R v YS - [2014] NSWCCA 226

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v YS [2014] NSWCCA 226
Hearing dates: 18/07/2014
Decision date: 23 October 2014
Before: Gleeson JA at [1];
Fullerton J at [2];
McCallum J at [114]
Decision:
1. Leave to appeal granted.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - appeal against inadequacy of sentence - serious children's indictable offence - objective seriousness of offending - protection of community and general deterrence - whether the sentencing judge erred in structuring the non-parole period to ensure total non-parole period would be served in a Juvenile Justice facility
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Children (Detention Centres) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes Amendment (Sexual Offences) Act 2008 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Cases Cited: BP v R [2010] NSWCCA 159; 201 A Crim R 379
Bugmy v R [2013] HCA 37; 249 CLR 571; 229 A Crim R 337
CM v R [2008] NSWCCA 195; 187 A Crim R 197
Dinsdale v R [2000] HCA 54; 202 CLR 321
Green v R; Quinn v R [2011] HCA 49; 244 CLR 462; 214 A Crim R 152
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520; 204 A Crim R 434
IE v R [2008] NSWCCA 70; 183 A Crim R 150
JM v R [2012] NSWCCA 83; 223 A Crim R 55
JT v R [2011] NSWCCA 128
KT v R [2008] NSWCCA 51; 182 A Crim R 571
MJ v R [2010] NSWCCA 52
Markarian v R [2005] HCA 25; 228 CLR 357
Muldrock v The Queen [2011] HCA 39; 244 CLR 120; 212 A Crim R 254
R v AEM (Snr), KEM, MM [2002] NSWCCA 58
R v Brooks [2006] NSWCCA 169
R v Fernando (1992) 76 A Crim R 58
R v Ly [2014] NSWCCA 78
R v Voss [2003] NSWCCA 182
TG v R [2010] NSWCCA 28
Veen v R (No 2) [1988] HCA 14; 164 CLR 465; 33 A Crim R 230
Category: Principal judgment
Parties: The Crown (Applicant)
YS (Respondent)
Representation: Counsel:
S Dowling SC (Crown)
B Rigg (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Aboriginal Legal Service (Respondent)

File Number(s): 2012/66487
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-12-19 00:00:00

Before:

McLoughlin SC DCJ

File Number(s):

2012/66487

Judgment

GLEESON JA: I agree with Fullerton J.

FULLERTON J: On 9 August 2012 the respondent pleaded guilty in the Children's Court to six offences, each of which was committed in the early hours of 28 February 2012. He was arrested later that morning. Bail was refused. He was aged 15 years and 10 months at the time of the offending.

On 19 December 2013, at which time he was aged 17 years and 6 months, he was sentenced in the District Court.

The offences for which he was sentenced are as follows:

(1) Aggravated break and enter and commit serious indictable offence contrary to s 112(2) of the Crimes Act 1900 (NSW) maximum penalty 20 years imprisonment.

(2) Aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act, maximum penalty 20 years imprisonment.

(3) Aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act, maximum penalty 20 years imprisonment.

(4) Attempted aggravated sexual intercourse without consent contrary to s 61J/344A of the Crimes Act, maximum penalty 20 years imprisonment.

(5) Steal motor vehicle contrary to s 154F of the Crimes Act, maximum penalty 2 year control order.

(6) Intentionally destroy property by fire contrary to s 195(1)(b) of the Crimes Act, maximum penalty 2 year control order.

Although the offences the subject of Counts 1, 2 and 3 attract standard non-parole periods, s 54D(3) of the Crimes (Sentencing Procedure) Act1999 (NSW) provides that they have no application where the offender is a juvenile; neither do they serve as any guide when sentencing a juvenile (see BP v R [2010] NSWCCA 159; 201 A Crim R 379).

The Children's Court Magistrate committed the respondent to the District Court for sentence for each of the offences the subject of Counts 1 to 4. Aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act (Counts 2 and 3) and an attempt to commit that offence (Count 4) are serious children's indictable offences as defined in s 3 of the Children (Criminal Proceedings) Act 1987 (NSW) which, pursuant to s 17 of the Act, must be dealt with according to law. The Magistrate also committed the respondent for sentence to the District Court in respect of the offending the subject of Count 1. It was common ground on sentence that the respondent should also be sentenced for that offending according to law, it meeting the criteria of seriousness in s 18(1A) of the Children (Criminal Proceedings) Act.

Counts 5 and 6 were referred to the District Court by way of certificate under s 166 of the Criminal Procedure Act 1986 (NSW). The maximum penalties for those offences are confined by operation of s 33 of the Children's (Criminal Proceedings) Act to a control order for 2 years. Control orders of 12 months and 15 months were imposed by the sentencing judge to date from 28 February 2012, the date of the respondent's remand. The control orders expired in May 2013.

After allowing a 25 per cent discount for the pleas of guilty the following sentences were imposed on Counts 1 to 4:

Count 1: A fixed term of 2 years and 3 months to date from 28 February 2012.

Counts 2 and 3: Sentences of imprisonment of 6 years with non-parole periods of 4 years partially accumulated by 6 months.

Count 4: A sentence of imprisonment of 6 years with a non-parole period of 3 years, accumulated by 6 months on the sentences imposed on Counts 2 and 3.

After a finding of special circumstances the sentences imposed on Counts 1 to 4 resulted in an effective sentence of 8 years and 6 months imprisonment with an effective non-parole period of 5 years and 6 months.

An order was made under s 19 of the Children (Criminal Proceedings) Act that the respondent serve his sentence as a juvenile offender in a Juvenile Justice facility. The effective non-parole period expires on 27 August 2017, two months before the respondent is 21 years and 6 months, the age at which he would be transferred to an adult jail were the non-parole period to extend beyond that date.

The Crown appeals the sentences imposed on Counts 1 to 4 pursuant to s 5D of Criminal Appeal Act 1912 (NSW). In addition to what it was submitted were manifestly inadequate sentences on each count, in the Crown's filed submissions two specific errors were relied upon:

(1) His Honour erred in failing to reflect the objective seriousness of Counts 2, 3 and 4 in the sentences imposed for those offences;

(2) His Honour erred in failing to consider the protection of the community and general deterrence.

On the hearing of the appeal the Crown sought leave to amend the grounds of appeal by adding a further ground:

(3) His Honour erred in structuring the non-parole period so as to ensure that the respondent would be eligible to serve his total non-parole period in a Juvenile Justice facility.

Leave was granted to both parties to file supplementary submissions addressing the further ground of appeal.

The proceedings on sentence

An agreed statement of facts was tendered together with a transcript of a record of interview in which the respondent participated on his arrest. The Crown also tendered a Juvenile Justice report which concerned offending pre-dating the offending the subject of the sentence proceedings, including an aggravated break, enter and steal committed on 6 February 2012. The respondent was subject to a grant of bail for those offences, and two good behaviour bonds, at the time of the offending.

The respondent did not give evidence. A number of expert reports were tendered, each of which was comprehensive in detailing the respondent's subjective circumstances, his psychiatric and psychosocial profile and the results of psychometric testing. They included reports from Dr Christopher Bench, forensic psychiatrist, dated 28 August 2013; Ms Catherine Hare, forensic psychologist, dated 23 October 2013; and Ms Shelley Cluff, a counsellor associated with the Juvenile Sex Offending Program, dated 7 November 2012. A report from Dr Emma Collins, a clinical and forensic psychologist, dated 7 March 2011, described as a research report, was also tendered. It addressed the risk of psychological or physical harm a juvenile offender might be exposed to in an adult prison system, considerations which inform the operation of s 19 of the Children (Criminal Proceedings) Act.

Written submissions by both the Crown and the defence were also tendered on sentence and reproduced in the appeal books.

The Crown's written submissions on sentence included the operative provisions in s 19 of the Children (Criminal Proceedings) Act. In summary, s 19(1) provides that where a court sentences a person under 21 years of age to imprisonment for an indictable offence the court may direct that the whole or any part of the term of sentence be served as a juvenile offender. Section 19(2) provides that eligibility to serve the whole or part of a sentencing term in juvenile custody expires when the offender attains the age of 21 unless that term of imprisonment itself is scheduled to expire within six months following that attainment. Where, as here, his Honour was sentencing the respondent in respect of a serious children's indictable offence, s 19(3) provides that the person is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 18 years unless:

(a) the sentencing court is satisfied that there are special circumstances justifying detention of the person as a juvenile offender after that age, or

(b) in the case of a sentence for which a non-parole period has been set - the non-parole period will end within 6 months after the person has attained that age, or

(c) in the case of a sentence for which a non-parole period has not been set - the term of the sentence of imprisonment will end within 6 months after the person has attained that age.

A finding of special circumstances may only be made on one or more of the grounds set out in s 19(4). Significantly for present purposes, special circumstances may not be found solely referable to an offender's youth or because the non-parole period will expire while the offender is still eligible to serve the sentence as a juvenile: s 19(4A). Section 19(7) stipulates that nothing in the Act affects the operation of s 28 of the Children (Detention Centres) Act 1987 (NSW), which provides that the Director-General may direct that a juvenile detainee be transferred to an adult correctional centre.

The Crown submitted that in the sentencing of juvenile offenders as reflected in s 19 of the Children (Criminal Proceedings) Act the intention of the legislature is clear. In short, the conditions of custody of a young offender are relevant to whether the offender should remain in juvenile custody after the age of 18 but that after the age of 21 the offender is to complete their sentence in adult prison.

The agreed facts

At about 2am on 28 February 2012 a 70 year old woman was in her bedroom in her home in Kempsey which she shared with her adult son. She was awake, reading, having had problems sleeping in the hot weather. She was dressed only in a nightgown. Her bedroom window was open but the screen over the window was closed. Her car was parked in front of the premises.

At about 2.20am the woman got out of bed to check the time on her mobile telephone. At that time the respondent and two co-offenders (one of whom was later identified and charged as an adult offender, being 18 years of age) were walking along the street intent on stealing a car. The woman heard noises from the front of her house. As she turned around she saw the respondent climbing through her bedroom window. He had cut the screen using a knife with a blade approximately 10 centimetres long. He still held the knife in his hands as he entered her bedroom. The two co-offenders remained outside, apparently keeping lookout. The forced entry to the woman's bedroom was the subject of the first count; the feature of aggravation that the break and enter was committed in company being part of a joint criminal enterprise to break and enter the premises and steal the car keys.

It was no part of the Crown case on sentence that the woman was aware of the co-offenders when the respondent entered her bedroom or at any time thereafter. It was no part of the Crown case in sentence proceedings against the only co-offender who was charged that he was aware of the sexual assaults the respondent inflicted on the woman whilst the respondent was in the house. That offending was the subject of Counts 2, 3 and 4.

Upon seeing the respondent entering her bedroom the woman screamed and began to back out of the room. The respondent demanded money and the keys to her car. The respondent then saw her car keys beside her handbag near her bed. He took the keys and cash from her wallet.

As the woman backed out of her bedroom, the respondent approached her with the knife held in front of him. Her adult son, awakened by his mother's screams, saw the respondent with a knife and fled from the house. As the woman attempted to contact police from the landline in the hallway the respondent grabbed the phone and threw it to the floor where he straddled her and demanded that she fellate him. She struggled and screamed for help. The respondent then proceeded to sexually assault her, repeatedly demanding that she fellate him in the process.

Count 2 involved the respondent forcing several of his fingers into the woman's vagina. Subsequent medical examination revealed a laceration 2.5cm long and 2mm wide on her vulva. Count 3 involved the respondent forcibly inserting several fingers into woman's anus. Subsequent medical examination revealed two fissures on her anus. The conduct the subject of both counts was repeated and continued for an extended period of time during which the victim was struggling in an attempt to resist the attack.

As the co-offender called to the respondent through the bedroom window, the respondent continued to straddle the victim rubbing his exposed penis against her cheek. This was the subject of Count 4. When she continued to resist his demands to fellate him the respondent stood up, tore her nightgown and kicked her several times in the left ribcage. Subsequent medical examination confirmed that one of her ribs had been broken.

The respondent then left the house with the car keys, and the money and jewellery which he took from the woman's bedroom as he left. The woman's car was then driven to various locations in Kempsey and ultimately through a fence surrounding a school and onto a basketball court. The offenders were heard cheering and laughing and saying, "We thrashed the car, let's go burn it now boys" and "Fuck the police". Upon hearing the approach of police vehicles the car was set alight and abandoned. This is the offending the subject of Counts 5 and 6. The car was destroyed and extensive damage was caused to school property.

After fleeing from the house with her mobile phone the woman phoned the police. She was found cowering behind a water tank in her backyard in a state of deep distress. She was transported to hospital in an ambulance where she was medically examined. Swabs were taken for DNA sampling from under her fingernails and the left shoulder of her nightgown. These were later confirmed as revealing a profile consistent with that of the respondent. His fingerprints were also located on the window and inside the woman's home.

In addition to the injuries noted above, the woman also suffered bruising to her right breast, left ribs, knees, shins, upper back, wrists and arms, and abrasions to her upper back and left knee. She was bleeding from the lacerations to her vagina and anus. She informed medical staff that she had recently recovered from anal cancer, involving both surgery and radiation therapy, which had left her with increased sensitivity in her anal region. A victim impact statement tendered on sentence described the severe and enduring psychological and physical sequelae of the assaults.

When the respondent was arrested he was wearing the stolen jewellery. He agreed to be interviewed by police. He admitted being party to the break and enter of the woman's home, stealing her property and destroying her car. He nominated one of the co-offenders as the person who entered the woman's home. He denied sexually assaulting her.

Upon the inclusion of the DNA evidence in the served brief of evidence on 3 August 2012, pleas of guilty were entered to all offences on 9 August 2012.

The respondent's subjective circumstances

As the sentencing judge noted in his sentencing remarks, over the course of his remand the respondent had been assessed by a number of community-based reporters, including officers from the Department of Juvenile Justice, and by specialist clinicians. The assessments were directed to both assisting in his supervision and the styling of suitable treatment programs in juvenile detention and for the purpose of the sentencing hearing.

In considering the respondent's subjective case and the principles to be applied when sentencing young offenders at law as reflected in the authorities to which he referred, his Honour referred to salient aspects of the reports. He also accepted that a young offender's social disadvantage may operate in mitigation of sentence (an approach most recently reviewed by the High Court in Bugmy v R [2013] HCA 37; 249 CLR 571; 229 A Crim R 337) including, in this case, the respondent's youth, his Aboriginal heritage, and his exposure to drug and alcohol abuse and alcohol-related violence from a young age in family and domestic settings. For the purposes of the Crown appeal, both counsel drew extensively from the tendered reports. In order to address counsels' submissions and deal with the complexity of the issues raised by them, it is necessary to refer to that material in more detail than the references to that material in the sentencing reasons.

The respondent's family history and schooling

The respondent is of Aboriginal descent. He has eight siblings, one of whom is deceased. He is the third youngest. His mother and biological father separated after a 13-year relationship which was marred by extreme domestic violence fuelled by alcohol abuse. The respondent was aged 5 when his parents separated. Together with other siblings he remained in the care of his father for a short time before being removed by the Department of Community Services due to abuse and neglect.

After a period of separation from his siblings whilst he was in foster care the respondent was eventually reunited with some of his siblings and placed in the care of his paternal aunt. Subject to supervision by the Department of Community Services, he remained in her care until the age of 12. He had supervised visits with his father and occasional phone contact with his mother. Thereafter, also under Departmental supervision, he and one of his brothers lived with a paternal uncle, arguably as a result of his aunt's mistreatment of him. It was at about this time that one of his sisters was killed. She had been assaulted by her partner and left by the side of the road where she was struck by a car. He had regular contact with his sister prior to her death.

The respondent was remanded for a brief period in a juvenile detention centre when he was 12 years old. Those charges were eventually dismissed. After he was released from detention he lived with another relative for some time, after which he was housed in a children's refuge for approximately six months under the Department's care.

He commenced using cannabis at age 14 while residing with his uncle (his uncle being a user of that drug) and began to drink alcohol culminating, over a short time, to a state of dependence on alcohol. At the time of the offences the respondent claims to have been heavily intoxicated by both alcohol and cannabis.

At age 14, the respondent moved back with his mother who by that time had a de facto partner. His mother was jailed for approximately three months for offences of violence against her de facto partner during the time the respondent was living with her. It appears she has some mental health issues. When his mother was in prison the respondent moved to Sydney where he lived with his father. His use of drugs and alcohol continued. It was during this time that he failed to comply with the supervision by Juvenile Justice which had been ordered to address his drug and alcohol use.

The respondent was residing with his mother and her current partner at the time of the offending. His mother is supportive of him, as are two other members of his family and friends who are not in custody. Two of his brothers are serving periods of imprisonment for armed robbery, reportedly related to their alcoholism. The respondent reported that many of those who support him have a history of engaging in antisocial and/or criminal activities. He reported to Ms Hare that he speaks to someone within his support network by telephone each day.

Unsurprisingly, given the respondent's fractured family life from age 5, his schooling was interrupted. He attended five different primary schools before his expulsion from a school in Western Sydney at the end of Year 6. This was the first of a number of suspensions from various high schools for rule infractions, including verbal abuse, fighting, bullying and theft. He was, however, enrolled in a special school program to address what had been identified as learning difficulties where he completed Years 7 and 8. It would appear that there was a period of 18 months after his mother was sentenced to imprisonment, when he was living with his father in Sydney, when he did not attend school at all.

His Honour noted that the respondent was enrolled in Macleay Vocational College before his remand with adequate attendance. This would appear to be contradicted by Ms Cluff's report where she stated the respondent was suspended from the College for 30 days for fighting and failed to return at the expiration of the suspension. She went on to report, however, that on his remand the respondent has participated in general education and has completed numerous artworks and two trade-based courses. He is also a keen footballer.

The respondent's antecedent record

On 24 February 2010 the respondent was convicted of aggravated break and enter, commit a serious indictable offence, and placed on probation for 6 months.

On 24 November 2010, a 12-month supervision order was imposed for being carried in a conveyance taken without consent. He was called up for breach and ordered to perform 50 hours of community service which, it appears, he did not perform as he was then sentenced to a 2-month control order on 9 May 2012.

On 27 November 2011, a 2-year supervision order for break, enter and steal was also breached. The respondent was called up and sentenced to a 2-month control order for that offending.

It is unclear as to the currency of this supervision order at the time of the commission of the offences for which he was sentenced.

A 12-month bond for assault was imposed on 29 June 2011, for which he was again called up and was placed on a control order for 2 months.

The respondent's intellectual functioning

The sentencing judge noted that the respondent had been assessed as having low literacy and numeracy skills. This appears to be a reference to Ms Hare's report, prepared within ten days of the sentence proceedings, which included a comprehensive assessment of the respondent's cognitive functioning at that time. Ms Hare was unaware as to whether any formal assessment of the respondent's cognitive abilities had been undertaken in the past. She noted that there were no formal tests reported in the documentation she was provided with for the purposes of preparing her report.

Under Ms Hare's supervision, the Weschler Abbreviated Scale of Intelligence test (WASI) was administered to assess the respondent's level of intellectual functioning. His IQ was estimated to fall between 73 and 83. This positioned him at the 6th percentile in his age group, equating to his performing in the borderline to lower average range in terms of his overall intellectual functioning. The test results did not suggest that the respondent suffers from a learning disability although Ms Hare made clear that the tests were not diagnostic of disability.

Ms Hare also administered the Schonell Graded Reading Test which measures verbal fluency in reading English at which the respondent performed commensurate with a child aged 8 years and 5 months. She considered that this was consistent with his achievements on the WASI.

In Ms Hare's opinion the respondent's disrupted schooling through truancy, suspension, expulsion and periods of detention impacted upon the development of his verbal and literacy skills. She was unable to offer any definitive view as to the impact of the respondent's sustained use of cannabis on his cognitive function, finding it difficult to disentangle its impact from the interplay of other socio-cultural factors. She did express the view, however, that the respondent's cannabis use was likely to be superseded by his exposure to the negative influences in his childhood and early adolescence, including abuse and neglect, poor education and his generally delinquent lifestyle.

Risk of reoffending

Both Ms Hare and Ms Cluff administered the Juvenile Sex Offender Assessment Protocol-II (JSOAP-II) which allows for a systematic review of risk factors identified in the literature as associated with sexual and criminal offending. The protocol is specifically designed to be used with male youths in the age range of 12 to 18 who have been convicted of sexual offences. In her report Ms Hare noted that that JSOAP-II had been administered by Ms Cluff, as reported in November 2012, a matter also noted by his Honour and to which he referred in some detail. At that date the respondent registered high scores on a scale designed to identify the risk of reoffending, including denial of responsibility for his offending behaviour, and a lack of genuine empathy and remorse. Ms Hare considered that in order to inform the Court at the time of sentence of the respondent's current risk assessment, the protocol should be reapplied. The authors of the protocol strongly recommend that adolescents be reassessed every six months.

In Ms Hare's view, the static risk factors with which the respondent presented in September 2013 (after 19 months on remand) reflected his generally unstable upbringing, exposure to poor role models, inconsistent implementation of boundaries, poor school achievement and engagement in a range of antisocial and criminal behaviour from a young age. She reported that these factors are considered "vulnerability factors" for juvenile offending, including sexual offending, with the caveat that they do not provide any formula or algorithm capable of predicting the actual likelihood of recidivism. Of the respondent's dynamic risk factors, Ms Hare noted that he continued to present as self-centred in his evaluation of needs and insensitive to the thoughts and feelings of others, features of his behaviour and outlook also identified by Ms Cluff. Ms Hare considered that whilstever the respondent's attitude remained unchanged, he was likely to rely upon the threat of external controls (such as the threat of being caught and losing his freedom) to manage his behaviour rather than developing mechanisms for self-monitoring and self-control.

She noted that there had been some shift in the respondent's attitude to his offending, in particular the sexual violence he inflicted, compared with the results of testing administered by Ms Cluff twelve months earlier. When he was assessed by Ms Cluff (nine months after his remand), he displayed no evidence of remorse or empathy for the woman he assaulted or the circumstances in which he assaulted her. When asked specifically about the physical injuries he inflicted in the course of the assault, Ms Cluff reported that the respondent smiled, smirked and giggled to himself. When the details of the sexual assault were raised with him he became withdrawn, defensive and presented with avoidant behaviour, adjusting his chair so he could face away from Ms Cluff, avoiding eye contact and distracting himself by playing with his shoes or the carpet. His Honour noted in his sentencing remarks that Ms Cluff considered that a further assessment was necessary to ascertain whether this behaviour was attributed to the respondent's immaturity and/or a shame response, or the emergence of a deviant arousal to sexualised violence directly associated to the suffering of a vulnerable victim.

When the respondent was assessed by Ms Hare he was also difficult to engage when his sexual offending was raised. With her encouragement he was able to identify that he had only experienced any sexual thoughts when the woman's nightgown was pushed up as he pushed her to the floor, but she was unable to elicit from him what his specific thoughts and feelings were immediately prior to or during the sexual attack that followed. In her view, his conduct appeared to have been opportunistic and impulsive rather than strategic or premeditated. When asked, the respondent struggled to describe what he thought would be the impact of his conduct other than that the woman he assaulted would be likely to feel "upset" because "she didn't want it to happen". This reinforced Ms Hare's ultimate conclusion that the respondent's reasoning skills remained at an egocentric and immature level; that he has difficulty taking responsibility for his conduct, including controlling impulses; and was unable to empathise with and consider others. She went on to report:

Although [the respondent] is in the upper end of adolescence, maturity cannot be predicted purely based on age, and to this extent, he presents as less psychologically mature than would be expected given his chronological age.

Although this aspect of Ms Hare's report was in the context of her offering an opinion as to the application of s 19 of the Children (Criminal Proceedings) Act (she was of the view that despite being in late adolescence his immaturity rendered him liable to antisocial influences detrimental to his long term rehabilitation if he was to be detained in an adult prison), it was also relevant to the sentencing exercise more generally, in particular the sentences to be imposed for the offending in each of Counts 1 to 4.

It was also Ms Hare's view that the respondent presented an overall moderate to high risk of sexual recidivism and a higher risk of violent and general recidivism. That said, she observed that the research-based literature suggests that although a relatively small proportion of adolescents convicted of sexual offences reoffend, a greater proportion commit non-sexual offences. On that basis she considered there was a reduced risk that the respondent would engage in sexual reoffending in contrast to the risk of his engaging in generalised or other violent reoffending. She went on to say:

[The respondent] committed the current offences within the context of the risk factors [summarised in this judgment at [52]]. He and his co-offenders had been engaging in substance misuse and were seeking excitement, so decided to steal a car to engage in joy riding, and steal possessions for financial gain (in the absence of more prosocial means of achieving excitement and money). During the commission of the offences, [the respondent] appears to have been exposed to the opportunity to gain sexual gratification. This was a high-risk and apparently impulsive decision. [The respondent] described regularly engaging in sexual intercourse with partners with whom he was not involved in a relationship, and whom he did not report finding particularly attractive. Thus, he described a pattern of impersonal sexual gratification. This, in my opinion, increased his vulnerability to sexually assaulting with the victim, despite her advanced age. The victim's relative frailty made her more susceptible to being physically overpowered, and this too may have encouraged [the respondent] to make the reckless decision to take the risk of the victim being able to successfully fight back (which he likely assessed as minimal), in order to achieve the pay-off of sexual gratification when he saw her exposed body. I believe that [the respondent's] hedonistic attitude towards having his needs met, regardless of the expense to others, and the effect of substances on his already limited self-control, were both factors that facilitated the offences in general, as well as the sexual offences.

In August 2013, some weeks before the respondent was interviewed by Ms Hare, he was assessed by Dr Bench and reported a different attitude to his offending. Although he was unable to explain the sexual violence he inflicted, he stated:

I'm ashamed of myself ... because of her age ... that could have been my grandmother or mum or one of the females in my family ... that could have been them ... it could have traumatised her ... it could have left her ... it could have ruined her life.

The respondent told Dr Bench that he entered pleas of guilty in order to "get it over and done with ... she doesn't have to come to court to see my face ... every time she comes to court she breaks down". He went on to say, "I'm disgusted in myself in what I did ... I've got to pay for what I did ... I've got to do time for what I did".

Dr Bench noted that he only obtained Ms Cluff's report after completing his own clinical evaluation and was unable to raise with the respondent what appeared to be a marked change in attitude to his offending. It would also appear Ms Hare did not have Dr Bench's report and thus was unable to inquire why it was the respondent had been forthcoming to Dr Bench but not with her. I venture the view, without the need to decide it, that it may be that the respondent was able to speak more openly with a male clinician about his sexual offending. The marked shift in his insight and empathy is however encouraging, whatever may have motivated it.

In reporting upon the respondent's mental health Dr Bench said:

With regard to his mental health around the time of the index offences, the [respondent] stated he had no recollection whatsoever as to his mood, sleep, appetite, energy or libido around the time of the index offences. Moreover, when specifically questioned as to any thoughts with regard to the index offences or any memories subsequent to the index offences, the young person again denied any knowledge or recollection of his motivations or thinking leading up to or around the time of the index offences. He noted that he and his two co-offenders had simply planned to steal a car for the purposes of joy riding, however stated things got out of control when they were confronted by the victim. Given the lack of recollection by the [respondent], I cannot opine with any degree of medical certainty as to the rationale for his offending behaviour, which from both a lay person's and psychiatric perspective seems to be quite bizarre and out of the ordinary, other than to say his judgment would clearly have been impaired by the degree of intoxication that he would have had at the time of the index offences [this is a reference to the respondent reporting that he had used a combination of alcohol, cannabis and heroin on that day]. Unfortunately without further subjective information provided by the [respondent] I cannot offer any additional comments with regard to his motivations.

He also said:

I would concur with the recommendation of Ms Shelley Cluff that the [respondent] participate in both sex offender and substance abuse treatment. He will need to remain abstinent from all drugs and alcohol. He may benefit from regular random urine drug screens to ensure his on-going abstinence from substances, so long as he is under legal supervision. Successful completion of such treatment will provide the greatest opportunity to decrease the [respondent's] risk of reoffending. The attainment of vocational skills whilst in custody will also increase his employment prospects post-release and thus further decrease his risk of reoffending.

In considering a treatment plan appropriate to the respondent Ms Hare agreed with Ms Cluff that he would benefit from engaging with the sex offender program delivered by Juvenile Justice. She said:

I concur with the previous report writers that [the respondent] would benefit from engaging with the Sex Offender Program delivered by Juvenile Justice. I believe that there are a number of benefits to [the respondent], in terms of his long-term rehabilitation prospects, if he is offered the opportunity to engage in a program specifically developed to meet the needs of adolescent sexual offenders. This includes his need for basic sex education. A level of sex education and knowledge about sex is assumed in programs developed for adults. Whilst [the respondent's] offences may well be similar to those of adult sexual offenders, he is at a different stage developmentally. It is widely recognised that adolescent sexual offenders require different treatment to adult sexual offenders, and there has been a strong move towards more developmentally focused, adolescent types of treatment ... It appears, therefore, that it is inappropriate to place adolescents and adults together in therapy.

Findings for sentencing purposes

The sentencing judge described all the offences as "heinous crimes" committed with brazen callousness and without regard for the psychological harm he inflicted. His Honour regarded the offences in Counts 2, 3 and 4, each involving what he described as the brutal infliction of sexual violence, as being "almost at the top of any scale constructed to such offences" given the woman's age and frailty; the repeated infliction of sexual violence with the intention to humiliate her and cause her pain and fear, in addition to causing her injury; and the additional infliction of injury to her ribs by the respondent repeatedly kicking her when she refused to comply with his demands for fellatio. His Honour was, however, satisfied that the sexual offending was neither planned nor premeditated. (Although he made no express reference to Ms Hare's report, this was consistent with her assessment that the offending was impulsive and opportunistic.)

His Honour considered Count 1 as above the middle of the range and Count 6 in the mid range.

His Honour noted that the respondent used a knife whilst demanding fellatio and that the woman spoke of her fear of being stabbed. He accepted the Crown submission that given the level of anger and violence the respondent deployed whilst wielding the knife, the use of the knife added to the objective seriousness of his offending. The infliction of actual bodily harm and the fact that the offences were committed in her home were also found to be statutory aggravating factors.

His Honour referred to the High Court in Veen v R (No 2) [1988] HCA 14; 164 CLR 465; 33 A Crim R 230 being the seminal authority for the proposition that the maximum penalty is intended for a case in the worst category of offending of its kind and where the features of the offending are of such heinousness that there is nothing to mitigate its seriousness (as distinct from subjective features which might operate to mitigate the penalty to be imposed).

His Honour referred expressly to R v Fernando (1992) 76 A Crim R 58 and Bugmy and accepted that the respondent's deprived social background operated as a mitigating factor on sentence. His Honour found special circumstances on the basis of the respondent's age, his prospects for rehabilitation, and need for him to have access to educational, vocational and therapeutic programs available in a Juvenile Justice correctional facility. The Crown does not challenge the finding of special circumstances.

His Honour also expressly referred to s 6 of the Children (Criminal Proceedings) Act, and the authorities which have considered the relevance of the statutory scheme in that Act to the sentencing exercise despite the fact that an offender is to be sentenced according to law. Section 6 provides:

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

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

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

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

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

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

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

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

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

In this case (b), (c), (f) and (g) had particular application.

His Honour referred to R v Voss [2003] NSWCCA 182 and the following extract at [14]:

A young offender who conducts himself "as an adult" or engages in "grave adult behaviour" will have less weight given to the principles and more weight given to the objective seriousness of the offence.

Voss is consistent with later authority, in particular KT v R [2008] NSWCCA 51; 182 A Crim R 571 and BP v R [2010] NSWCCA 159 at [4]-[6] (to which the sentencing judge referred and which he said he has paid specific regard). In KT at [24]-[26] McClellan CJ at CL summarised the rationale behind s 6 of the Children (Criminal Proceedings) Act and reviewed the authorities relating to sentencing juveniles, as to which his Honour observed:

[24] Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly(1991) 55 A Crim R 128 Lee CJ at CL said (at 135):

"It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes..."

[25]The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted himself or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity (R v Bus, unreported NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10], R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in 'adult behaviour' (Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence (Adamson at [31]-[32]). Where some or all of these factors are present the need for the rehabilitation of the offender may be diminished by the need to protect society.

[26] The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity (R v Hoang [2003] NSWCCA 380 at [45]). A 'child-offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age (R v Bus, R v Voss at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth (Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [27]).

It was common ground on the appeal that in any given case the application of s 6 of the Act will depend on the nature of the offence and the circumstances and conduct constituting the particular offending. It was also accepted by the respondent's counsel that an offender's youth will not automatically lead to a reduction in sentence and that the greater the objective gravity of an offence the less likely it is that retribution and general deterrence will cede to the interests of rehabilitation (see IE v R [2008] NSWCCA 70; 183 A Crim R 150 at [6]; MJ v R [2010] NSWCCA 52 at [37]-[39]; and JT v R [2011] NSWCCA 128 at [34]-[35]). Where the parties were at issue on the appeal was whether the sentences imposed in this case adequately reflected the application of settled statements of principle in the sentencing of young offenders given that the gravity of the respondent's sexual offending approximated a worst case, a finding which was not the subject of challenge.

I have already referred to the careful consideration his Honour gave to the reports of the various clinicians and community reporters tendered on sentence. In addition to the matters which I have elaborated upon above, his Honour also made specific reference to the results of psychological testing which confirmed that whilst the respondent appeared to have resilient mental health, he had a tendency to display symptoms consistent with traits of an oppositional defiant disorder, including negative and defiant behaviour, arguing with adults, the tendency to lose his temper and doing the opposite of what is asked or expected of him. His Honour regarded this as consistent with the respondent's documented history.

His Honour also noted the high scores returned on testing for the risk of reoffending. In that context he went on to note that the reports identified what he described "protective factors" (which I take to mean factors countering against the risk of reoffending), including the birth of a son since the respondent's remand; his attachment to his mother and siblings and his proposal to reside with his mother and her de facto partner upon release. His Honour also made particular mention of the observations of a Juvenile Justice officer who described his involvement with the respondent as follows:

I have worked with [the respondent] for a long time and [he] is a likeable kid, he settled in well and he is a good young person to work with, especially in a custodial environment, because he doesn't have access to drugs like in the community. It's hard for him to control his drugs.

Finally, his Honour acknowledged the unanimous recommendation in each of the tendered reports that the respondent participate in a sex offender program and for his substance abuse issues to be addressed in his treatment plan and that he would benefit from regular random urine drug screens to ensure his ongoing abstinence whilst ever he remains under legal supervision.

Before sentencing on each of the individual counts, His Honour noted the submission of counsel who appeared in the sentencing proceeding that the respondent's psychosocial immaturity and his ongoing issues with decision-making, self-control and empathy render him vulnerable to the risk of exposure to entrenched antisocial attitudes were he to be detained in an adult facility upon attaining 18 years of age. In addition, his Honour noted counsel's submission that the educational, vocational and therapeutic programs particular to the respondent's needs as a young offender, whose immaturity even at the time of sentence was less than his chronological age of 17 years and 8 months, are available in the juvenile detention system and that the community would be best served by his having continued access to them.

After his Honour imposed sentences of imprisonment on each of Counts 2, 3 and 4, he then moved to consider whether the effective non-parole period should be served, in its entirety, in a Juvenile Justice facility. On that issue he not only had the submissions of counsel but the report of Dr Emma Collins, a clinical and forensic psychologist. Dr Collins did not undertake any clinical evaluation of the respondent but, at the request of the respondent's legal representatives, she provided a research report with specific focus on the application of ss 19(4)(b) and (c) of the Children (Criminal Proceedings) Act.

In summary, Dr Collins sought to emphasise that juveniles are typically at different developmental stages throughout adolescence and, for that reason, are potentially subject to a number of factors related generally to their vulnerability. She went on to observe that adolescence is typically a time of significant change where conduct and oppositional defiant disorders, which frequently present in a young offender's clinical evaluation, may transform or even dissipate over time for a number of reasons which may impact in a positive sense on their suitability for juvenile-based treatment programs and their progress through those programs. As she observed, the adult prison system is generally considered to offer few treatment options for juvenile offenders. Whilst there are specialist offending programs within the adult prison system, in particular directed to sexual and violent offending, a young adult who enters into a program directed to address those issues will invariably be placed with adults whose offences may be objectively similar but who will be at a very different stage, both developmentally and in terms of an antisocial trajectory. Dr Collins went on to observe that it is widely recognised in the literature that adolescent sexual offenders require different treatment to adult sexual offenders. Similarly, preventative treatment programs, indeed even basic psychological services, are not widely available in the adult system.

Finally, she observed that transitioning a juvenile offender into adult jail also presents particular concerns with regards to the prospects of the young offender being unable to withstand the particular risks and stresses of the adult prison system at a psychologically fragile point in their development, where fear and potential for a decompensating state of mental health may present. The risk of victimisation and a concern that exposure to the adult prison system may render a young offender susceptible to manipulation or grooming into antisocial behaviour could actually retard rehabilitation, rendering the young offender at a greater risk of recidivism.

Before ordering that the non-parole period be served in a Juvenile Justice facility his Honour noted the progress the respondent had made to date in availing himself of programs available within the Juvenile Justice system (and not available in the adult prison system) and the respondent's vulnerability to re-exposure to drug use (which may be readily accessed in an adult jail).

Ground 1: Did his Honour err by failing to reflect the objective seriousness of Counts 2, 3 and 4 in the sentences imposed for those offences, leading to the imposition of sentences that were manifestly inadequate?

In the Crown's submission undiscounted sentences of 8 years for each of Counts 2, 3 and 4 against a maximum of 20 years are in themselves indicative of error given the unchallenged finding that the sexual offending was close to a worst case category. The Crown submitted that even when full weight is given to the mitigating aspects in the respondent's subjective case, the individual sentences and the total effective sentence of 8 years and 6 months with an effective non-parole period of 5 years and 6 months are erroneously lenient, and demonstrably so when coupled with the respondent's criminal history and his consistently poor response to community-based supervision.

The unchallenged evidence that at the time of sentence (18 months after his remand) the respondent was assessed to be at a moderate to high risk of reoffending, was also said by the Crown to be inadequately reflected in the sentences imposed. (This was also the subject of the second ground of appeal.)

The Crown accepted that the respondent's youth operated in mitigation of sentence, as did his dysfunctional upbringing in an environment where he was exposed to drugs and alcohol from an early age. The Crown submitted however that the sentences imposed lead inevitably to the conclusion that these considerations have overwhelmed the objective gravity of the offending in the sentencing exercise which, in this case, dictated that general deterrence, retribution and the protection of the community take precedence over the respondent's youth and the need for his rehabilitation, and that a manifestly inadequate sentence has resulted, in the sense that it can be properly described as being "unreasonable and plainly unjust".

The Crown accepted that the primary purpose of a Crown sentence appeal is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (see Green v R; Quinn v R [2011] HCA 49; 244 CLR 462; 214 A Crim R 152) which the Crown submitted must include principles encompassing what is necessary to avoid manifest inadequacy in sentencing standards where the offending has been found to be in a worst case category. That submission was not further developed. The Court was not taken to the authorities which deal with the approach to sentencing for offending classified as being in, or approximating, a worst case. The Crown did, however, refer to Markarian v R [2005] HCA 25; 228 CLR 357 at [30]-[31] in support of the submission that a starting point of 8 years suggests his Honour failed to use the maximum sentence as a "yardstick", or that he ignored it altogether.

It was not otherwise submitted by the Crown that this case called for any review of the authorities in this Court that have considered the significance of an offender's youth, or the weight that it is open to afford a young offender's need for, or prospects of, rehabilitation even where the offending is of the order of gravity that is reflected in this case.

Although the Crown submitted that it was open to infer that his Honour tailored the sentencing order to ensure that the respondent would serve the non-parole period in a juvenile correctional facility (with the non-parole period expiring two months before the respondent attains the age of 21 years and 6 months, at which time he would have had to transfer to an adult jail in accordance with s 19(2) of the Children (Criminal Proceedings) Act), it was not submitted that the Crown appeal was brought to allow this Court to emphasise that to tailor the sentence in this way is contrary to established principle (see R v Zamagias [2002] NSWCCA 17; JM v R [2012] NSWCCA 83; 223 A Crim R 55 at [22] per Whealy JA; TG v R [2010] NSWCCA 28 at [24] - [25] per Howie J). It did however appear from the Crown's filed submissions that the Crown was contending his Honour had taken an erroneous approach to sentence in breach of established principle and that this was an additional basis for upholding the Crown appeal. For that reason, the Court invited the Crown to amend the notice of appeal to include a ground of appeal identifying that error and to file supplementary submissions to enable the Court and the respondent's counsel to address whether specific error of that kind was established.

Were I satisfied that it was either obvious from the sentencing remarks or capable of being inferred from the sentencing order that his Honour did structure the sentences to ensure that no part of the effective non-parole period would be served in an adult jail, it would have been necessary to consider whether there was, as the respondent's counsel submitted, a conflict in the authorities as to whether that approach is permissible or, more precisely, the extent to which the principle that a sentence should be imposed before consideration is given to how the sentence should be served needs to be qualified where a young offender is being sentenced, and the application of s 19 of the Children (Criminal Proceedings) Act invoked (see TG and JM, in particular the dissenting judgment of Simpson J at [27]). On my analysis of his Honour's sentencing remarks, in particular that he moved to consider s 19 of the Children (Criminal Proceedings) Act after fixing sentences on Counts 2, 3 and 4, the specific error contended for by the Crown is not made out and, accordingly, the question whether there is or might be a conflict in the authorities does not arise.

The Crown also directed submissions to comparative cases in what were described as being in the worst case category as serving to demonstrate that the sentences imposed on the respondent were erroneously lenient.

CM v R [2008] NSWCCA 195; 187 A Crim R 197 was an appeal in which it was argued that the sentences were manifestly excessive. After applying a 25 per cent discount for the plea of guilty to one offence of aggravated sexual intercourse without consent committed when the applicant was 15 years and 5 months and in circumstances where the offence was assessed at "close to worst case category", a sentence of 10 years and 6 months with a non-parole period of 6 years and 6 months was imposed. The appellant was of Aboriginal descent and came from a violent and disrupted background with a lengthy criminal history. He was drug and alcohol addicted and intoxicated when he offended. A point of some significant difference between the offending by CM and this respondent is that CM engaged in prolonged sexual violence in company with two adult males to whom he offered the female complainant after he had sexually abused her, in the course of which he inflicted injuries to her head by striking her number of times with a length of wood. In agreeing with Blanch J that the appeal should be dismissed, not unsurprisingly Grove J noted that "the unchallengeable finding that the offence lay near worst case category demands rejection of the submission that the sentence was manifestly excessive". Another distinguishing feature of that case was that in the view of the Court, the sentencing judge did not err in categorising the offence as close to a worst case and when regard is had to the standard non-parole period of 10 years as giving some guidance in fixing appropriate sentence, it was not held to be a manifestly excessive sentence. It was common ground on the sentence of the respondent that the standard non-parole period had no application (see BP v R and s 54D(3) of the Crimes (Sentencing Procedure) Act. I note that s 54D(3) was not in operation at the time the Court determined the severity appeal in CM. Section 54D(3) commenced operation on 1 January 2009: see Schedule 2, 2.4[4] of the Crimes Amendment (Sexual Offences) Act 2008 (NSW)). I also note that the psychiatric evidence in CM supported a diagnosis for sexual sadism with the applicant maintaining a reluctance to accept responsibility for his offending. Although the respondent in this case has shown reluctance in the past to confront the reality of his offending, his attitude as revealed to Dr Bench shows progressive insight and empathy and an acceptance of the reality of his being punished for his offending.

R v AEM (Snr), KEM, MM [2002] NSWCCA 58 was a Crown appeal against the inadequacy of sentences imposed on two juvenile offenders, KEM (aged 16 years and 10 months) and MM (aged 16 years and 3 months), each having pleaded guilty to two counts of aggravated sexual intercourse without consent. The Court (Beazley P, Wood CJ at CL and Sully J) accepted the sentencing judge's characterisation of the offences as very close to worst category, and that the sentence of imprisonment for 6 years and the longest non-parole period of 4 years "wholly failed to address the objective seriousness of the offences and fell far short of what was necessary given her Honour's apparent acceptance that these cases were close to the worst class of case". MM was re-sentenced to a total head sentence of 13 years with an overall non-parole period of 10 years, and KEM to an overall sentence of 14 years with an overall non-parole period of 10 years. Again, a significant point of distinction between the respondent's offending and the offending of the two respondents to the Crown appeal lay in the degree of premeditation and planning involved where the victims were kept separated from each other over a lengthy period of time under forcible detention by the respondent in company with an adult male, during which the victims were subjected to physical violence and sexual assaults of a degrading kind, accompanied by death threats.

R v Brooks [2006] NSWCCA 169 involved an 18 year old offender who broke into the home of the 82 year old victim and violently sexually assaulted her. He pleaded guilty to one count of aggravated break, enter and commit serious indictable offence, two counts of aggravated sexual intercourse without consent, one count of attempted aggravated sexual intercourse without consent and one count of aggravated robbery. Other offences were taken into account on a Form 1. The offender had a lengthy criminal history, including offences of violence, and came from a dysfunctional family. He was addicted to alcohol and other drugs and was intoxicated at the time of the offences. The Court held that the offences were less than the worst case category and re-sentenced the appellant to an overall sentence of imprisonment for 14 years with a non-parole period of 10 years and 6 months. That case is also to be distinguished from this case by reason of the respondent's age and his criminal record which included no offences of violence.

The Crown further submitted that were the Court persuaded that the Crown appeal should succeed on either of the two filed grounds, or the third ground filed with leave, there was nothing that would justify the exercise of the residual discretion in the respondent's favour and he should be re-sentenced.

The respondent's submission

The respondent submitted that the necessary breadth of discretion in the complex sentencing exercise which confronted the sentencing judge in this case has not been shown to have miscarried. Further, counsel submitted that the Crown has not made out any principled basis for a finding of manifest error in the sentences imposed on Counts 2, 3, and 4 given his Honour's comprehensive analysis of all the evidence and the correct application of principle to the facts.

In counsel's submission the gravity of the offending (which she openly conceded was fairly assessed as at or towards the top of the scale of offending of its kind) was ameliorated by the evidence which highlighted the respondent's immaturity and his psychosocial dysfunction, and which provided some context for his violent sexual offending not otherwise reflected in his criminal antecedents. It was submitted that the careful consideration his Honour gave to the impact and interplay of both of these factors in the sentencing exercise, and in particular his Honour's reference to KT at [23] (as to which see [70] above), justified a finding (even if not expressly made) that they operated to reduce the respondent's criminal culpability such that the weight that might otherwise be attributed to retribution and punishment in the appointment of sentence was diminished and his rehabilitation emphasised. Counsel submitted that his Honour was acutely aware of the maximum penalty of 20 years and that there is nothing in his sentencing remarks to suggest he overlooked it or understated the gravity of the offending against which the maximum penalty should be used as a "yardstick" in a principled way (see Markarian).

In counsel's submission, the necessary synthesising of complex and competing considerations in the appointment of sentences for each of Counts 2, 3 and 4 reflected the exercise of a sound sentencing discretion and that the Crown appeal should be dismissed.

Consideration of Ground 1

It hardly needs restatement that the question raised by the first ground of appeal is not whether this Court would have imposed different sentences on any of Counts 2, 3 and 4 (or a different effective sentence) or even whether this Court is of the view that the sentences imposed are lenient. The question is whether the sentences are such as to compel a finding that the sentencing judge has failed to properly exercise his sentencing discretion and that an unjust and plainly unreasonable sentence has resulted (see Dinsdale v R [2000] HCA 54; 202 CLR 321).

There are occasions where on a Crown appeal the Crown is able to illustrate the inadequacy in a particular sentence by reference to a range of sentences in comparable cases. While the cases to which the Crown referred in written submissions might be suggestive of an error of the kind the Crown submitted occurred in this case (namely a failure to afford weight to the finding of close to worst case offending and an overweighting of the respondent's subjective circumstances), after a close consideration of the cases relied upon by the Crown, and in finding in each of them features of aggravation not present in this case, I do not find the decisions of any particular assistance in setting a range against which the respondent's sentence might be meaningfully compared, or that the sentences imposed in this case are so markedly different from the cases the Crown referred to as to justify a finding that they are manifestly inadequate (see Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520; 204 A Crim R 434).

The outcome of this appeal must be decided strictly in conformity with the principles that constrain both the bringing of the Crown appeal and the ultimate determination as to whether that appeal should be allowed. In R v Ly [2014] NSWCCA 78 these principles were restated:

[80] The issue raised in this appeal poses the question whether the result embodied in his Honour's sentencing order was unreasonable or plainly unjust. Error of this kind is usually described in a Crown appeal as "manifest inadequacy": Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ. As discussed in Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [61] - [62], the power to set aside sentences judged to be obviously erroneous on a Crown appeal against sentence ought normally only to be exercised where error has been very clearly demonstrated.

[81] A principle of particular importance in a Crown appeal against sentence is that a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: Lowndes v R [1999] HCA 29; 195 CLR 665 at [15]. As there noted:

"The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice": per Gleeson CJ, Gaudron, McHugh, Kirby, Hayne and Callinan JJ.

[82] Further, the High Court has observed that:

"... appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases": Hili v The Queen, supra, at [59].

[83] In Bugmy at [24] it was observed:

"However, within a range of sentences for this offence and this offender, the weight to be given to the evidence and the various, conflicting, purposes of sentencing was a matter for Judge Lerve. The authority of the Court of Criminal Appeal to substitute a sentence for that imposed by Judge Lerve was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant's subjective case. The power could only be engaged if the Court was satisfied that Judge Lerve's discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards. In that event, the Court was required to consider whether the Director's appeal should nonetheless be dismissed in the exercise of the residual discretion."

The authorities to which his Honour referred in his sentencing reasons exemplify the informed and principled approach to sentence in cases where, as here, an offender's youth and/or immaturity is identified as a significant factor in the offending, allowing, in an appropriate case, for the related finding that the criminality inherent in the particular offending will be less than if an adult had committed the same offence. While the weight of that factor does not vary depending on the seriousness of the offence, it may diminish in weight the closer the offender approaches the age of maturity. That said, as Hodgson J observed in BP at [5] (observations with which Rothman J agreed) it does not necessarily follow that the age of maturity equates with a chronological age of legal majority since understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood and may, in some individuals, not be fully developed until a person is 21 or even older.

Despite the objective gravity of the offending in this case, his Honour was entitled to afford the respondent's youth and immaturity considerable weight in the assessment of a just and proportionate sentence. In addition, his Honour made a further critical finding, namely that the respondent's sexual offending was impulsive. That finding is not under challenge on the appeal. In my view, that finding, when coupled with the evidence which established that under intensive psychological assessment the respondent was shown to have a compromised capacity for reasoned judgment and empathy, an undeveloped capacity to control his impulsive behaviour and a reduced capacity for mature decision-making (no doubt aggravated by his state of intoxication at the time of the offending) was also entitled to significant weight in this sentencing exercise.

At age 17 years and 6 months the respondent was sentenced to a substantial period of imprisonment for offences committed at age 15 years and 10 months. What cannot be overlooked is that by the time he will be eligible to be considered for conditional release to parole he will have served close to a quarter of his life in custody and the better part of his adolescence deprived of his liberty.

In summary, I am not persuaded that the sentencing judge failed to take into account the gravity of the respondent's offending or that he paid little or no heed to the maximum penalty. Further, it has not been demonstrated that he overweighted the respondent's subjective circumstances or that he allowed them to obscure the need for the sentence to reflect both specific and general deterrence. Rather, this case is an example of the complexity of a sentencing exercise where the purposes of sentence in s 3A of the Crimes (Sentencing Procedure) Act, which are by definition under tension, in fact pulled in opposite directions. I am not persuaded that his Honour's sentencing discretion has been shown to have miscarried.

I would reject the first ground of appeal.

Ground 2: Did his Honour err by failing to consider the protection of the community and general deterrence leading to the imposition of a sentence that is manifestly inadequate?

Although his Honour adverted to the respondent as presenting with a high risk of violent reoffending, and a moderate to high risk of sexual reoffending on successive psychometric assessments over a period of 11 months, the Crown submitted that finding needed to be meaningfully accounted for in the sentences imposed in recognition of the right of the community to be protected from the risk of the respondent committing offences of violence, including sexual violence, and that the sentences imposed fail to reflect that fact.

The Crown further submitted that his Honour's failure to make specific reference to the need for general deterrence to be reflected in the sentences imposed supports the conclusion that he also failed to properly take that into account in the imposition of the individual sentences.

A fair reading of his Honour's sentencing reasons leaves me in no doubt that he was acutely conscious of the need for the sentence to meet the protective purpose of sentence whilst at the same time allowing for the rehabilitative purposes to carry particular weight in the sentencing of the respondent as a young offender. It is not infrequently the case that the same factors which reduce the culpability of the offender and/or reduce the need for general deterrence to also point to a risk of future dangerousness. This has particular currency when an offender suffers from mental illness (see Muldrock v The Queen [2011] HCA 39; 244 CLR 120; 212 A Crim R 254). The risk factors identified in the psychological and psychiatric assessments of the respondent in this case which, in part at least, are related to his upbringing and the violence and drug and alcohol abuse to which he was exposed as a young child, coupled with inconsistency of parental care and supervision in his late childhood and early adolescence, needed to be assessed with a measure of caution (as acknowledged by Ms Hare) so that his present risk of reoffending is not projected over the balance of the non-parole period into a finding that he will in fact reoffend on his release.

In the respondent's submission, the need for the sentence to accommodate both general and specific deterrence and the protection of the community, and the weight to be afforded them in the sentencing exercise, was also quintessentially a matter for the sentencing judge. Counsel submitted that, as with Ground 1, the Crown has failed to demonstrate error in his Honour's approach or in the sentences imposed.

I am unable to discern in the sentences imposed, the structure of the sentencing order, or in his Honour's sentencing reasons, error of the kind contended for by the Crown under the second ground of appeal. The fact that his Honour made no specific reference to each of the purposes of sentence principles in s 3A of the Crimes (Sentencing Procedure) Act does not support a finding that he failed to take them into account, or that the protective and rehabilitative objectives in sentencing the respondent as a young offender (in this case of competing weight) were not properly considered.

Ground 3: Did his Honour err in structuring the non-parole period so as to ensure that the respondent would be eligible to serve his total non-parole period in a Juvenile Justice facility?

I have already rejected the Crown's primary submission that an error in principle should be inferred from the fact that the non-parole period expires two months before the respondent attains the age at which he must be transferred to an adult jail. I should also point out that not only did the Crown's written submissions on sentence set out the operative provisions of s 19 of the Children (Criminal Proceedings) Act, but specific reference was also made to TG with [24]-25] of the judgment of Howie J extracted in full.

TG brought an application for leave to appeal against sentences for four offences of dangerous driving causing death. Various grounds of appeal were pleaded asserting patent error and manifest excess. In relation to the manifest excess ground, TG sought a reduction of the non-parole period by 20 months, which would have resulted in a sentence the effect of which would have permitted him to be released to parole prior to his 21st birthday, thus avoiding any part of the sentence being served in an adult prison.

Howie J addressed that submission in the following way:

[24] Certainly no reduction in the sentence could be justified for the reasons put forward by Mr. Harrison for the applicant. The suggestion that a sentence should, or could, be constructed with a view to bringing about a certain type of custodial arrangement should be firmly rejected. It is rarely, if ever, appropriate for a sentencing court to take into account administrative arrangements or executive decisions in determining the sentence to be imposed upon an offender. More importantly it would be quite wrong for a judge to seek to avoid a statutory prescription upon where a juvenile offender is to serve a sentence by reducing the sentence to avoid the administrative decision that a juvenile upon reaching the age of 21 is to be transferred to an adult prison.

[25] This court has stated consistently that the proper approach is to determine the appropriate sentence and then consider what, if any, options exist as to how that sentence is to be served. That approach was clearly stated in R v Zamagias [2002] NSWCCA 17. That decision has been quoted and applied in a large number of decisions of this court that need not be cited. In a case involving a juvenile offender being sentenced at law, the same principle applies. The judge is to determine the sentence and then consider whether it is necessary and appropriate to make an order under s 19 of the Children (Criminal Proceedings) Act. It would be unprincipled and an error of discretion for the court to reduce a sentence solely in an attempt to avoid a juvenile offender spending a period of custody in an adult facility.

[26] In any event, the court's intention in this regard can legitimately be frustrated by a decision made by the Director General to transfer a juvenile offender pursuant to s 28 of the Children (Detention Centres) Act to a "correctional centre". Section 19(7) specifically states that the section does not limit the operation of s 28.

On the appeal it was submitted by the Crown that while the sentencing reasons suggest, ex facie, that his Honour sentenced consistently with the principled approach in TG, the sentences imposed strongly suggest that his Honour in fact tailored them, and in particular the effective non-parole period, to ensure that the respondent was eligible to serve his entire sentence in a juvenile correctional facility contrary to TG (see also JM at [22] per Whealy JA). The Crown did not submit that a juvenile offender's conditions of custody are irrelevant to the exercise of the sentencing discretion (they are properly taken into account in the determination of special circumstances as provided for by s 19(4) of the Children (Criminal Proceedings) Act and under s 44 of the Crimes (Sentencing Procedure Act). However, they are not to be used, either directly or indirectly, to reduce the sentence so as to seek to avoid the statutory prescription that requires a juvenile offender to be transferred to an adult facility once he has attained the age of 21.

For the reasons already given, I am not satisfied that it is open to find that his Honour sentenced in the way contended for by the Crown and, for that reason, it is unnecessary to consider the submissions directed to the authorities and the suggestion of a conflict in them, in particular, the dissenting judgment of Simpson J in JM.

For the reasons expounded above, the orders I propose are as follows:

1. Leave to appeal granted.

2. Appeal dismissed.

McCALLUM J: I agree with Fullerton J.

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Decision last updated: 23 October 2014

Medium Neutral Citation:	R v YS [2014] NSWCCA 226
Hearing dates:	18/07/2014
Decision date:	23 October 2014
Before:	Gleeson JA at [1]; Fullerton J at [2]; McCallum J at [114]
Decision:	1. Leave to appeal granted. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW - appeal against inadequacy of sentence - serious children's indictable offence - objective seriousness of offending - protection of community and general deterrence - whether the sentencing judge erred in structuring the non-parole period to ensure total non-parole period would be served in a Juvenile Justice facility
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Children (Detention Centres) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes Amendment (Sexual Offences) Act 2008 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW)
Cases Cited:	BP v R [2010] NSWCCA 159; 201 A Crim R 379 Bugmy v R [2013] HCA 37; 249 CLR 571; 229 A Crim R 337 CM v R [2008] NSWCCA 195; 187 A Crim R 197 Dinsdale v R [2000] HCA 54; 202 CLR 321 Green v R; Quinn v R [2011] HCA 49; 244 CLR 462; 214 A Crim R 152 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520; 204 A Crim R 434 IE v R [2008] NSWCCA 70; 183 A Crim R 150 JM v R [2012] NSWCCA 83; 223 A Crim R 55 JT v R [2011] NSWCCA 128 KT v R [2008] NSWCCA 51; 182 A Crim R 571 MJ v R [2010] NSWCCA 52 Markarian v R [2005] HCA 25; 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 244 CLR 120; 212 A Crim R 254 R v AEM (Snr), KEM, MM [2002] NSWCCA 58 R v Brooks [2006] NSWCCA 169 R v Fernando (1992) 76 A Crim R 58 R v Ly [2014] NSWCCA 78 R v Voss [2003] NSWCCA 182 TG v R [2010] NSWCCA 28 Veen v R (No 2) [1988] HCA 14; 164 CLR 465; 33 A Crim R 230
Category:	Principal judgment
Parties:	The Crown (Applicant) YS (Respondent)
Representation:	Counsel: S Dowling SC (Crown) B Rigg (Respondent) Solicitors: Solicitor for Public Prosecutions (Crown) Aboriginal Legal Service (Respondent)
File Number(s):	2012/66487
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2013-12-19 00:00:00 Before: McLoughlin SC DCJ File Number(s): 2012/66487