Ss v R; JC v R

[2009] NSWCCA 114

New South Wales
Court of Criminal Appeal

CITATION:	SS v R; JC v R [2009] NSWCCA 114
HEARING DATE(S):	12 December 2008
JUDGMENT DATE:	23 April 2009
JUDGMENT OF:	Tobias JA at 1; James J at 2; Price J at 3
DECISION:	In the matter of SS v R (1) Leave to appeal be granted. (2) Quash the sentences imposed in the District Court on 27 July 2007 in respect of charges 4 and 5 being offences of robbery with wounding contrary to s 98(1) of the Crimes Act. (3) The applicant SS in respect of charge 4 is convicted and sentenced to imprisonment consisting of a non-parole period of 3 years 8 months commencing on 28 December 2005 and expiring on 27 August 2009 with a balance of term of 2 years 4 months commencing on 28 August 2009 and expiring on 27 December 2011. (4) The applicant SS in respect of charge 5 (including the offences on the Form 1) is convicted and sentenced to imprisonment consisting of a non-parole period of 3 years 8 months commencing on 28 December 2006 and expiring on 27 August 2010 with a balance of term of 2 years 4 months commencing on 28 August 2010 and expiring on 27 December 2012. (5) The sentences imposed in the District Court on 27 July 2007 in respect of charges 1, 2 and 3 are confirmed. (6) Confirm the Judge's order that the whole of the sentences be served as a juvenile offender. The earliest date on which the applicant SS will be eligible for release to parole is 27 August 2010. In the matter of JC v R (1) Leave to appeal be granted. (2) Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - SENTENCING - juvenile co-offenders - parity - principle of totality - special circumstances - relevance of principles applicable in the sentencing of children - consideration of difference in chronological ages of co-offenders - duress - whether offence planned - drug addiction as a matter of mitigation
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 s 3, s 6, s 19 Crimes Act 1900 s 97(1), s 98(1), s 154A(1)(a), s 195(b) Crimes (Sentencing Procedure) Act 1999 s 21A(2)(i), s 21A(2)(n), s 21A(3)(d), s 21A(3)(f), s 44(2) Criminal Appeal Act 1912 s 6(3)
CATEGORY:	Principal judgment
CASES CITED:	DB v The Queen (2006) 167 A Crim R 393 DPP v Cornwall [2007] NSWCCA 359 House v The King (1936) 55 CLR 400 Legge v R [2007] NSWCCA 244 Pearce v The Queen (1998) 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 R v AD [2005] NSWCCA 208 R v AEM [2002] NSWCCA 58 R v Bus (Court of Criminal Appeal, 3 November 1995, unreported) R v C, S and T (Court of Criminal Appeal, 12 October 1989, unreported) R v Close (1993) 31 NSWLR 743 R v GDP (1991) 53 A Crim R 112 R v Henry (1999) 46 NSWLR 346 R v Hewitt [2007] NSWCCA 355 R v Janceski [2005] NSWCCA 288 R v MHH [2001] NSWCCA 161 R v MMK (2006) 164 A Crim R 481 R v Rushby [1999] NSWCCA 104 R v Simpson (2001) 53 NSWLR 701 R v Tadrosse (2005) 65 NSWLR 740 R v Todorovic [2008] NSWCCA 49 Regina v Do [2005] NSWCCA 209
PARTIES:	SS (Appellant) JC (Appellant) Crown (Respondent)
FILE NUMBER(S):	CCA 2007/3706; 2007/5072
COUNSEL:	T. Gartelmann (SS) Applicant D. Carroll (JC) Applicant P. Ingram (Crown) Respondent
SOLICITORS:	S. O'Connor Legal Aid Commission (SS) Applicant C. Hunter (JC) Applicant S. Kavanagh Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/21/1234 07/21/1029
LOWER COURT JUDICIAL OFFICER:	Hughes DCJ
LOWER COURT DATE OF DECISION:	27/07/2007 SS 18/02/2008 JC

2007/3706

TOBIAS JA
JAMES J
PRICE J

23 April 2009

SS v R

JC v R

Judgment

1 TOBIAS JA: I agree with Price J.

2 JAMES J: I agree with Price J.

3 PRICE J: SS and JC, who are young offenders, seek leave to appeal against the severity of sentences imposed upon them by Hughes DCJ (the Judge). The appeals were for the sake of convenience heard together. As the applicant SS was sentenced before the applicant JC I will initially detail matters relevant to the appeal of SS.

4 The applicant SS seeks leave to appeal against the severity of the sentences imposed upon him in the District Court at Penrith by the Judge on 27 July 2007 following his pleas of guilty to five charges involving robbery. The applicant had asked that a further six offences listed on a Form 1 be taken into account on sentence.

5 The first charge was an offence of robbery in company that was committed on 3 December 2005 at the United Petroleum petrol station in Berkshire Park. The second charge was also an offence of robbery in company that was committed on 4 December 2005 at Liquorland in Kingswood Park. The third charge was an offence of robbery whilst armed with an offensive weapon that was committed on 12 December 2005 at Briggs Liquor in Colyton.

6 Each of these offences contravened s 97(1) of the Crimes Act 1900 which carries a maximum penalty of 20 years imprisonment.

7 The fourth charge was an offence of robbery in company with wounding that was committed at the United Petroleum store in Berkshire Park on 28 December 2005. The fifth charge was also an offence of robbery in company with wounding on 28 December 2005 at the United Petroleum store. These offences were committed with the applicant JC and contravened s 98(1) of the Crimes Act which carries a maximum penalty of 25 years imprisonment. A standard non-parole period of 7 years has been prescribed for an offence contrary to s 98(1).

8 The offences included on the Form 1 were as follows:

(1) Take and drive conveyance on 26 October 2005 contrary to s 154A(1)(a) of the Crimes Act ;
(2) Robbery in company on 29 November 2005 at United Petroleum, Berkshire Park contrary to s 97(1) of the Crimes Act;
(3) Robbery in company on 4 December 2005 at the 7-11 convenience store, Werrington contrary to s 97(1) of the Crimes Act ;
(4) Robbery in company on 12 December 2005 at Liquor Stax, Colyton contrary to s 97(1) of the Crimes Act ;
(5) Attempt robbery in company on 22 December 2005 at the United Petroleum store in Berkshire Park contrary to s 97(1) of the Crimes Act ;
(6) Malicious damage on 28 December 2005 contrary to s 195(b) of the Crimes Act .

9 A discount for the utilitarian value of the pleas of guilty was assessed by the Judge at 25 per cent and special circumstances were found.

10 In respect of the first, second and third charges, the Judge sentenced SS to fixed terms of imprisonment of 3 years commencing on 28 December 2005 and expiring on 27 December 2008.

11 For the fourth charge, SS was sentenced to 6 years imprisonment consisting of a non-parole period of 4 years commencing on 28 December 2005 and expiring on 27 December 2009 with a balance of term of 2 years commencing on 28 December 2009 and expiring on 27 December 2011.

12 For the fifth charge, SS was sentenced to 6 years and 4 days imprisonment consisting of a non-parole period of 4 years commencing on 24 December 2006 and expiring on 23 December 2010 with a balance of term of 2 years and 4 days commencing on 24 December 2010 and expiring on 27 December 2012.

13 As a result of partial accumulation and concurrency, the effective overall term imposed was 7 years commencing on 28 December 2005 and expiring on 27 December 2012 and the effective overall non-parole period was (4 days short of) 5 years commencing on 28 December 2005 and expiring on 23 December 2010.

14 The Judge said that he would take into account the matters on the Form 1 when he sentenced for “the s 98 offences”. It was accepted on appeal that the offences on the Form 1 were taken into account on the sentence imposed for the fifth charge.

15 The applicant SS, who was born on 29 March 1990, was at the time of the commission of the offences 15 years old and 17 years old on sentence. The Judge ordered pursuant to s 91 of the Children (Criminal Proceedings) Act 1987 that the whole of his sentence be served in a juvenile detention centre.

Facts

16 The applicant SS and several co-offenders which included the applicant JC had become members of a gang called the ‘Dark Lotus Phamily’ (DLP). The ideas of a rock group called the ‘Insane Clown Posse’ were said to have inspired the gang. All of the co-offenders, the Judge said in his sentencing remarks, implicated an older male Eli Byrne as being the gang leader.

17 A statement of agreed facts was tendered which the Judge recited during his remarks on sentence. A summary of the facts of each offence is as follows:

Charge 1 3 December 2005
At about 11.45pm, SS and a co-offender Christopher Allen had entered the United Petroleum petrol station Berkshire Park. They had travelled there in the company of Rhys McDicken, Eli Byrne, Thomas Smith and JC. SS jumped over the counter to be on the same side as the staff member. Allen ran back to the electronic doors and waved. JC then attempted to open the doors. Smith used a shopping trolley to ram the doors opening them. Both Smith and JC ran into the store. SS told the staff member to “just go back” and pushed him back. JC and Smith jumped over the counter so that all of the co-offenders were on the other side of the counter with the staff member. They demanded he open the cash register. One of the offenders removed from the staff member a head-dress of religious significance which he had been wearing. Smith started punching the staff member and pulled his hair until he opened the till. They took approximately $300 from the till and about $500 worth of cigarettes. All of the co-offenders then decamped to the getaway car which was driven by McDicken.

Charge 2 4 December 2005

At about 12.50am, McDicken drove SS, JC, Smith, Allen, Byrne and an unknown male to a Liquorland store at Kingswood Park. SS, JC, Smith and Allen entered the store while the unknown male remained outside as a lookout. Smith punched the store attendant three times to the head. Another staff member entered the store. SS directed him to the rear of the store where bottles of alcohol were thrown at both store attendants by the co-offenders. The store attendants and SS became engaged in a wrestle. Smith stole $370 from the cash register, whilst another co-offender stole nine bottles of alcohol. The co-offenders fled to the car and drove to Byrne’s home. One of the store attendants suffered bruising to the left eye.

Charge 3 12 December 2005

At about 10.40am, SS with Joshua Curtin and Damien Gore-Lensky entered the Briggs Liquor store at Colyton. The co-offenders selected a number of ‘Jim Beam’ bottles having a total value of $576.95. When asked for payment by a staff member, Gore-Lensky swung a silver coloured metal tomahawk at the staff member who moved backward out of its path and grabbed the tomahawk with his left hand. Gore-Lensky tried to pull the tomahawk back from the staff member. As this was occurring, one of the co-offenders was placing the bottles into a bag. The staff member told Gore-Lensky to let go of the tomahawk. The staff member punched him a couple of times in the face but Gore-Lensky continued to hold onto the tomahawk.
Another staff member attempted to assist but was pushed by SS to his neck area. The staff member took hold of SS by his jacket and SS hit the staff member in the left cheek. A co-offender Joshua Curtis threatened the staff member by raising a bottle of alcohol above his head as if he was going to strike the staff member and said “Let him go”. The staff member let go of SS. The staff member who had hold of the tomahawk felt his hand being cut and let go of it. Gore-Lensky raised the tomahawk over his shoulder at the staff member. SS grabbed a couple of bottles of alcohol from the store. The three co-offenders ran from the store and were seen to enter a vehicle parked nearby. The total value of the alcohol stolen from the store was $402.95.

Charges 4 and 5 28 December 2005

At about 2.20am, SS and JC entered the United Petroleum petrol station at Berkshire Park where Abdul Khan aged 73 years and Kasim Khan aged 16 were working. SS was armed with a crowbar and JC was armed with a baseball bat. Both offenders jumped onto the counter. SS struck Kasim Khan to the head with the crowbar. At the time no resistance was being offered by Kasim Khan who after being struck fell to the ground and remained on the floor at the inside corner of the front counter.
JC approached Abdul Khan and struck him in the head with the baseball bat. SS was at this time attempting to open one of the tills without success. JC went to another till and opened it and both offenders took money from it. They also took cigarettes from the shelves directly behind the front counter. Abdul Khan picked up a chair and threw it at SS who then hit Abdul Khan in the head twice with the crowbar. The offenders continued to take money and cigarettes from behind the counter. SS asked Kasim Khan “How do you open the safe?” to which Kasim Khan responded that he did not know as he was a new worker. JC jumped back over the counter.
SS said, “I’d better call an ambulance.” He was observed to pick up the handset of the phone situated behind the counter and was heard to be pressing the phone buttons. He then dropped the handset and jumped over the counter. Both offenders then ran from the store taking with them as they left other items of property including a bunch of flowers.
Both Kasim Khan and Abdul Khan were taken to hospital. The injuries Abdul Khan had suffered included an occipital bone fracture, a small intracranial haemorrhage to the head, a laceration to the top of the head and swelling to the right frontal side of the forehead and a superficial skin tear of the right forearm. Kasim Khan sustained a large deep laceration about 15 centimetres long to the back of the skull and the skull bone was somewhat exposed.
The Judge said that Doctor Balasingham reported that “Kasim Khan sustained a serious injury to this head and he was lucky enough to escape serious brain damage or even death.” (ROS at 13)

18 It is necessary to detail the facts of the robbery offences on the Form 1 to appreciate their seriousness.

Form 1 offence 2: 29 November 2005

At about 2.35am, the co-offender Smith entered the United Petroleum service station at Berkshire Park. After selecting a drink, Smith jumped over the counter, looked around, jumped the counter again and then motioned to the three co-offenders who were waiting outside to enter the store which they did. One of the co-offenders approached a second staff member and threatened him with violence, while Smith and the two other co-offenders went behind the counter. They punched the first staff member twice, causing a small cut to his lip. They took money from the till and cigarettes. The group then forced the second staff member to open an overdraft cash register from which they removed more money. The total amount of money stolen was about $1500 and an undetermined large volume of cigarettes was also stolen. All of the co-offenders then ran from the scene.

Form 1 offence 3 4 December 2005

At about 12.50am SS and Smith knocked on the locked entry doors of the 7-11 store attached to the service station. The attendant allowed them entry. Smith selected a drink, approached the counter, handing over money. When the attendant attempted to give Smith some change, Smith took hold of his arm and refused to release it. SS attempted to kick open a glass door that divided the store from the staff area behind the counter, without success. The co-offenders then jumped through the security wiring and started to push the attendant who was cowering and not resisting. SS removed a quantity of cigarettes from behind the counter whilst Smith attempted to gain entry to the till. Smith was unable to do so and pulled the attendant back to the register and demanded that he open it. After the till was opened by the attendant Smith then removed the contents from it. Whilst Smith was doing this, the attendant continued to cower. Smith punched him on a number of occasions and kneed him to the head. JC entered the store and placed cigarettes in a bag. All fled with the proceeds and were driven away by McDicken.

Form 1 offence 4 12 December 2005

About 5.50pm, SS and Gore-Lensky were throwing bottles of Jim Beam from the shelves of the Liquor Stax store into a bag. A female store attendant approached them asking, “What are you doing?” Gore-Lensky raised his right arm and made a fist at her. The store attendant stepped back as she was fearful of being assaulted and both offenders walked quickly out of the store.

Form 1 offence 5 22 December 2005

At about 4.30am, SS in company with JC entered the United Petroleum service station store at Berkshire Park. They jumped on top of the counter in a threatening manner. Store attendant Raza Khan grabbed a cricket bat and held it up in a defensive manner, facing the co-offenders who then jumped off the counter. Another store attendant Abdul Khan swung a broom at the co-offenders making contact with the back of the legs of SS. They were chased out of the store by the store attendants. Both co-offenders entered a vehicle and were driven away.


This summary of facts has been extracted from the statement of agreed facts and the sentencing remarks of the Judge.

The subjective case for SS

19 During the proceedings on sentence SS gave evidence. He testified that when he first met up with the members of the gang called ‘DLP’ he did not understand they were involved in illegal activities. He said that he did the robberies as he was scared for his safety and the safety of his family. He had seen them cut Gore-Lensky’s arm. He had been threatened. SS said: (POS 13/6/07 at 22)

“If I didn’t take part in the armed robberies that they might have to pay me a nasty visit was one of them, they would tie me down and hurt my nephews and my mother and that in front of me.”

20 Two Juvenile Justice reports were tendered to the Judge. The applicant’s parents separated when he was 18 months old. Following separation, he lived with his father for two years. During this time he had visitation rights with his mother for a short period of time before she realised she was unable to cope with the children – the applicant had an older brother. A neighbour, JC’s mother, took informal custody of the applicant at age four and half years. The applicant’s mother advised Juvenile Justice that her family saw JC’s mother as a foster mother to SS. He lived with JC’s family off and on during his remaining formative years. SS had no contact with his father who he had assumed no longer wanted anything to do with him.

21 SS indicated to Juvenile Justice that his transition to High School was unsuccessful and fraught with difficulties for him. He stated that he completed part of Year 7, during which time he truanted on many occasions and when he was in attendance he engaged in disruptive behaviour. SS was referred to the Penrith Adolescent Centre, a special school designed to address the needs of behaviourally challenged students. He reported to not coping with either the programme or those attending and was involved in disruptive behaviour, fighting with other students and truanting. He left the programme at the age of 13 after an alleged assault on a teacher. Despite extensive efforts by the Home/School Liaison Officer to engage him in further education, SS failed to return to school. Consequently, his education level was described as low and his mother described him as functioning at little more than primary school level. Ms Anderson, a psychologist, had opined in 2004 that, due to the young person missing large sections of schooling during his formative years, this had impacted on his ability to function on a day-to-day basis at a level of his potential ability.

22 Prior to his arrest SS worked as a casual part-time labourer and with a panel beater.

23 SS stated that he would smoke marijuana on a daily basis spending up to $50 per day on his habit from the age of 12 years. He would consume alcohol approximately 2-3 times per week and use $50 worth of speed each fortnight. He had no direct issues with substance abuse since being on remand. However, he had undertaken counselling to address these issues as they arose.

24 Ms Karen Clarke, a psychologist, in a specialist background report opined that SS was a young man who had experienced much instability in his life and hence presented with many psychological issues. He fitted the criteria for conduct disorder – early onset. Further his personality characteristics were such that he overreacts, she said, to environmental situations with anxiety, suspicion and over-concern and has limited inbuilt coping mechanisms. Additionally, he shows elements of an underlying personality disorder or the possible emergence of one. Testing administered by the psychologist to provide a measure of the applicant’s educative ability or fluid intelligence disclosed that he fell within the average range for his age group. The psychologist noted that SS took partial responsibility for the commission of the offences. He had indicated that whilst he knew he did wrong he believed, if he had not been under duress, he would not have committed the offences.

25 The Judge detailed in his sentencing remarks (ROS at 27) a letter written by SS to him in which SS apologised for the crimes that he had committed and had stated:

“ All I can say is that I was under pressure at the time by older boys to carry out the crime. I know in spite of this I still have to take responsibility for my actions.”

26 At the time of the commission of the offences, SS was on 12 months probation to be of good behaviour which had been imposed at the Cobham Children’s Court on 22 March 2005 for the offence of malicious damage.

JC’s Appeal

27 The applicant JC was sentenced by the Judge at Penrith District Court on 18 February 2008. He had pleaded guilty to two charges of robbery in company with wounding on 28 December 2005 contrary to s 98 of the Crimes Act. These were the fourth and fifth charges with which SS had been charged the facts of which I have summarised at [17]. JC asked that the Judge take into account four offences on a Form 1, each of which was an offence of robbery in company contrary to s 97(1) of the Crimes Act.

28 Included on the Form 1 were:

(1) The offence of robbery in company on 3 December 2005 at the United Petroleum Petrol store at Berkshire Park. This was the first charge to which SS had pleaded guilty;
(2) The offence of robbery in company on 4 December 2005 at the 7-11 convenience store (offence 3 on the Form 1 in the sentence proceedings for SS);
(3) The offence of attempt robbery in company on 22 December 2005 at the United Petroleum store at Berkshire Park (offence 5 on the Form 1 in the sentencing proceedings for SS);
(4) The offence of robbery in company on 4 December 2005 at the Liquorland store in Kingswood Park. This was the second charge to which SS had pleaded guilty.

The facts of these offences are also summarised at [17]. The Judge on reciting the facts of the attempted robbery on 22 December 2005 when he sentenced JC noted that (ROS at 7):

“The victim Khan has taken a cricket bat from behind the counter and swung it at the offenders. Both males have then turned and ran from the store, with the victim chasing them.”

29 A discount for the utilitarian value of the pleas of guilty was assessed by the Judge at 25 per cent. A further discount of 25 per cent for assistance to the authorities was allowed. Special circumstances were found.

30 For the first charge, JC was sentenced to a term of imprisonment of 4 years consisting of a non-parole period of 2 years commencing on 1 November 2007 and expiring on 31 October 2009 with a balance of term of 2 years commencing on 1 November 2009 and expiring on 31 October 2011.

31 For the second charge, a sentence of 4 years imprisonment was imposed consisting of a non-parole period of 2 years commencing on 1 February 2008 and expiring on 30 January 2010 (sic) with a balance of term of 2 years commencing on 31 January 2010 and expiring on 30 January 2012.

32 The effective overall term imposed was 4 years 3 months commencing on 1 November 2007 and expiring on 31 January 2012 and the effective overall non-parole period was 2 years 3 months commencing on 1 November 2007 and expiring on 30 January 2010.

33 The Judge directed that the whole of the sentence be served in a juvenile detention centre.

34 JC seeks leave to appeal against the severity of these sentences.

Subjective circumstances

35 JC was born on 6 December 1988 and at the time of the commission of the offences being charges 1 and 2 had just turned 17. He was 18 years old when sentenced. The Juvenile Justice Background Report records that he is of white Anglo-Saxon and Torres Strait Islander descent. It was reported that JC was conceived as a result of his mother being raped by a member of a motorcycle gang and he has never known his father. When JC was approximately 3 years old, his mother invited her brother to commence living with them as he had been recently released from prison and was homeless. JC informed the author of the report his uncle was an extremely harsh disciplinarian who regularly beat him. This resulted in his uncle being evicted from the home. When he was about 11 years old, JC’s mother moved her family to reside on a small pig farm where his uncle was employed. Initially the move was positive, however, according to JC he was verbally threatened and physically assaulted on a regular basis by the uncle. JC reported that his uncle introduced him to cannabis when he was 12 years old.

36 When his mother returned the family in 2003 to the Mount Druitt area JC said that he was not happy about his return to Sydney. It was around this time that he commenced to have a number of domestic disputes, which resulted in him attempting self-harm. He, however, had been expelled from Galston High School towards the end of Year 8 due to ongoing misbehaviour. In 2005 he commenced and completed his Year 10 studies through the WSTEC school provided by Mission Australia. Upon receiving conditional bail for the offences the subject of this appeal, he completed a 12-week course in Horticulture Certificate 3 and commenced a Conservation and Land Management course. He also obtained some part time employment in marketing.

37 JC reported that whilst at the WSTEC school he was offered and regularly used a wide variety of illegal drugs which were supplied to him by Byrne. He reported that he was not currently using any illegal substances. His initial period of incarceration when refused bail assisted with his detoxification as did his strict supervision whilst on conditional bail.

38 Juvenile Justice records revealed that he had not been supervised previously on any community based orders. During the course of the interview he had expressed concern and remorse towards the victims of his crimes. JC did not have a prior criminal history.

39 JC had informed the author of the Juvenile Justice report that Byrne, a teacher, had gained his trust by offering him additional music tuition in Byrne’s home after hours. Byrne had given him drugs and alcohol and told him that he would have to pay Byrne back for these favours by committing crimes for him. JC reported that Byrne would threaten both him and his family. JC said that Byrne and Ben Teasdale broke into his family home at 11.00pm on 27 December 2005 and woke him up. When he awoke Byrne waved a bowie knife in front of his face whilst Teasdale had a tomahawk style weapon. They appeared angry and JC believed that this was because of the failed robbery attempt the week before. JC reported that when these men were in his home he was afraid for the safety of his family members.

40 During the proceedings on sentence, JC testified that after being woken, he was given a baseball bat by Byrne and SS took a “metal pinch-bar.” He had also given evidence of threats made about his baby brother before the attempted robbery on 22 December 2005. JC‘s testimony included a history of his drug addiction. He had commenced smoking cannabis on a daily basis when he was 11 years old. Byrne had supplied him with prohibited drugs and alcohol when he was 16.

The Grounds of Appeal of SS

Ground 1: The sentences in their aggregate are unduly disproportionate to those imposed in the case of a co-offender giving rise to a justifiable sense of grievance.

Ground 2: The proportion of the effective non-parole period to the effective term of sentence is unduly disproportionate to that in the case of a co-offender, giving rise to a justifiable sense of grievance.

41 These grounds of appeal raise the issue of parity relative to the sentences imposed upon JC and may be conveniently considered together. The focus of the complaint was the sentences imposed for the offences of robbery in company with wounding (charges 4 and 5) which were committed with JC.

42 The starting point for the sentences for JC and SS for these offences, his Honour determined, was 8 years imprisonment. No complaint was made by SS about the same starting points of the head sentences. SS, however, complained about the difference in the extent of accumulation of the sentences for these offences. The sentences imposed in the case of JC were accumulated by a period of 3 months whereas for SS the accumulation was for one year. SS argued that no rational basis existed for the difference in accumulation and the sentences imposed upon him were unduly disproportionate to those imposed on JC giving rise to a justifiable sense of grievance. Counsel for SS in oral argument in this Court contended that the disparity could neither be justified by the principle of totality nor the additional offences on the Form 1.

43 SS and JC were charged differently. JC (charges 1 and 2) and SS (charges 4 and 5) each stood for sentence for the robberies with wounding committed on 28 December 2005 at the United Petroleum store. SS was also charged with robbery in company on 3 December 2005 (charge 1), and robbery in company on 4 December 2005 (charge 2). The offences of robbery in company (charges 1, 2) were the first and fourth matters included on the Form 1 for JC. JC had not been separately charged with these offences. The second and third offences included on the Form 1 for JC were matters 3 and 5 on the Form 1 for SS.

44 SS was further charged with an offence of armed robbery on 12 December 2005 (charge 3) whereas JC was not nor was it a matter included on the Form 1. The offences on the Form 1 for SS included a robbery in company on 12 December 2005 (no 4), take and drive conveyance on 26 October 2005 (no 1) and malicious damage on 28 December 2005 (no 6). JC was neither charged with these offences nor were they included on a Form 1.

45 The Judge was obliged to fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence as well as questions of totality: Pearce v The Queen (1998) 194 CLR 610. An overall sentence which was just and appropriate to the totality of the offending behaviour of the applicant SS was required in structuring an overall sentence. Questions of concurrence or accumulation are discretionary matters for the sentencing Judge but “that discretion is generally circumscribed by a proper application of the principle of totality”: R v MMK (2006) 164 A Crim R 481 at [13].

46 The structure of the sentences imposed upon SS included concurrent fixed terms of imprisonment for charges 1, 2 and 3 which were totally subsumed in the sentence for charge 4. The sentence for the fifth charge was partially accumulated upon the sentence for the fourth charge by almost a year. It was open to his Honour to structure the sentences in this way provided that the overall sentence did not offend the principle of totality.

47 The parity principle is “an aspect of equal justice”: Postiglione v The Queen (1997) 189 CLR 295 at 301. As was pointed out by Dawson and Gaudron JJ “like should be treated alike, but that, if there are relevant differences, due allowance should be made for them.”

48 The totality of the offending behaviour of SS for which he was sentenced was greater than that of JC. Different considerations of totality applied for which the sentencing Judge in my opinion made due allowance. The disparity in the accumulation of sentence does not offend the principle of equal justice and does not give rise to a justifiable sense of grievance. Ground 1 of the appeal has not been established.

49 By Ground 2 of the appeal, SS complains of disparity which is said to arise from the effective non-parole periods set for JC and for himself after the Judge found the same special circumstances. It was pointed out that in the case of SS the effective non-parole period of 5 years was approximately 71.43 per cent of the effective overall term of 7 years whereas in JC’s case, the effective non-parole period of 2 years 3 months was approximately 52.94 per cent of the effective overall sentence of 4 years 3 months. SS submitted that the disparity gave rise to a justifiable sense of grievance.

50 The Court’s attention was directed to what was said by Howie J (with whom Studdert and Latham JJ agreed) in Regina v Do [2005] NSWCCA 209 at [19]:

“ I maintain the view that I expressed in those passages that generally disparity does not arise simply from the fact that a finding of special circumstances was made in respect of one co-offender but not in respect of the other. I am prepared to accept that there may be a case where, all relevant facts and circumstances being equal, a finding of special circumstances in the case of one offender but not in the other may give rise to a justifiable sense of grievance. But in the present case not all things were equal because of the different findings made in respect of the criminality of the two offenders and the appropriate head sentences.”

51 The special circumstances found by the Judge in the case of each of the offenders were their youth and first time in custody. His Honour also found in the case of SS (ROS at 32):

“ The good progress he appears to have made in the institution he is currently in.”

and in the case of the applicant JC that he was “well on his way to rehabilitation.” (ROS 18/2/08 at 14)

52 As I have previously explained, the totality of their respective offending was not identical and all relevant circumstances were not equal. No justifiable sense of grievance arises which is to be ameliorated by the principle of parity. I do not consider that there was error on the part of the Judge. For this reason Ground 2 of the appeal fails.

Ground 3: The sentencing Judge erred in determining the effective non-parole period relative to the effective term of sentence, having found that special circumstances existed.

53 The main thrust of the complaint was that in respect of the sentences for which non-parole periods were set (charges 4 and 5), the proportion of the non-parole period (4 years) was 66.67 per cent of the term of 6 years. However, as a result of the partial accumulation of the sentences, the proportion of the effective overall term of the sentence (7 years) was approximately 71.43 per cent.

54 SS submitted it was doubtful that the Judge intended to provide for a variation of approximately 3.57 per cent from the statutory ratio. A further argument was that partial accumulation of sentence may itself warrant a finding of special circumstances which the Judge did not make reference to in his sentencing remarks.

55 The principal submission for the Crown was that the effective non-parole period of 5 years did not indicate that the Judge had failed to reflect an intention to ameliorate the minimum custodial term to be served by SS and was not itself manifestly excessive.

56 Section 44(2) of the Crimes (Sentencing Procedure) Act 1999 requires that the balance of the term of the sentence must not exceed one third of the non-parole period unless the court decides that there are special circumstances. Should his Honour have applied the statutory ratio, the effective overall non-parole period would have been 5 years 3 months. If the proportion of 66.67 per cent had been maintained in the adjustment of the overall sentence following the finding of special circumstances, the effective overall non-parole period would have been 4 years 8 months.

57 The factors identified by the Judge as constituting special circumstances were youth, first time in custody and the good progress made towards rehabilitation whilst in custody. SS was 15 years old at the time of offending and 17 years old on sentence. A variation of the statutory ratio by three months does not seem to me to adequately reflect his Honour’s findings. Although this Court is slow to intervene in the size of an adjustment to the statutory ratio which is essentially a matter within a Judge’s discretion, it makes little sense, in my respectful opinion, that the proportion of 66.67 per cent was not preserved in the overall sentence. Such an adjustment would result in a reduction in the overall non-parole period of about 4 months. The non-parole period must itself appropriately reflect the criminality involved in the offence which is the ultimate constraint in the sentencing discretion after special circumstances have been found: R v Simpson (2001) 53 NSWLR 701 per Spigelman CJ at [63]. An overall non-parole period of 4 years 8 months would not, in my view, offend against that principle.

58 Although an accumulation of sentence might constitute special circumstances: see, for example, R v Simpson; R v Close (1993) 31 NSWLR 743 to which the Judge made no mention in his sentencing remarks, his Honour was not obliged to find special circumstances for this reason.

59 I am, however, persuaded that the Judge overlooked the impact that the accumulation of sentences would have upon his finding of special circumstances and an adequate adjustment was not made. Ground 3 of the appeal has been established.

Ground 4: The sentencing Judge erred in failing to properly apply principles applicable in the sentencing of children.

60 SS complains that the Judge did not refer to the principles applicable in the sentencing of children in s 6 of the Children (Criminal Proceedings) Act which SS argued itself manifests error. SS drew attention to what was said by the Judge in his sentencing remarks as demonstrating his Honour’s misunderstanding of the relevant sentencing principles when he said (ROS at 30):

“I have to take into account the purpose of sentencing which is the punishment, the general deterrence, the protection of the community, to denounce the conduct, and to make the offender accountable for his actions, to promote rehabilitation and recognition of harm to the victims and the community and of course general deterrence looms in this case that we cannot, that society could not stand criminal gangs who are nihilists whose object was to rob convenience stores and liquor outlets and who are vulnerable to those things. Unless we want society to become an armed camp the justice system has to make sure that there is general deterrence and punishment and to protect the community. Citizens ought to be able to go about their business running little shops and things like that without having young hooligans coming in and almost killing them for small gains.”

61 Section 6 of the Children (Criminal Proceedings) Act contains a statement of principles relating to the exercise of criminal jurisdiction for young offenders. Section 6 was at the time of sentence as follows:

“ Section 6 Principles relating to exercise of functions under Act

A court, in exercising criminal jurisdiction with respect to children, shall have 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.”

62 It is important, however, to place his Honour’s remarks in context. His Honour had previously said (ROS at 28):

“Turning then to the matter of the guidelines and the law as I have been assisted by the parties. In the judgment of the now Chief Justice of Australia but then the Chief Justice of New South Wales, in the matter of R v CS and T . Even though the Chief Justice thought the sentences were lenient he did not propose in two of the incidences to change what Judge Shadbolt had decided…”

63 The Crown’s written submissions which were provided to the Judge during the sentencing proceedings drew attention to the principles contained in s 6 of the Children (Criminal Proceedings) Act as did the counsel for SS during oral submissions. R v C, S and T (Court of Criminal Appeal, 12 October 1989, unreported) to which the Judge referred was a case in which Gleeson CJ accepted a submission that:

“…in sentencing young people …the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed.”

64 The Judge did not refer to s 6 or its terms. A failure by a sentencing Judge to make some reference to the statement of principles in s 6 does not of itself constitute error: R v MHH [2001] NSWCCA 161; R v AD [2005] NSWCCA 208. Such a failure might indicate, however, that a proper consideration has not been given to the principles which apply to the sentencing of young offenders: see DB v The Queen (2006) 167 A Crim R 393 and it is always preferable that the statement of principles is referred to in sentencing remarks. The principles in s 6 are, however, well known and his Honour’s attention was directed to them by both parties in submissions on sentence. It is evident from the whole of his Honour’s sentencing remarks that he paid close attention to the applicant’s age at the time of the offending and to his prospects of rehabilitation. I am not persuaded that the Judge did not take into account the principles relating to the sentencing of young offenders when he came to sentence SS.

65 The relevance of the principles in s 6 depends upon the seriousness of the offence and the age and circumstances of the young offender. In the present case, charges 4 and 5 were offences punishable by imprisonment for 25 years and were each a “serious children’s indictable offence” as defined in s 3 of the Children (Criminal Proceedings) Act and were required to be dealt with at law. It has long been held that the principle that rehabilitation plays a more important role and general deterrence a lesser role is subject to the gravity of the crime: R v GDP (1991) 53 A Crim R 112, R v Bus (Court of Criminal Appeal, 3 November 1995, unreported); R v AEM [2002] NSWCCA 58. Considerations of specific and general deterrence, the protection of the community, retribution and the recognition of harm to the victim are not irrelevant when a young offender is to be sentenced.

66 SS was 15 years old when he committed the offences. His Honour was required to give more weight to the question of the applicant’s rehabilitation than in the case of an older offender. To be balanced against that factor was the objective seriousness of the offences for which SS stood for sentence. Charges 4 and 5 were grave offences in which both victims had been violently assaulted and seriously injured. One of the victims, Abdul Khan, was 73 years old. I do not consider that his Honour erred in the weight that he gave to general deterrence.

Ground 4 of the appeal has not been made out.

Re-Sentencing

67 As error has been identified, it is necessary to consider whether “some other sentence …is warranted in law and should have been passed”: s 6(3) of the Criminal Appeal Act 1912. SS has tendered an affidavit affirmed 2 December 2008 in which he deposed to the progress he has been making whilst in custody.

68 I propose to adjust the sentences so as to adequately reflect his Honour’s finding of special circumstances. The effective overall term of the sentence will remain at 7 years with the non-parole period being decreased to 3 years 8 months. No other lesser sentence is warranted in law.

69 I propose the following orders:

(1) Leave to appeal be granted.
(2) Quash the sentences imposed in the District Court on 27 July 2007 in respect of charges 4 and 5 being offences of robbery with wounding contrary to s 98(1) of the Crimes Act .
(3) The applicant SS in respect of charge 4 is convicted and sentenced to imprisonment consisting of a non-parole period of 3 years 8 months commencing on 28 December 2005 and expiring on 27 August 2009 with a balance of term of 2 years 4 months commencing on 28 August 2009 and expiring on 27 December 2011.
(4) The applicant SS in respect of charge 5 (including the offences on the Form 1) is convicted and sentenced to imprisonment consisting of a non-parole period of 3 years 8 months commencing on 28 December 2006 and expiring on 27 August 2010 with a balance of term of 2 years 4 months commencing on 28 August 2010 and expiring on 27 December 2012.

(5) The sentences imposed in the District Court on 27 July 2007 in respect of charges 1, 2 and 3 are confirmed.

(6) Confirm the Judge's order that the whole of the sentences be served as a juvenile offender.
The earliest date on which the applicant SS will be eligible for release to parole is 27 August 2010.

The Grounds of Appeal of JC

Ground 1: His Honour erred in his application of the parity principle leaving the applicant with a legitimate sense of grievance as to his sentence when compared to the sentence of his co-accused SS.

Ground 2: His Honour failed to reduce the sentence by his findings of mitigating factors pursuant to s 21A(3) of the Crimes (Sentencing Procedure) Act. The significant mitigating factors found being:

(a) Offence committed whilst acting under duress;

(b) Good character;

(c) Good prospects of rehabilitation; and

(d) Remorse.

70 It is convenient to consider Grounds 1 and 2 together as they overlap.

71 When he came to sentence the applicant JC, the Judge considered the issue of parity with the sentence imposed on SS. The Judge said (ROS at 13-14):

“The Crown in its submission has submitted that his friend’s [SS] sentence is one that I should be guided by on the matter of parity since they were both involved in the same two crimes. The defence, by Mr Carroll, said they can be distinguished. He says that [SS] did not offer assistance and that is true and I am taking that into account as well. Mr Carroll has pointed out that [SS] was younger by twelve months as I understand it. They’re both youths. However, [SS] was already under conditional liberty for offences of malicious damage and had, as I pointed out already, has a record whereas JC has not. And the Crown says taking all those things into account they balance each other out. There is also the question of parity which a co-offender receiving a different sentence to the other co-offender may harbour, as the Court of Criminal Appeal says, a justifiable sense of grievance.

…

However, I accept the Crown’s submission that to do otherwise than give similar sentences than that of [SS] would be wrong and I would fall into appealable error. And for the reasons that I read out from the Crown’s submission I think this correct, that the youth of [SS] and even though it is only twelve months.

Well I did give [SS] eight years in the head sentence. I took off twenty five per cent, which made it six years, for an early plea.
I believe that [JC] is entitled to another twenty five per cent for assistance, so that will make an eight year head sentence and fifty per cent off that makes it four years.”

72 JC contended that the Judge was unduly influenced by the fact that SS was 12 months younger than he. JC argued that his Honour failed to recognise that there were significant differences in the objective criminality of his offending and his subjective case to that of SS. Having the same starting points for the sentences, JC submitted, gave rise to a justifiable sense of grievance. A number of discrete matters were raised which were said to give rise to a difference between the co-offenders and called for in the case of JC a lesser notional starting point.

73 The first matter, JC argued, was that it was SS who caused the injuries to the victims and it was SS who returned to assault Abdul Khan. The level of violence of his co-offender, JC submitted, was significantly greater than his and as a consequence his culpability was less. JC complained that the Judge’s finding that the striking of Abdul Khan by JC with the baseball bat caused “him to have internal bleeding” was not supported by the report of Dr Taoum.

74 SS struck Kasim Khan to the head with a crowbar. The Judge found that JC struck Abdul Khan three times to the head with a baseball bat. After Abdul Khan threw a chair at SS, SS hit him twice in the head with the crowbar. Following the assault, Abdul Khan was treated initially at Hawkesbury Hospital and then transferred to Nepean Hospital where he was seen by Dr Taoum who noted that a CT scan of the patient’s head showed occipital bone fracture and a small cranial haemorrhage. During oral argument in this Court, JC pointed to the recording in Dr Taoum’s report that Abdul Khan described being hit by a “metal bar” and contended that the injuries sustained by the victim were not caused by him.

75 Little weight in my view can be given to the reliability of the history in the report as the victim had been struck heavily both by a crowbar and baseball bat and as the report reveals was initially unable to remember his date of birth. The cause of Mr Khan’s injuries could not be confined to the blows struck by JC.

76 Although there are cases where the culpability of participants in a joint criminal enterprise may be differentiated this was not such a case. A high level of violence was contemplated by each of the participants in the commission of the robbery. JC and SS were armed as six days earlier they had been repulsed by the store attendants who had a cricket bat, a brick and broom. The acts of violence committed by each of them were intended to eliminate any resistance that might be offered. It seems to me that in the present case where violence was contemplated and violence was used in the commission of the offence, JC’s culpability is not reduced because of the level of violence that he employed was not as high as that of his co-offender. It was also unnecessary for the Judge to determine which of the blows that struck the victim caused his injuries.

77 The second discrete matter of difference, JC contended, was the failure by the Judge to reduce his culpability by the finding of duress. This argument was supported, it was said, by the same notional starting point of the head sentence of SS. JC submitted that the level of duress was extreme as it was committed after he was awoken by Byrne at knife point who ordered him to commit the offence. Byrne gave him the baseball bat which he (JC) used in the robbery.

78 Section 21A(3)(d) of the Crimes (Sentencing Procedure) Act provides that where an offender is acting under duress a sentencing Judge is to take this into account as a mitigating factor. This was recognised by the Judge when he said (ROS at 14):

“I do take into account, and I am aware of, a mitigating factor; he was acting under duress. I am convinced that this was so, even if there was little evidence of it actually. I am convinced that [JC] acted believing he was acting under duress.”

79 His Honour had earlier in his remarks quoted extensively from those parts of the Juvenile Justice report in which duress had been raised by JC.

80 As has been recounted at [19], the applicant SS had also testified during his sentence proceedings of threats made to him and of his fears for his safety and the safety of his family. The Judge recited what SS had told the author of the Juvenile Justice report about these matters and the letter written by SS to him which included the passage quoted at [25] when he came to sentence SS. Although no specific finding was made of duress, there is no reason to think that the Judge did not take it into account.

81 The views expressed by the Judge in the passage quoted at [71] suggest that his Honour saw no reason to distinguish between the levels of pressure placed upon either of the applicants. The significance of duress as a mitigating factor was to my mind significantly reduced in the case of both co-offenders by what occurred when the robbery was carried out. Shortly after entering the store SS struck Kasim Khan with the crowbar and JC struck Abdul Khan with the baseball bat. Each of the victims was struck before any resistance was offered. In my opinion the applicants could not be considered to be acting under duress when they engaged in the violence which was the gravamen of their offending on 28 December 2005.

82 I neither consider that in the case of JC insufficient weight has been given by His Honour to the finding of duress nor has the notion of equal justice been violated by His Honour’s consideration of this factor of mitigation.

83 The main differences between the offenders were their age and prior record. SS committed the offences whilst subject to conditional liberty – a factor of aggravation: s 21A(2)(i) of the Crimes (Sentencing Procedure) Act. JC was a first offender – a factor of mitigation: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act. If all things had been equal, JC would have been entitled to a lesser sentence than his co-offender by reason of those factors. All things were not equal as those factors had to be balanced against the age difference and consequent immaturity between JC and SS. JC was almost 16 months older (and not 12 months as identified by the Judge) than SS. JC was 17 years old and SS 15 years old at the time of the offending.

84 JC argued that before age could be considered a factor to warrant a difference in sentence it had to be large and significant. The Court was referred to the age difference of 2 years 7 months in R v Rushby [1999] NSWCCA 104 which Barr J (with whom McInerney J agreed) considered at [26] to be a “very substantial disparity in chronological ages of the offenders and a corresponding disparity in their maturity.”

85 It is pointless to attempt to precisely identify what might be considered to be a sufficient gap in the chronological age of co-offenders to justify a difference in their sentences. It is a matter of evaluation for a sentencing Judge which will include considerations of the stage of development, level of maturity and education of the respective young offenders as well as their chronological ages.

86 The Judge was in the best position to make such an evaluation as he had seen and heard both young persons giving evidence before him. The Judge’s evaluation on this issue was essentially one of fact and akin to the exercise of a discretion. As such, the normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 400, applies. The applicant JC has not demonstrated, in my opinion, that the Judge’s evaluation was not open on the evidence, or that some wrong principle was applied, or irrelevant consideration taken into account (or relevant consideration overlooked).

87 In all the circumstances, it can neither be said that the applicant JC has a justifiable sense of grievance about the differences between the sentences nor that the Judge failed to give sufficient weight to his findings of mitigating factors.

88 Grounds 1 and 2 of the appeal have not been established.

Ground 3: His Honour erred in finding as a matter of aggravation that there were multiple victims.

89 The Crown concedes that the Judge erred when he found as a factor of aggravation “that there were multiple victims.” (ROS at 14). Whilst in the present case there were multiple victims and acts of criminality (including the Form 1 offences), the applicant JC was sentenced for each of them in accordance with the principle of totality. It was wrong to aggravate each offence on the basis that each involved multiple victims: R v Tadrosse (2005) 65 NSWLR 740; R v Janceski [2005] NSWCCA 288.

90 Ground 3 of the appeal has been made out.

Ground 4: His Honour erred in finding as a matter of aggravation that the offence was part of a planned or organised activity.

91 A factor of aggravation to be taken into account on sentence is that an offence was part of a planned or organised criminal activity: s 21A(2)(n) of the Crimes (Sentencing Procedure) Act.

92 The Judge said (ROS at 14):

“I am satisfied also that…it was planned, or at least if it was not planned it was an organised activity, if not by [JC], at least by the Insane Clown Posse gang in the form of Mr Byrne.”

93 JC contended that it was clear from his Honour’s reasoning that he had impermissibly imported a level of planning by Byrne to be a matter of aggravation. JC further submitted that there was no evidence that would permit a finding beyond reasonable doubt that the degree of planning undertaken by Byrne exceeded what would ordinarily be expected of an offence of this kind.

94 The fact that an offence was planned does not necessarily give rise to the aggravating factor in s 21A(2)(n): Fahs v Regina [2007] NSWCCA 26; R v Hewitt [2007] NSWCCA 355. For the planning of an offence to be taken into account as a factor of aggravation, the degree of planning must exceed what would ordinarily be expected of the kind of offence under consideration: R v Yildiz (2006) 160 A Crim R 218.

95 There was no evidence that JC had participated in the planning or organisation of the robbery on 28 December. All of the evidence pointed in the other direction. There was JC’s evidence of his participation in the offence because of the threats made to him.

96 The offence was undoubtedly planned by Byrne. The Crown, however, concedes that the evidence of the degree of planning of the robbery was not so much greater than that inherent in such an offence as to warrant the finding of an aggravating circumstance and error has been established.

97 During submissions, the Crown referred to a present lack of clarity as to whether planning under s 21A(2)(n) applies only where the offender has been involved in the planning of the offence, or whether it is sufficient where the offence itself was planned, to take planning into account as an aggravating factor. This Court, it was suggested, has adopted two different approaches to this issue which are as follows:

Simpson J in Legge v R [2007] NSWCCA 244 (with whom Spigelman CJ and Harrison J agreed) said at [34]:
“No doubt the offence was planned: but, on the applicant’s evidence, he was not involved in the planning and was not responsible for it. That evidence was not rejected. S 21A(2)(n) was not, in my opinion, intended to be used to aggravate an offence where the offender being sentenced was not involved in, or part of, the planning and organisation.”

In DPP v Cornwall [2007] NSWCCA 359 Latham J (with whom Basten JA and Rothman J agreed) said at [56]:
“The respondent’s claim that he was not involved to any extent in the planning of the offence is of limited relevance. Section 21A(2)(n) fixes upon this characteristic of the offence, not the degree to which an individual offender contributes to the planning.”

98 Given the Crown’s concession, it is unnecessary for present purposes to attempt to resolve the apparent difference in these statements.

99 In any event, it seems to me that where, as in the present case, duress is raised, there is a logical difficulty in giving weight on the one hand to a finding as an aggravating factor that the offence was planned even though the offender did not take any part in its planning or organisation and on the other hand giving weight to a finding as a mitigating factor that the offender’s participation in the offence stemmed from pressure and duress.

100 Ground 4 of the appeal has been made out.

Ground 5: His Honour erred in rejecting the circumstances of the applicant’s drug addiction as a matter of mitigation.

101 The Crown concedes that the Judge erred when he said (ROS at 8):

“The consumption of alcohol or drugs is not an excuse for this behaviour, nor should it be an excuse for this kind of behaviour.”

102 The Judge was stating the general rule that the fact of drug addiction is not a mitigating factor: R v Henry (1999) 46 NSWLR 346. The occurrence of a drug addiction at a very young age has, however, been recognised as an exception to the general rule: R v Henry per Wood CJ at CL at [273]. As was said by Hulme J in R v Todorovic [2008] NSWCCA 49 at [58]:

“In R v Henry (1999) NSWLR 346 this Court considered at length and firmly rejected the proposition that, in general, addiction to drugs should be regarded as a mitigating factor. In doing so the Court recognised that there would be cases where the general rule would not apply, for example, where the addiction was the result of youth …”

103 JC told his Honour during his testimony that he commenced smoking cannabis on a daily basis when he was 11 years old. Byrne had supplied him with prohibited drugs which included methylamphetamine, ‘LSD’ and cannabis when he was 16 years old. This evidence was not rejected by his Honour. In these circumstances JC’s drug addiction could be regarded as a matter of mitigation.

104 Ground 5 of the appeal has been made out.

Re-Sentencing

105 The errors which have been established give rise to the application of s 6(3) of the Criminal Appeal Act. An affidavit of JC’s solicitor affirmed 5 December 2008 has been tendered which annexes certificates which speak of JC’s achievements and a letter from JC in which he expresses his remorse and intention not to re-offend. JC also discloses that he has the continuing support of his partner and their first child was born last October.

106 Nevertheless, I do not think that the errors made by the Judge impacted upon the sentences that were imposed. The effective overall term was 4 years 3 with an effective overall non-parole period of 2 years 3 months. In my opinion, any lesser sentence would not adequately reflect the criminality of JC’s offending. I am not of the view that any lesser sentence is warranted in law and should have been passed.

107 I propose the following orders:

(1) Leave to appeal be granted.

(2) Appeal dismissed.

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