Sarhene v R

[2022] NSWCCA 79

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Sarhene v R [2022] NSWCCA 79

Hearing dates:

6 April 2022, 7 April (written submissions)

Date of orders:

13 April 2022

Decision date:

13 April 2022

Before:

Leeming JA at [1];
Hamill J at [10];
Ierace J at [53]

Decision:

(1)   Grant leave to appeal against sentence.

(2)   Allow the appeal.

(3)   Quash the aggregate sentence imposed in the District Court on 29 January 2020 and in lieu thereof:

(a) For the offence of affray, the applicant is subject to a community corrections order (CCO) pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 12 months commencing 13 April 2022 on the following conditions:

(i)   The applicant must not commit an offence.

(ii)   He must appear before the court if called upon to do so at any time during the term of the CCO.

(iii)   He must accept the supervision of a community corrections officer for the period of the CCO or for such shorter period as considered necessary by the officer.

(iv)   The applicant must report to the corrections officer who has been supervising him on the existing ICO within seven days.

(v)   He must not associate with Andrew Alauni, Gabriel King, Junior Tetteh or Frank Bosco.

(b)   For the offence of assault occasioning actual bodily harm in company, the applicant is sentenced to imprisonment for a period of one month commencing 13 April 2022, such sentence to be served by way of an intensive corrections order. The ICO is subject to the following conditions:

(i)   The applicant must not commit any offence.

(ii)   The applicant must submit to supervision by a community corrections officer.

Catchwords:

CRIMINAL LAW – sentencing – offences of violence – affray – assault occasioning actual bodily harm in company – gangs of youths – general deterrence – relevance of youth and immaturity – well settled principles – whether sentencing judge failed to take into account – where Judge aware of age of offender – “section 5 threshold” – where applicant’s role in affray at low level of objective seriousness -  sentence of imprisonment not the only appropriate sentence – Intensive Correction Order – no power to back date – time served taken into account – applicant re-sentenced

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 8, 10A, 66, 71, 73, 73A, 86, 88, 89

Cases Cited:

Blanch v R [2019] NSWCCA 304

BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379

Cunningham v Regina [2017] NSWCCA 222

CW v R [2022] NSWCCA 50

HJ v R [2014] NSWCCA 21

House v The King (1936) 55 CLR 499; [1936] HCA 40

Howard v R [2019] NSWCCA 109

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571

Mandranis v R [2021] NSWCCA 97; (2021) 298 A Crim R 260

R v Dalton [2004] NSWSC 446

R v Edelbi (2021) 105 NSWLR 133; [2021] NSWCCA 122

R v Hearne [2001] NSWCCA 37; 124 A Crim R 451

R v Speechley [2012] NSWCCA 130; (2012) A Crim R 175

Rotner v R [2011] NSWCCA 207

Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353

Taitoko v R [2020] NSWCCA 43

TM v R [2008] NSWCCA 158

Vaiusu v R [2017] NSWCCA 71

Valenti v R [2016] NSWCCA 17

Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Yildiz v R [2020] NSWCCA 69

Category:

Principal judgment

Parties:

Benjamin Sarhene (Appellant)
Regina (Respondent)

Representation:

Counsel:
A Evers (Appellant)
A Morris (Respondent)

Solicitors:
Alpha Law Practice (Appellant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2019/271512

Publication restriction:

Nil.

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Crime

Date of Decision:

04 December 2020

Before:

Harris DCJ

File Number(s):

2019/271512

Judgment

1. LEEMING JA: I have had the advantage of reading in draft the judgment of Hamill J. I agree with his Honour that ground 2 is made out. I acknowledge that the sentencing judge had the advantage of seeing Mr Sarhene give evidence and be cross-examined, that her Honour formed a strongly adverse view about some of his evidence, and was much better placed than this Court, confined as it is to reviewing the transcript, to do so. Even so, I agree with Hamill J that it was not open to her Honour, in respect of the charge of affray, to be satisfied that no penalty other than imprisonment was appropriate, given his youth, background and the limited role he played in the affray (committing no acts of violence and leaving when asked). Although there was no error concluding that a sentence of imprisonment was required in relation to the second charge of assault occasioning actual bodily harm in company. To be fair, both the Crown and the defence treated the application of s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) as applying to both charges indiscriminately.

2. The issue has been framed in the preceding paragraph as being whether it was “open” to reach the conclusion that no penalty other than imprisonment was appropriate. That accords with what was said in Valenti v R [2016] NSWCCA 17 at [36]. But another way of putting this is whether the finding that no penalty other than imprisonment was appropriate disclosed error; cf Cunningham v Regina [2017] NSWCCA 222 at [27]. The issue arising under s 5 was binary: either the sentencing judge was satisfied that no penalty other than imprisonment was appropriate or she was not. The state of satisfaction is an evaluative one based upon a range of considerations, in respect of many of which her Honour enjoyed an advantage. However, it is not a discretion as such and thus the language of “open” may distract.

3. The first proposed ground of appeal is that the sentencing judge failed to consider the applicant’s youth and immaturity in determining the sentence to be imposed. I do not think this ground is made out. First, the ex tempore remarks contain numerous references to his youth and immaturity, including “[t]he offender is now 19 years of age and is the youngest of the offenders that have come before me. He was aged 18 when he committed the offences”. Secondly, they do so in ways which make it plain that her Honour was truly conscious of that fact at the very moment she imposed an aggregate sentence. In particular, I have in mind this passage:

“Frankly, the offender’s explanations for his conduct beggar belief, including some of the answers he gave in cross-examination. In particular, the fact that he was wearing the jumper because he was cold and did not realise it had Greater West insignia on it. To that extent, they demonstrate a lack of insight. They are also likely to [be] a consequence of the immaturity of a 19-year-old.”

4. Thirdly, the hearing was adjourned because of a difficulty which had arisen on the previous occasion, on 16 October 2020, because his counsel had advised there was some uncertainty about his date of birth (ultimately a birth certificate was tendered), and counsel had said:

“… these are my instructions, that he’s not born on 12 June 1999 but that he might be born on 12 June 2000 or 12 June 2001. I don’t think it’s a Children’s Court matter but I need to sort that out, but it’s important also because … we will say to you that he ought be afforded some leniency because of his young age, and if he’s 21 now and 20 at the time of the offence, that’s a less probative argument than if he was only 18 at the time of the offences.”

5. Fourthly, the applicant was present in court, and her Honour had seen him cross-examined minutes before imposing sentence. His youth was obvious, and it is clear that her Honour regarded certain implausible aspects of his evidence as disclosing immaturity.

6. The applicant’s submissions, to their credit, grappled with the matters summarised above. It was put that “[t]here is little doubt therefore that Harris DCJ was aware of the applicant’s age; but her Honour failed to consider the relevance of that factor in passing sentence other than on the four occasions referred to above.” The submissions then maintained that while “her Honour was required to give weight to general deterrence, the weight given to that factor ought to have reflected consideration given to whether the youth and immaturity of the applicant impacted on his moral culpability, his participation in the offence, [and] the need for the court to denounce the conduct, all [of] which impact on the weight given to general deterrence”. A further complaint was made as to “whether the weight given to rehabilitation should outweigh or counterbalance the role of general deterrence”. The ultimate submission was this:

“As has been noted on many occasions, the weight given to any particular factor is generally a matter that falls within a sentencing judge’s discretion. However, that presumption falls away where in the exercise of discretion the sentencing judge fails to consider a relevant matter. Here, the sentencing judge failed to consider the applicant’s youth when determining the appropriate sentence. It follows that the sentence passed was in error …”

7. The submission was attractively put, but I cannot accept it. This Court is reviewing the exercise of discretion. It is necessary to identify error in accordance with House v The King (1936) 55 CLR 499; [1936] HCA 40. There will be error if regard is not had to a relevant consideration. But there will generally not be error if insufficient weight is given to that consideration (see Vaiusu v R [2017] NSWCCA 71 at [29] and the cases there cited). Ultimately, I regard the submissions advanced on this ground as a complaint about the insufficiency of the weight to be given to youth.

8. Some of the submissions explicitly make such a complaint of insufficient weight. The ultimate submission reproduced above acknowledges the unavailability of a ground based on insufficient weight being given to youth and immaturity, but then asserts that youth and immaturity were not considered at all. I am unpersuaded that that is the case. Nor do I agree that there is some question of a “presumption falling away”. Instead, there are quite clear limits upon the grounds which are capable of engaging this Court’s jurisdiction to review the sentencing discretion.

9. For those reasons, while I would grant leave to appeal in relation to both grounds, I would dismiss ground 1 but allow the appeal on the basis of ground 2. It is necessary to resentence. I agree with the sentence proposed by Hamill J.

10. HAMILL J: Benjamin Sarhene seeks leave to appeal against an aggregate sentence imposed by Judge Harris in the District Court at Parramatta on 29 January 2021. The sentence related to two offences committed two weeks apart on 3 August 2019 (affray) and 17 August 2019 (assault occasioning actual bodily harm in company). The applicant was 18 years old at the time of the offences and, even though the offences were committed in the context of a “turf war” between rival “gangs”, [1] he had not been in trouble before. He pleaded guilty in the Local Court and Judge Harris was satisfied he was “genuinely remorseful” and enjoyed “very good” prospects of rehabilitation. [2] Despite those findings, her Honour concluded, in relation to both offences, that no sentence other than imprisonment was appropriate. She sentenced the applicant to imprisonment for two years and ten months. The individual sentences were 14 months for the affray and 2 years 4 months for the aggravated assault. After a report was prepared by corrective services, her Honour ordered that the sentence be served by way of an intensive correction order (“ICO”). [3]

    1. Remarks on Sentence, 4 December 2020, p 2 (‘ROS 4 December 2020’).

    2. ROS 4 December 2020, pp 11-12.

    3. Remarks on Sentence, 29 January 2021, p 2 (‘ROS 29 January 2021’).

11. The ICO was subject to a number of conditions including home detention for six months, 250 hours of community service, supervision by community corrections, engagement with psychological counselling, and non-association with a number of co-offenders.

12. The applicant raised two grounds of appeal. The first contended that the sentencing Judge failed to take into account the applicant’s youth and immaturity in determining the sentence imposed. The second ground, added on the day the appeal was heard, argued that her Honour erred “in finding that there was no appropriate alternative to imprisonment when sentencing the applicant for each of the charges.”

13. I am satisfied that the first ground of appeal is established, and the second should be upheld in respect of the affray charge. I would grant leave, allow the appeal and re-sentence the applicant by imposing a community corrections order in relation to the affray charge and a shorter sentence of imprisonment, to be served by way of an ICO, in respect of the aggravated assault. These are my reasons for those conclusions.

The facts relevant to sentence

14. Mr Sarhene was associated with members of a group of youths based in Mount Druitt known as the “Greater West gang” or “14 or 27 District”. According to the sentencing judgment the group is made up predominantly of young men and youths of “Islander or African descent” and have received local prominence and media attention for their music. The group was involved in a “turf war feud” against an Inner West gang, which is based in Guildford, known as “G40”. Both offences to which the applicant pleaded guilty arose out of that feud.

15. Based on an agreed statement of facts, the sentencing Judge described the facts of the affray offence as follows:

“On Saturday, 3 August 2019 Emily Brinsmead hosted her 18th birthday party at her family home in Northmead. The party was invitation only. Members of the offender’s group contacted people at the party and were informed that there were members of the Inner West at the event. This offender contacted his friend, Joseph Barnor, a guest at the party, and informed him he was coming to the party.

At 10.20pm the offender’s companions arrived at Northmead park directly opposite the residence. This group included the offender and a number of other males. Mr Barnor had been inside the home as a guest of the party but left with a female party guest. He was with that female in the park when the offender’s group arrived.

The offender said to Mr Barnor that we are here for ‘Ash’. ‘Ash’ is Ashpreet Singh who was alleged to associate with Inner West.

Whilst at the park the group congregated below a number of CCTV cameras. The cameras depict one member of the group affixing a mask to the lower portion of his face and another pulling the hood of his jumper tight over his head to obscure his face. Other members of the group who cannot be identified with precision disguised themselves in similar ways. One was seen practising boxing moves as were other members of the group. A number of the males can be seen carrying knives; however, there is no evidence that this offender carried a knife or knew that the other males were carrying knives.

The offender was wearing a jumper with Greater West written across the front and back as shown in stills that are incorporated in the agreed facts. At around 10.30pm the offender and another member of the group entered the house and started looking around. The other offenders remained at the park. A female party guest encountered the offender in the house. She knew him and recognised him. She told him to leave because he was not invited. The offender was recognised by three other party guests. He and his companion left the house but remained around the front of the house. The guest and a female friend followed them and saw a group of males approaching them from the park. At this point the offender was standing less than a metre away on the road.

A member of the group walked up to the female guest, who told him to leave. He pushed her in response and she screamed, ‘Don’t touch me’. The 18-year-old victim, Mr Jaxon-John Moala, had followed the female guest out of the house. He saw the other member push her and approached the two, telling the other man to chill out. The female guest stepped between him and Moala and told him to leave Moala alone. Moala held his hands up to indicate that he did not want any trouble and the other man turned to him and said, ‘Who the fuck are you? Do you want issues’, before asking him if he was from Guildford. The man then said, ‘Let’s have a go then’, before swinging a punch at Moala. Moala turned to his right and saw three to four other males from the group running towards him. These males began to punch Moala to the head, back and ribs.

Moala tried to crawl towards the house but felt someone stomp on his head and kick him in the back. The males jumped over his body and ran towards the party. Moala got to his feet and tried to chase them but was attacked by one of the males who had remained behind. As he fell to his knees this male kicked him to the head. The offender stood approximately 1 or 2 metres from this assault as it occurred. He did not physically participate. Following the assault on Moala one of the other members of the group ran to the closed side gate and broke it open using his shoulder. As he ran inside he grabbed a male party guest by the collar and pushed him against the wall yelling, ‘Greater West and 27 District’. The other males then stormed into the backyard where various party guests were celebrating.

The Crown is not in a position to prove that the offender entered the backyard. His involvement in the affray ceased at the point that the others entered the backyard. The others committed various offences in the backyard which are not attributable to this offender. After some time, the group rang back out from the backyard and towards the park where they had congregated beforehand. As they did so, attendees heard some of them yelled, ‘Greater West! fuck G40!’. The offender fled the scene with a number of the others.” [4]

4. ROS 4 December 2020, pp 2-4.

16. Her Honour then recounted the agreed facts of the assault occasioning actual bodily harm in company:

“Then, on 27 August 2019 Ashpreet Singh and Dylan Shackleton were in the Parramatta area with a friend, Faran Ghanbarisisan.

On the same evening the offender and co-offenders, Junior David Tetteh, Gabriel King and Andrew Alauni were together at the North Parramatta McDonald’s. At around 11pm the offenders and an unidentified male walked south down Church Street towards the CBD. They came across Mr Singh, Shackleton and Ghanbarisisan walking across the sandstone bridge on Church Street heading north. They crossed the bridge walking in the opposite direction. Tetteh approached Mr Singh and blocked his path. Tetteh was quickly joined by this offender, King and the unknown male.

Alauni, who had walked past Singh originally, jogged back towards the group to join them. One of the offenders said to Singh, ‘Get on your knees’. Singh responded, “I don’t want any trouble”. King punched Singh to the face before Mr Tetteh grabbed hold of him, tripping him and punching him as he fell to the pavement. While he was on the ground, Mr Tetteh kicked and kneed Mr Singh. This offender then kicked Singh to the face and stepped on his shoulder before King stomped twice on his head. As Mr Singh sat up, King punched him to the face. At some point during the assault Singh’s watch was removed. Singh managed to get up off the ground and ran across the road to the other side of the bridge. As a result, Mr Singh received cuts to his upper lip. He did not seek medical treatment.

Andrew Alauni recorded the assault in slow motion on his mobile phone. After the assault on Mr Singh this offender left the group. He was subsequently identified from the CCTV captured within the Parramatta precinct. Also captured was the offender arriving and leaving the scene in a blue Hyundai i30. Ms Grace O’Brien was the driver of the vehicle and participated in a form of demand in which she identified the offender and Tetteh as passengers in her car that evening.” [5]

5. ROS 4 December 2020, pp 5-6.

17. Each member of the Court reviewed video footage taken by one of the assailants during the assault on Mr Singh. Most of it is recorded or reproduced in slow motion and it is impossible to determine the degree of force used in some of the kicks and blows inflicted on Mr Singh. However, it is a graphic depiction of a group assault on a defenceless victim who went to the ground almost immediately the assault began. Mr Singh’s head snaps back when one of the other members of the group kicked him when he was on the ground but the impact of the applicant’s “stomp” is, or at least appears to be, far less extreme. However, as the presiding Judge commented in argument, the Court is extremely cautious in drawing inferences about degrees of force from images and videos because of the notorious unreliability of such a reasoning process. [6] My review of the video footage did not cause me to revise my impression of the seriousness of the offence and the facts as tendered seemed accurately to reflect what occurred.

    6. Taitoko v R [2020] NSWCCA 43 at [80]-[81].

18. Judge Harris found, correctly and inevitably, that “the facts demonstrate serious offences of unprovoked violence” and observed “it is important that the sentence imposed reflect a substantial degree of general deterrence as a warning to others who might see fit to involve themselves in gangs and in criminal acts of violence.” Her Honour assessed the affray offence as “within the lower end of the mid-range of objective seriousness” noting the applicant was not armed, committed no acts of violence himself, and did not enter the backyard. [7] Her Honour described the assault offence as “callous and nasty” and assessed it as falling “within the mid-range of objective seriousness.” [8] The Judge noted that it was not a planned attack but that the applicant committed acts of violence and specifically kicked or stomped the victim when he was down and was present when others inflicted more extreme blows and kicks.

    7. ROS 4 December 2020, p 6.

    8. ROS 4 December 2020, p 7.

19. The applicant pleaded guilty in the Local Court and received a 25% reduction or discount from the sentence. He had turned 18 not long before he committed the offences and was 19 when he stood to be sentenced.

20. He was born in Ghana, one of seven children. His family was poor, often only eating one meal per day. There was no history of trauma or abuse and he had a close relationship with his father who passed away in 2019. The applicant had immigrated to Australia in 2010 when he was eight and was not in Ghana when his father died. He came to Australia with his sister, a cousin and his aunt and uncle. The rest of his family, including his parents, remained in Ghana. The applicant struggled to adapt to life in Australia and was treated poorly by his aunt and uncle. An example was that he was belted, or forced to stand on one led for a half to one hour, as punishment for eating left over food. He completed year 10 at school but left school in year 11 to start work. He worked as a housekeeper at a hotel and sent part of his income back to his family in Ghana. He used his savings to pay for his father’s funeral. He was involved in a committed relationship and his partner wrote that the applicant had changed the way he made decisions and was improving his life. An employer wrote that he was hardworking, respectful and a positive influence on his co-workers.

21. He presented an impressive array of testimonials, a report from a psychologist, and gave evidence which was largely accepted by the sentencing Judge. He wrote a letter to the court and apologised to the victim’s mother, who was present in court, during his evidence. He also sent a message of apology on social media to the victim.

22. Judge Harris was alive to this body of evidence and what I have written in the last few paragraphs is largely derived from her Honour’s thoughtful ex tempore judgment. The sentencing Judge took into account the applicant’s “somewhat difficult upbringing which included significant upheaval and some deprivation.” [9] Her Honour found that “across the board [Mr Sarhene] is known to be passive rather than violent and the offences do appear to be overwhelmingly out of character.” [10] She found “the risk of re-offending is low and his prospects of rehabilitation are very good.” [11]

Ground 1: The Court erred in failing to consider the applicant’s youth and immaturity in determining the sentence to be imposed.

9. ROS 4 December 2020, p 8.

10. ROS 4 December 2020, p 10.

11. ROS 4 December 2020, p 12.

23. The applicant submits under ground 1 that the sentencing Judge failed to take into account the applicant’s youth and immaturity in assessing his moral culpability, evaluating the objective seriousness of the offence and in balancing the competing objectives of punishment. He identified the four occasions when her Honour referred to the applicant’s age or immaturity and submits that nowhere did she engage with well-established principles regarding the sentencing of young offenders. The respondent submitted that the sentencing Judge was obviously aware of the applicant’s youth, having mentioned it on those four occasions and, as an experienced sentencing Judge or very experienced criminal lawyer can be assumed to be aware of the principles involved and to have applied them appropriately. [12] The respondent noted that the judgment was delivered ex tempore and relied on case law that establishes that such judgments should be read fairly in that context. [13]

    12. Appeal Tcpt, 6 April 2022, p 11.

    13. See, for example, R v Speechley [2012] NSWCCA 130; (2012) A Crim R 175 at [34]-[35]; Rotner v R [2011] NSWCCA 207 at [57].

24. The relevant sentencing principles are not in doubt. The applicant drew attention to the summary of some of the authorities in the judgment of Bellew J in Howard v R [2019] NSWCCA 109 at [87]-[91]. In that case, Bellew J was not satisfied that the offender’s youth and immaturity was a contributing factor to the offending. However, Fullerton J (with whom Macfarlan JA agreed) came to the contrary view stating at [13]-[14]:

“It is not necessary to restate the principles articulated in a succession of authorities governing the sentencing of youthful offenders referred to by Bellew J, save to emphasise that the law recognises the potential for the cognitive, emotional and/or physiological immaturity of a young person to contribute to their breach of the law. It is also well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person's mid-20’s.

…

I would venture to suggest that in most cases it is the offending conduct itself, coupled with the age of a youthful offender that allows for the inference to be drawn that the commission of an unpremeditated or unplanned criminal act was likely to be responsive to the interplay of a young person's immaturity and a compromised capacity for mature decision-making.”

25. Without meaning to do a disservice to those who have written about this important aspect of sentencing in the past, I will attempt to summarise some of the relevant principles:

• There is no doubt that the youth of an offender is a relevant factor, or a “most significant factor” in assessing what sentence should be imposed. [14]

  14. HJ v R [2014] NSWCCA 21 at [56] (Garling J); R v Dalton [2004] NSWSC 446 at [17] (Adams J).

• Considerations of general deterrence may be less significant when sentencing a juvenile or young offender. [15]

  15. KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22] (McClellan CJ at CL).

• Rather, emphasis should be placed on the “the need to provide an opportunity for rehabilitation”. [16]

  16. KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22] (McClellan CJ at CL).

• While the relevance of youth diminishes the closer an offender gets to the age of maturity, there is no bright line between an offender who is just under 18 years of age and one who is just over 18 years of age; “emotional maturity and impulse control develop progressively during adolescence and early adulthood.”[17]

• Where “immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years.”[18]

• An offender’s youth and immaturity is also relevant to an assessment of their moral culpability. ^[19]

• In some cases, where the young offender is said to have committed an “adult crime” or “conducted him or herself as an adult might”, the significance of youth, or the weight to be afforded to it, has been held to be less. [20]

• However, courts should not “be over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult.”^[21]

  17. BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [5] (Hodgson JA); Singh v R (2020) 104 NSWLR 43; [2020] NSWCCA 353 at [55] (Bell P).

  18. R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 at [25].

  19. TM v R [2008] NSWCCA 158 at [33]-[36] (Hall J).

  20. KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [25]; R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 at [25]-[28].

  21. BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [6] (Hodgson JA); Yildiz v R [2020] NSWCCA 69 at [58] (Rothman J).

26. None of the foregoing is “groundbreaking or new” and “these principles are entrenched and well known.”[22] That fact no doubt lies behind the respondent’s submission that Judge Harris must be assumed to have applied those principles. However, I doubt that it is an answer to a ground of appeal such as this to rely on the perceived experience of the sentencing Judge. I am not sure when a judge achieves the status of an “experienced judge”. It may also be that less experienced judges, with little or no experience in a particular area of the law, are more fastidious in ensuring they are up to date and apply the relevant principles. Each appeal must be decided on the record of the trial court and not on the perceived experience or expertise of the judge whose decision is under review.

    22. CW v R [2022] NSWCCA 50 at [66].

27. While I accept the force in the respondent’s submission concerning the caution and flexibility with which this Court should approach an ex tempore sentencing judgment delivered in a busy court, I am satisfied that the applicant has made good this ground. On no occasion when the sentencing Judge referred to the applicant’s age did her Honour refer to any of the principles referred to in the preceding paragraphs. Those principles were referred to by those representing the applicant both in writing and in the course of oral submissions.

28. The first mention of the applicant’s age was to explain how his case came to be separated from his co-offenders – that is, because there was a doubt over his age and a birth certificate had to be obtained from Ghana. The second mention was merely to state the applicant’s age at the time of the offence (18) and at the time of sentence (19). The third mention was to explain a small part of his evidence that her Honour disbelieved and noting that it was explicable due to a “a lack of insight” and by virtue of “the immaturity of a 19-year-old.” [23] The final mention was a reference back to the third, and involved her Honour finding that the applicant was truly remorseful in spite of the lack of insight demonstrated by the part of his evidence that she rejected.

    23. ROS 4 December 2020, p 10.

29. It is also the case that the sentencing Judge emphasised the significance of deterrence on several occasions during her remarks, including when she decided that no sentence other than imprisonment was appropriate. Again, on none of those occasions did her Honour make even passing reference to the principle that deterrence may have less weight in the case of a young offender and that rehabilitation may take precedence in the sentencing process.

30. The respondent also relied on the fact that the sentencing Judge ordered the sentence to be served by way of an ICO, which was said to indicate that her Honour had taken the applicant’s youth into account. I am unable to accept that submission. As the applicant pointed out, the sentencing judge explained why she was referring the matter for an ICO assessment:

“I have taken into account the limited role in the offence played in the affray and that he was not present for the stabbing of the two further victims that were the subject of the sentence proceedings of Mr Ansar and Mr Funaki. I have taken into account the very stringent bail conditions that the offender has been subject to since his arrest…” [24]

24. ROS 4 December 2020, p 14.

31. Her Honour then noted that the sentence was less than three years and that no sentence assessment report had previously been prepared. Nothing was said to suggest that youth or immaturity was the reason her Honour ordered the ICO assessment.

32. I would uphold ground 1.

33. Since circulating a draft of this judgment, I have enjoyed the opportunity of reading the judgment of Leeming JA (also in draft). His Honour has reached a different conclusion in relation this ground and takes the view that it really constitutes an argument about the weight afforded to youth and immaturity “attractively” presented as legal error falling within the ambit of House v The King at 505. In deference to his Honour’s disagreement, I have revisited this ground. It is not controversial that the application involves interference with the discretion exercised by the sentencing Judge and that questions of the weight to be afforded to the many matters relevant to that discretion reside in the primary judge and not this Court. I maintain the view, not perhaps articulated with clarity earlier, that the sentencing Judge fell into “House error” by failing to take into account a relevant consideration. While her Honour was clearly aware of the applicant’s age and the fact that he was the youngest of the men involved, her Honour said nothing that indicated that this was considered in any of the ways discussed in the authorities referred to at [24]-[25]. Counsel’s use of the word “weight” during submissions does not, in my assessment, change that. The most persuasive matters that fortify my conclusion that this ground is established are (i) the emphasis placed on deterrence and the absence of any explanation as to how youth and immaturity might impact on the prominence afforded to that objective of punishment and (ii) the length of the aggregate sentence settled upon by the sentencing Judge.

Ground 2: Her Honour was in error in finding that there was no appropriate alternative to imprisonment when sentencing the applicant for each of the charges before her.

34. The applicant added the second ground of appeal on the morning the appeal was heard. The submission was that it was not open to Judge Harris to conclude that a sentence of imprisonment was the only appropriate sentence. [25] The submission was urged with particular force in relation to the affray charge and it was submitted that the sentencing Judge did not appear to consider the s 5 “threshold” question separately in respect of that offence. Leave was granted to add the ground and the respondent was given the opportunity to file further submissions in writing. The respondent availed itself of that opportunity and submitted that it was open to Judge Harris to reach the conclusion that she did. The respondent emphasised that the offences were both committed in the context of a dispute between gangs and restated a number of relevant facts of the offences. While it was conceded that the applicant committed no act of violence in the fray, the Court was reminded that he stood just a metre or two away from the violence that occurred on the street.

    25. Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1).

35. I am satisfied that this ground is made out in relation to the affray offence. I am unable to accept that the affray offence was one that required the imposition of a sentence of imprisonment given the applicant’s limited role, the fact that he committed no acts of violence himself, that he left the party when asked to and distanced himself when the co-offenders re-entered the party after the melee outside. I have also considered the applicant’s youth, good character and the other positive findings made by Judge Harris. There may be cases where a sentence of imprisonment is imposed because the court is dealing with another offence where imprisonment is inevitable. It may be in such a case that none of the alternatives to imprisonment are appropriate. In such a case, it may be appropriate to exercise one of the other powers under the Crimes (Sentencing Procedure) Act 1999 (NSW), such as the power to convict without further penalty in s 10A. Or it may be appropriate to impose a very short term of imprisonment ordered to be served concurrently. In all cases, the penalty must remain proportionate to the crime. [26]

    26. Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7; Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14.

36. The decision under s 5(1) of the Crimes (Sentencing Procedure) Act is critically important. It reflects the long standing and fundamental prescript that a sentence of imprisonment must only be imposed as a measure of last resort. The section provides:

A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

37. Her Honour’s finding was in the following terms:

“Given the seriousness, in particular of the offence upon Mr Singh of the assault on him in company on 17 August 2019, I am satisfied that the section 5 threshold has been crossed and that only a sentence of imprisonment will address the need for general deterrence.” [27]

27. ROS 4 December 2020, p 12.

38. While there are crimes so grave that there is no real alternative but to impose a sentence of imprisonment, the decision under s 5 should include considerations of all matters relevant to sentence, not only the objective facts of the crime and the requirement for general deterrence. I agree with her Honour’s assessment that this was the situation in relation to the assault occasioning actual bodily harm in company. However, in reaching her conclusion all alternatives and all of the subjective features and purposes of punishment should have been considered.

39. It was not open to her Honour to reach the conclusion that a sentence of imprisonment was the only appropriate punishment in relation to the affray offence when all relevant matters were afforded proper prominence. I accept the applicant’s submission that the criminality in the two offences were conflated in her Honour’s determination under s 5.

40. I would uphold ground 2.

Exercising the sentencing discretion afresh

41. It is necessary to exercise the sentencing discretion afresh in accordance with the High Court’s decision in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The re-sentencing process is more complicated in the present case for two reasons.

42. First, the statutory provisions relating to ICOs do not permit an ICO to be backdated. [28] While there is some conflict in the authorities on the subject, the terms of s 71 of the Crimes (Sentencing Procedure) Act are clear, if inconvenient and impractical. Further, the reasoning of Simpson J in Mandranis v R [2021] NSWCCA 97; (2021) 298 A Crim R 260 is persuasive and was followed by the Court in R v Edelbi (2021) 105 NSWLR 133; [2021] NSWCCA 122, which was conscious of the conflict with the decision in Blanch v R [2019] NSWCCA 304.

    28. Section 71(1) of the Crimes (Sentencing Procedure) Act provides: “An intensive corrections order commences on the date on which it is made.” See also Mandranis v R [2021] NSWCCA 97; (2021) 298 A Crim R 260 at [56] (Simpson AJA); R v Edelbi (2021) 105 NSWLR 133; [2021] NSWCCA 122 at [80] (Hidden AJ); contra Blanch v R [2019] NSWCCA 304 at [91] (Campbell J).

41. Secondly, the applicant has served a substantial period of the term of imprisonment (ICO) imposed in the District Court. He has fulfilled his obligations under the community service component (250 hours) and home detention requirement (6 months) of the ICO. By the time of the hearing, he had been subject to the strictures of the ICO for a period exceeding 14 months.

42. An affidavit sworn by the applicant was read “on the usual basis” in the event that the Court moved to re-sentence. To this point, Mr Sarhene has shown that Judge Harris’ positive finding as to his prospects of rehabilitation was well founded. He completed the 250 hours of community service and appears to be stable and well supported in the community. He has the support of his partner of four years and the couple is expecting their first child in May of this year. After applying for many jobs and attending various interviews, he has now obtained casual employment in two jobs, as a butcher and a barber. The applicant works six days a week and has plans to pursue an apprenticeship. He continues to support his family in Ghana financially, has abstained from alcohol and drugs and remains involved in his local community.

43. Those matters are relevant to the first decision that the Court must make, namely whether, having considered all other alternatives, no sentence other than imprisonment is appropriate. [29]

    29. Crimes (Sentencing Procedure) Act 1999 (NSW), s 5.

44. In relation to the affray offence, I am not satisfied that a sentence of imprisonment is the only appropriate alternative. There were some serious aspects of the offence. In particular, the offence was gang related, there was some planning involved in the group attending the party where the violence occurred, and others involved in the offence committed serious and unprovoked acts of violence. On the other hand, the applicant committed no acts of violence himself and initially left the party when he was asked to do so. Further, he was a young, first-time offender whose prospects of rehabilitation are good. In all of the circumstances there are alternatives to a sentence of imprisonment which will fulfil the purposes of punishment under s 3A of the Crimes (Sentencing Procedure) Act, while encouraging and fostering the applicant’s rehabilitation. I would impose a community corrections order (“CCO”) pursuant to s 8 of the Crimes (Sentencing Procedure) Act. Because the applicant has already been subject to an ICO for a period of over a year, I would order the term of the CCO to be 12 months and that it commence on the date of publication of this judgment. [30] I would propose the following conditions on the CCO, in accordance with ss 88 and 89 of the Crimes (Sentencing Procedure) Act:

    30. Crimes (Sentencing Procedure) Act 1999 (NSW), s 86.

1. The applicant must not commit an offence.

2. He must appear before the court if called upon to do so at any time during the term of the CCO.

3. He must accept the supervision of a community corrections officer for the period of the order or such period as considered necessary by the officer. He must report to the corrections officer who has been supervising him on the existing ICO within seven days of the date of this judgment.

4. He must not associate with Andrew Alauni, Gabriel King, Junior Tetteh or Frank Bosco.

47. In relation to the offence of assault occasioning actual bodily harm in company, I am satisfied that the offending is so serious that, despite the applicant’s youth, prior good character and other mitigating circumstances, the only appropriate sentence is one of imprisonment. I accept the apparently agreed position that it was a chance meeting, that there was no planning, and the offence committed was a spontaneous one. Even so, the assault on Mr Singh was a savage one and involved a group of young men setting on a defenceless victim who was one of the targets (although not the victim) of the affray offence a couple of weeks earlier. On this occasion, the applicant himself kicked the victim and stood on his shoulder, and stood by while another member of the group kicked Mr Singh hard to the head twice. While the applicant’s youth, good character and prospects of rehabilitation have a significant role to play, the penalty must also deter other would-be offenders, including young men who would involve themselves in gangs and resort to street violence, from committing such offences.

48. In terms of the length of the sentence, and noting the maximum penalty of 7 years, I would commence with a sentence of 1 year and 8 months (20 months) and reduce that by 25% to take into account his early plea of guilty. The result would be a sentence of 15 months. I would order the sentence to be served by way of an intensive corrections order. I am satisfied, on the material tendered in the District Court and based on the applicant’s progress since, that community safety is best achieved by the sentence being served by way of an ICO. [31] Noting the conditions that applied to the original ICO, and the ultimate length of the sentence, the only conditions I would impose as part of the ICO are those mandated by s 73. I am satisfied that the applicant’s compliance with the terms of the ICO imposed in the District Court constitute “exceptional circumstances” so that none of the additional conditions provided for in s 73A(2) are required. [32]

    31. Crimes (Sentencing Procedure) Act 1999 (NSW), s 66.

    32. Crimes (Sentencing Procedure) Act 1999 (NSW), ss 73A(1A)-(1B).

49. By analogy with the approach suggested by Simpson AJA in Mandranis v R, I would reduce the sentence by a period of 14 months to take the period served under the ICO, including the community service and home detention conditions, into account in a transparent and meaningful way. This would result in a sentence of one month to be served by way of an ICO. There is no precise mathematical formula at play, but I have reduced the length of the sentence to reflect the part of the sentence imposed by Judge Harris that has already been served.

50. It is obvious from the foregoing, but to comply strictly with s 5(2) of the Crimes (Sentencing) Procedure Act, I indicate that I would impose a sentence of less than six months because (i) the appropriate length of the sentence should be reduced to take into account the period the applicant has already been subject to an ICO and (ii) the legislation does not allow an ICO to be backdated.

51. I would impose a supervision condition on the ICO in line with the condition imposed under the CCO. In doing this, I again note that the original ICO was subject to much more stringent conditions.

Orders

52. For those reasons I would make the following orders:

1. Grant leave to appeal against sentence.

2. Allow the appeal.

3. Quash the aggregate sentence imposed in the District Court on 29 January 2020 and in lieu thereof:

1. For the offence of affray, the applicant is subject to a community corrections order (CCO) pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 12 months commencing 13 April 2022 on the following conditions:

1. The applicant must not commit an offence.

2. He must appear before the court if called upon to do so at any time during the term of the CCO.

3. He must accept the supervision of a community corrections officer for the period of the CCO or for such shorter period as considered necessary by the officer.

4. The applicant must report to the corrections officer who has been supervising him on the existing ICO within seven days.

5. He must not associate with Andrew Alauni, Gabriel King, Junior Tetteh or Frank Bosco.

2. For the offence of assault occasioning actual bodily harm in company, the applicant is sentenced to imprisonment for a period of one month commencing 13 April 2022, such sentence is to be served by way of an intensive corrections order. The ICO is subject to the following conditions:

1. The applicant must not commit any offence.

2. The applicant must submit to supervision by a community corrections officer.

53. IERACE J: I also agree with Hamill J that ground 2 is made out and with the orders that he proposes.

54. In relation to ground 1, there can be no doubt, from the passages identified by Leeming JA, that when the sentencing judge delivered her ex tempore remarks on sentence she was aware that the applicant was aged 18 at the time of the offences and 19 at the time of sentence. Her Honour applied that knowledge in the determination of some of the issues, expressly taking the applicant’s age into account in determining that his lack of insight into his offending behaviour, when giving evidence in the sentence hearing, was consequent to “the immaturity of a 19 year-old”. Similarly, her Honour referred to the applicant’s youth in determining that he was genuinely remorseful.

55. However, although an offender’s youth is a significant factor in determining whether general deterrence should be modified, as noted by McClellan CJ at CL in KT v R [33] at [22], the sentencing judge did not, in terms, engage with the defendant’s youth in her Honour’s consideration of the role of general deterrence and whether no penalty other than imprisonment was appropriate: s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The only reference to those issues in the sentencing judge’s remarks was as follows:

“It is important that the sentence imposed reflect the principle of general deterrence, to act as a warning to those giving consideration to involving themselves in gang related violence.

It is submitted that the section 5 threshold has not been crossed and that a sentence of something other than imprisonment ought to be imposed.

Given the seriousness, in particular of the offence upon Mr Singh of the assault on him in company on 17 August 2019, I am satisfied that the section 5 threshold has been crossed and that only a sentence of imprisonment will address the need for general deterrence.”

33. (2008) 182 A Crim R 571; [2008] NSWCCA 51.

56. Gang-related violence, particularly since there was evidence that the gangs involved were of youths and young adults, was a matter that had relevance to the issue of general deterrence in this sentencing exercise and the potential to be a countervailing factor to any mitigatory effect of the applicant’s youth. However, that was a factor that was not identified as being relevant at all to these two issues.

57. The applicant was aged 18 years and 7 weeks at the time of the affray. The offence of assault occasioning actual bodily harm in company was committed two weeks later. The applicant’s youth warranted consideration as to whether s 5(1) of the Crimes (Sentencing Procedure) Act was made out, particularly since his age barely cleared the temporal threshold for options of adult punishment. The observations made by Hodgson JA in BP v R [34] at [5] are particularly appropriate:

“5 … while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity, and that a “child offender” of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.”

34. (2010) 201 A Crim R 379; [2010] NSWCCA 159.

58. The respondent’s submissions on ground 1 were to the effect that, since it is apparent from the remarks on sentence that the sentencing judge was cognisant of the applicant’s age, and being mindful of the fact that those remarks were delivered ex tempore, it follows that his age was taken into account in accordance with the well-established principles that apply to the sentencing of young offenders. Furthermore, it was “open” to her Honour, assuming that she did apply those principles, to find that the threshold set out in s 5(1) of the Crimes (Sentencing Procedure) Act was crossed in respect of both offences.

59. The applicant’s youth and consequent immaturity was a central feature of the applicant’s subjective case on sentence. I agree with Leeming JA that, had the applicant’s submission been that insufficient weight was given to the factor of the applicant’s youth, this ground would fail. However, whether the applicant’s youth was taken into account must be assessed based on the remarks on sentence. Having regard to the remarks as a whole, and the passage excerpted at [55] above in particular, I cannot conclude that her Honour took the applicant’s youth into account at all when assessing the threshold contained in s 5(1) of the Crimes (Sentencing Procedure) Act in respect of each offence and the need for general deterrence in the formulation of the sentence.

60. Accordingly, I also agree with Hamill J that Ground 1 is made out.

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Endnotes

Decision last updated: 14 April 2022