mood.

100. The program “Therapeutic Life Story” is to help process childhood trauma. It is said that he has become more settled and able to stabilise his behaviour in his present custody. He presented with visible scars from his episodes of self-harm to his left arm. There is no overt sign of psychosis or thought disorder. Psychosocial background is described consistent with what I have already rehearsed, and that he was the only child born to his parents, their separation when he was an infant, and the formation of his mother’s relationship with his step-father.

101. This sequence does not appear to be comparable with my understanding that the other two boys are his older half-brothers. If that is correct, not a great deal turns upon it.

102. He reported having run away from home at age 13 - that must have been Mrs O’s home - and lived with his step-father and his step-father’s new partner who appears not to have been his mother. By then his step-father was “a junkie” who gave him minimal supervision or emotional support. He spent time with peers with whom he smoked cannabis and “ice”.

103. That description is inconsistent with the history that I have been given in other documents to which I have referred so far.

104. He eventually left this home and lived with his biological paternal grandparents. Regarding them, he is attributed with the following:

“However, he said he ‘didn’t know them’ so fled to live ‘on the street’. He continued to abuse drugs and to be involved with the law.”

126. That is inconsistent with what I have already rehearsed.

127. In due course at age 15 he was bailed to live with his paternal grandparents where he remained for two months and by then he believed that his grandmother wanted good for him and he was happy to stay with her, that part of the report is material upon which I can add to the other bases upon which I can find that there is some prospects for rehabilitation and employ special circumstances to reduce the custodial component that the sentencing must face.

128. He acknowledged the history of fighting and disobeying directions and disrespecting his teachers in the course of his education. Apart from a couple of weeks work he has no vocational history.

129. Scars of self-harm and healing wounds from self-harm on his left arm were confirmed. He spoke of being diagnosed with a major depressive disorder but was unaware of any other diagnoses. He said he tended to self-harm when thinking about the abuse that he had suffered during childhood episodes of anger and self-loathing.

130. I note that there is no description of whatever the abuse might have been or its extent or when it occurred in the material before me.

131. His substance use is as rehearsed, his forensic history is discussed, his violence towards employees of Youth Justice is justified apparently with the following quote:

“They treat us like dogs and it gives me flashbacks of being abused.”

132. There is reference to his 16 year old girlfriend, KR and the offences.

133. He admitted having chased, assaulted and robbed the victim of car keys, wallet and two mobile phones while his girlfriend and Mr Leahey remained in the car. He said at the time he was unemployed, residing between various friend’s homes, and on the street smoking cannabis cones and ice at the rate of 3.5 grams daily, and was experimenting with heroin. He injected ice for the first time on the day of the offence.

134. He spoke of only having vague memories of encountering the victim. He is attributed with assertions that he knew that what he did was wrong and he should not have done it, and how would he feel if someone did that to his “pop or dad”.

135. Another proposition which causes me some difficulty is in paragraph 29 of this report where the following appears:

“He also expressed shame associated with his involvement in the offence such that he had refrained from telling anyone about it other than his paternal grandmother. He also said, ‘if I tell my brothers, they’ll turn on me, and I’ll have nobody’.”

136. I take that to be a reference to his half-brothers with whom he lived in the environment where, inconsistently, he is said to have suffered some abuse leaving him with post-traumatic stress.

137. His short term goals for the future are to spend time with his mother, his brothers and his paternal grandparents. Thus, it is difficult to have a view of precisely what he experienced and with whom through these formative years, upon the material that I have.

138. Psychometric testing, I accept, has demonstrated that he has significant limitations. His profile indicates the presence of negative impression management; there were elevations on the personality pattern scales. The results indicated at least the possibility of severe personality dysfunction with marked emotional and behavioural instability, and involvement in erratic interpersonal relationships with intense fears of abandonment characterised by oppositional self-destructive behaviours.

139. The results of the testing might indicate feelings of depression and pessimism, family discord, self-devaluation and body disapproval and a sense of estrangement from his parents. He is likely to be dissatisfied with his self-image; he has an elevation in substance abuse proneness with depressive affect and suicidal tendency.

140. The report includes a summary of all of these clinical and psychometric assessments. It is noted that a formal diagnosis of intellectual disability could not be made because of his active symptoms of mood disorder; apparent cognitive limitations may have also impeded his ability to inhibit impulsive and dominant behavioural responses in order to select more appropriate behaviour consistent with completing his personal goals.

141. This is all developed upon the opinion that he is a young man with a dysfunctional upbringing that includes neglect and physical abuse with possible cognitive limitations, without adequate education, without employment and periods of homelessness.

142. It is said that it appears he has also developed severe mental health problems, including a major depressive disorder, substance abuse disorder, underpinned by post-traumatic stress disorder and cluster D personality traits.

143. There is a risk of institutionalisation because of the pattern that has evolved and the report provides a series of recommendations.

144. The document provided by Ms Vance deals with what is hoped to achieved with the “Therapeutic Life Story Work” program, in the phases through which he will be taken, the summary of his abusive discipline, so described, in the “M” family home, and his decision in 2015 to live with his paternal family. This description is not entirely consistent with what has been presented elsewhere, with regard to who made what decisions about his placement. What is clear though is that his grandmother, Mrs O, has been an active participant in this exercise attempting to do what she can for him.

145. Ms Vance sought information to facilitate this process in conversation with his mother and Mrs O and his brother. There is also contact with his primary school principal. His foster kinship carer MM, who I anticipate might be the wife to JM Snr, would not participate in the process. She has also spoken to the FACS case workers seeking their memories of having worked with DM and his family. Her report does provide bases upon which to conclude that there are prospects for his rehabilitation.

SUBMISSIONS AND CONSIDERATION

146. I have submissions in writing from both the Crown and Ms Raymond. Both are comprehensive and thorough and assist me with what I need to bring to bear in the assessment in this case.

147. I have already referred to the presentence custody referable to these offences. The Crown has invited me to consider s 6 Children (Criminal Proceedings) Act, which I must do. Where there is a conflict between the general purposes of sentencing in s 3A Crimes (Sentencing Procedure) Act any tension should be resolved using an intuitive synthesis based upon judgement and experience.

148. Both representatives argued that this is within the mid-range of objective seriousness. The driving offence the Crown contends is at the upper end of the scale of objective seriousness. It probably is so but in light of the sentence I am going to impose for the robbery I intend to employ s 10A Crimes (Sentencing Procedure) Act after conviction, although the disqualification period will attach in accordance with the orders I intend to make.

149. I am reminded of the significance of the record of previous convictions including personal violence offences. I accept the proposition in accordance with Melvaine v R [2019] NSWCCA 274 and what was said by Howie J in McCullough v R [2009] NSWCCA 94, at paragraph 30, that this offence should be seen to be one that involved unnecessary violence and cruelty. Whether it should be seen within the terms of the phrase ‘gratuitous cruelty’ might excite discussion, but the offender walked alongside of this victim, who sought to escape, he was chased, he was pushed against a wall, he was punched, he was put to the ground and then he was punched and kicked in the face, leaving him with grievous bodily harm which I have already described. In my view the term ‘gratuitous’ does apply to this conduct.

150. I am reminded of the Henry guideline judgement and other factors that will inform the exercise of sentencing discretion. I am also reminded of the discount of 25% for utility. I am reminded that there is a role to play in general and specific deterrence in this case. The Crown argues that there should be a strong element of general deterrence for this type of offence.

151. The guideline in s 5 Crimes (Sentencing Procedure) Act 1999 has been crossed and it is noted that his history of rehabilitation has been demonstrably poor. There is a real risk of him reoffending given the pattern that has developed over time. The Crown submits that I should be cautious not to take into account the same factors when reducing the head sentence to support a finding of special circumstances. I propose to find special circumstances, as I will explain.

152. The submissions made on behalf of DM refer to impulsive behaviour. I have offered in response my perception of the use of that term and that they more appropriate attribute is that this was an opportunistic crime.

153. I am also asked to come to the view that I would not find beyond reasonable doubt that he intended to inflict the degree of injuries suffered by the victim. I do not accept that submission. When such as occurred here, someone is punched to the ground and punched in the face on the ground and then kicked in the face, the precise extent of the injuries intended might not be capable of proof, but there could be no other consequence from such an attack but grievous bodily harm of the type that was inflicted on this occasion.

154. I was also asked to consider that his mental health was causally connected to the offending and reduced his moral culpability; I shall say something about that shortly.

155. I am reminded of s 6 Children (Criminal Proceedings) Act and the principles that are relevant to the sentencing of children and consideration of their capacity to reform, the potential for cognitive, emotional and psychological immaturity, and that where immaturity is a significant factor in the commission of the offence criminality will be less. General deterrence and retribution cannot be given the same weight in such as case, although they cannot be completely ignored.

156. Paragraph 25, however, of the judgement of McClellan CJ at Common Law in KT v R [2008] NSWCCA 51 at [25] is noteworthy:

“The emphasis given to rehabilitation rather than general deterrence and retribution in sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity... In determining whether a young offender has engaged in “adult behaviour”... the Court will look to various matters including the use of weapons, planning or premeditation, the existence of an extensive criminal history and the nature and circumstances of the offence...Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society.”

157. I am satisfied that in this case there is a need to provide for the protection of the community.

158. I have given a summary of the background of disadvantage upon which the submission was developed for the application of decisions such as R v Fernando [1992] 76 A Crim R 58 and Bugmy v The Queen [2013] HCA 37. I am reminded of s 29A(5AA) Crimes (Sentencing Procedure) Act1999 - self-induced intoxication is not brought to account as a mitigating factor, although it is to be noted in accordance with what was discussed by Woods CJ at CL and of Simpson J in R v Henry [1999] 46 NSWCLR 346, that his use of drugs against the history he has accumulated against what he suffered through his formative years provides an explanation for his misuse of those substances under the influence of which he said he committed this crime.

DISCUSSION

159. Whenever called upon to determine sentence the analysis required of the Court extends from the objective facts of the offence to the background and circumstances of the offender to ascertain, if at all possible, what it was that led to the commission of the offence. The importance of the exploration of the reasons for the misconduct is heightened in the case of a child offender because of the importance of identifying, if possible, motivation or reasons for the misbehaviour and the extent of their causal connection with the decision made to commit the crime.

160. In a case of a child offender the need to have reliable evidence upon which to find those facts as might provide the Court with the opportunity to address the sentence and structure of the sentence to maximise the chances of the offender’s rehabilitation is reflected in s 6 Children (Criminal Proceedings) Act 1987 which provides that the Court must have regard to the rights and freedoms of the child offender before the law, their right to be heard, their right to participate in the process, that they must bear responsibility for their actions but because of dependency and the lack of maturity they might be in need of guidance and assistance, that it is desirable to allow education or employment to continue without interruption, that it is desirable to allow them to reside in their own home where possible, and that the penalty should be no greater than that for an adult who commits an offend of the same kind.

161. It is desirable that children who commit offences be assisted with their reintegration into the community to sustain family and community ties. It is desirable that children who commit offences accept responsibility for their actions and where possible make reparation, and consideration must also be given to the effect of any crime on the victim.

162. It is apparent that those who provided the reports tendered in these proceeding wrote upon the findings and opinions of others attending before them, including representations to those others which subsequent authors have sought to verify, and upon self-reporting by DM. I have commented upon aspects of the documents as I rehearsed their content in the portion of the judgement dealing with what is known of DM. In some places these comments reflect inconsistencies that I have been unable to reconcile satisfactorily.

163. Regardless of what the writers might conclude, drawing upon documents created by others from time to time and out of court representations, and that in the proceedings those assertions are admissible, it is for the Court to make its findings of fact upon which to determine the appropriate sentence and structure, and therefore the Court should be given the opportunity to consider the primary material for assessment within the context of the history DM has accumulated since his first offence.

159. The burden of proof of matters in mitigation of penalty falls upon the child upon the balance of probabilities and if the evidence is lacking he will have failed to establish those facts: R v Olbrich [1999] HCA 54.

160. In this case it is said that DM suffered events which gave rise to post-traumatic stress and other sequelae, but those events and their circumstances are presented in the most general of terms with a measure of inconsistency as I earlier suggested, such that I find there are insufficient grounds upon which to assess their severity, frequency or the particularity of the circumstances of DM at any given time.

161. The evidence of Mrs O carried with it the implication that when he was in the care of the “M” family he was exposed to behaviour which perhaps contributed to his attitude to the community and the commission of crime, but it had without sufficient particularity to assess the reliability of that proposition.

162. Those who have provided reports rely upon what they were told but there is no material presented upon the home-life said to be so challenging for DM to which he appeared to have voluntarily returned, at least occasionally. There is no material upon which I can find any particular explanation for the decision to commit these offences or how his background, if accepted as represented to the Court, caused him to commit this robbery. I find that he did so when the opportunity presented, without regard for the victim, once again in the pursuit of desire to take and use a motor vehicle to which he was not entitled.

163. Whether the cause of this behaviour is a product of what was taught him as acceptable or normal by those responsible for his care, whoever they might have been, is not known. This is not to gainsay that the principles for which decisions such as Fernando [1992] 76 A Crim R 58 and Bugmy [2013] ACA 37 stand as authority. Appropriate weight must be given to disadvantage to which he has been subject throughout his life so far, regardless of the extent to which it might or might not be found to have contributed to his offences.

164. Moreover, scant though evidence is speaking to this aspect, there is sufficient to find that for whatever reason the guidance and nurturing a child should have throughout their formative years was not available to DM. The reason for this and whether it has contributed to his offending on this occasion and previously cannot be stated with more particularity. I have no adequate evidence of severe trauma upon which there is comment or what was involved, or by whom it was inflicted.

165. Regardless of the absence of primary material explaining his participation in these events, it is apparent that there has been a made a record of self‑harm requiring intervention by health care staff. He suffered self-harm which of itself bespeaks psychological issues and supports the assertions that there are characteristics observed consistent with suggested diagnoses. Moreover, there was psychometric testing which supports the existence of psychological impairment.

166. In further support of this analysis I note that the Crown did not oppose the tender of the material offered on behalf of DM and has not required any of the authors of the various documents for cross-examination or called evidence to flesh out the conclusions and opinions therein.

167. I am satisfied that DM’s challenges described by the psychologist Ms Hubner will add to his burden while serving the custodial component of his sentence. I have had regard to the Director of Public Prosecutions Commonwealth v De La Rosa [2010] NSWCCA 194 where in para 177 McClellan CJ at Common Law wrote of the significance of psychological and mental health issues.

168. I have had regard to the purposes of sentencing set forth in s 3A Crimes (Sentencing Procedure) Act 1999 and these I have considered in conjunction with s 6 Children (Criminal Proceedings) Act1987. The considerations there sometimes overlap and sometimes point in different directions; the impact of punishment and general deterrence and denunciation is ameliorated in cases such as this when the offender was a child at the time of the offence. However, those considerations continue to have their role consistent with what was said in the decision of KT v R ibid, to which I earlier referred.

169. Attributing appropriate weight for each of these considerations results, in this instance, in the imposition of sentence of imprisonment, assessed upon the synthesis of objective and subjective matters to which the discount of 25% for utility is to be applied. I am satisfied that the deterrence of the offence and the need for the protection of the community are of significance in light of the nature of the offence, against a background of persistent offending and in the absence of strong prospects of rehabilitation of the offender.

170. I am also of the view that I should increase the period of parole and correspondingly I reduce the custodial component of the sentence to allow DM to exploit such prospects as there might be for rehabilitation. I am satisfied that there are some. The contents of the reports indicate that he is capable of committing to rehabilitation, education and employment, if he is so minded.

171. He must also commit to medication prescribed for him and abstain from illicit drugs. The longer period on parole, if he avails himself of such opportunity, it is hoped will facilitate rehabilitation, the importance of which one hopes will be more appreciated by DM as he matures.

THE NATURE OF PROPOSED CUSTODY

177. I have had regard to s19 Children (Criminal Proceedings) Act, in particular subs (3) which requires that the Court be satisfied of certain matters before it can order that he serve the custodial component of a sentence as a juvenile offender. It is submitted on behalf of the offender that I should make a finding of special circumstances as contemplated in s 19(3)(a) of the Act and direct that he serve the sentence as a juvenile offender.

178. I accept that there are special circumstances that justify the orders sought. I find that DM is vulnerable on account of illness from disability within the meaning of that term and the Anti-Discrimination Act 1977. That definition provides that disability means any of the following:

1. total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or

2. the presence in a person’s body of organisms causing or capable of causing disease illness, or

3. malfunction, malformation of person’s body, or

4. a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

5. a disorder, illness or disease that affects the person’s thought processes, perceptions of reality, emotions or judgments that results in disturbed behaviour.

179. I am satisfied that paras (d) or (e) are of application here.

180. I am satisfied that there is sufficient evidence before me to found the application of those paragraphs of the definition. He has demonstrated the propensity for the infliction of self-harm. I am satisfied that the Enhanced Support Unit available at the Frank Baxter’s Justice Centre is appropriate for DM and that it is not available in an adult facility. I am also satisfied upon the material before me that the only available educational, vocational planning and therapeutic programs that are suitable to his needs are those available in such as the Frank Baxter detention centre and in that regard I refer to the Metro ISS Therapeutic Life Story work program, upon which Ms Vance reported.

181. Moreover, I take the view that these provisions should not be read narrowly. It would beggar belief to accept that there is limited risk of infection from the Coronavirus in correctional facilities. It must be impossible to provide for adequate separation between inmates to avoid transmission of the disease, if present within those facilities.

182. I accept what has been said on behalf of DM albeit without evidence upon the point that there is a reduced risk in the Juvenile Justice facility where he is presently detained.

THE SENTENCES

183. DM is convicted of both offences before me.

184. For the offence of robbery with corporal violence causing grievous bodily harm I impose a sentence of imprisonment consisting of a non-parole period of 3 years commencing from 30 October 2019 and a head sentence of 6 years. He will become eligible to be released on parole on 29 October 2022. This term has been reduced by a discount of 25% for the plea of guilty. I order that the sentence is to be served as a juvenile offender until the time when he must be removed from such custody in accordance with the Children (Criminal Proceedings) Act1987.

185. For the offence of drive motor vehicle without ever being licensed, I impose no penalty pursuant to s 10A Crime (Sentencing Procedure) Act 1999. I specify a statutory period of disqualification of 12 months. I note that by force of s 207A(1) Road Transport Act 2013 the period commences upon the date of conviction unless the Court orders it is to commence on another date.

186. From the offences resolved in the District Court on appeal to which I have referred, DM is subject to concurrent disqualification periods from 4 March 2020, the last of which will expire on 3 September 2023. I shall in the circumstances order that the commencement of the disqualification period from 4 March 2023. There will be an accumulation by six months upon that order.

187. I will repeat for everybody’s information;

• For the robbery there is a non‑parole period of 3 years 30 October 2019 to 29 October 2022 with a further period of 3 years during which he shall be eligible for parole, I have applied 25%. The sentence is to be served as a juvenile offender until he must be removed in accordance with s 19 Children (Criminal Proceedings) Act, and

• The disqualification period for the driving without a licence offence is 12 months commencing on 4 March 2023 to expire on 3 March 2024. There is no other penalty imposed in respect of that offence.

188. So far as the Crown is concerned is there any other order required?

189. CROWN: Yes your Honour

190. HIS HONOUR: No other order? All right. Ms Raymond any other order required so far as you are concerned?

191. RAYMOND: The only matter that I was just mulling over, your Honour, and I think perhaps I have resolved it, is, your Honour has imposed a sentence in relation to never licensed driver s 10A Crimes (Sentencing Procedure) Act. My initial thoughts, which are contained in my submissions, is that your Honour had to deal with that particular matter under the Children (Criminal Proceedings) Act 1987 sentence regime which doesn’t have an equivalent s 10A.

192. HIS HONOUR: You’re right actually but I don’t have a copy of the Act here with me. I don’t want to - under s 33, do you have that available to you there.

193. RAYMOND: Yes.

194. HIS HONOUR: There is an order I can make upon conviction without any further penalty, I am sure.

195. RAYMOND: Your Honour the only available order available is tantamount to a s 10(1)(a) which wouldn’t give the disqualification, but your Honour could impose, for example, a nominal fine which is really the only outcome I was thinking your Honour could impose in that respect. The one, it has just occurred to me as I sit here and I haven’t thought it through, is that there is the exception for the jurisdiction of the Children’s Court where it is just a traffic matter and the offender is of a licensable age, it can go to the Local Court unless it’s joined in other proceedings. I haven’t thought about the fact that this has come up on a 166 in that respect and whether your Honour could for example impose a s 10A. I know that doesn’t help your Honour, it’s just something I’ve been thinking about.

196. HIS HONOUR: I think, though I may be wrong in this, I don’t profess to be an expert on this, but my memory is for traffic offences I have available to me those provisions which would apply to a driver regardless of their status as adults or children and for that reason I thought 10A was available to me. I might leave the order extant at the moment, what will inform that question will be JusticeLink I think, because if it can’t be employed on the application of that Act, JusticeLink won’t accept it. But I’ll have a look at it in the meantime and I’ll see what other order I can make if 10A is not available to me to achieve the same outcome.

197. RAYMOND: Thank you as your Honour pleases.

198. HIS HONOUR: Thank you for bringing that to my attention I will see what I can find and I’ll have my associate communicate with both the Crown and with you via email with the result of those researches, if you come across anything that can assist me in the resolution--

199. RAYMOND: Of course.

200. HIS HONOUR: Notify the Crown and also notify my associate I’d be grateful.

201. RAYMOND: Thank you your Honour.

202. HIS HONOUR: All right, all the material will remain on file for as long as the parties might require it and I’ll leave you to make contact with your client to explain to him what it all means.

203. RAYMOND: Thank you your Honour.

204. HIS HONOUR: I’ll adjourn.

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Decision last updated: 16 June 2020