TA v The King - [2023] NSWCCA 27

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: TA v R [2023] NSWCCA 27
Hearing dates: 07 December 2022
Date of orders: 01 March 2023
Decision date: 01 March 2023
Before: Leeming JA at [1]
Adamson JA at [2]
Garling J at [3]
Decision:
(1) Grant leave to appeal.
(2) Appeal dismissed.

Catchwords:
SENTENCING — appeal against sentence — whether sentencing judge failed to make findings as to the applicant’s reduced moral culpability — whether sentencing judge failed to apply correct principles concerning the sentencing of a juvenile —co-offenders — disparity between sentences — co-offenders sentenced by same sentencing judge — appeal dismissed

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Chamon v R [2020] NSWCCA 112
Dellow v R [2020] NSWCCA 301
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR; [2010] NSWCCA 194
DS v R [2014] NSWCCA 267
Egan v R [2017] NSWCCA 206
Lloyd v R [2022] NSWCCA 18
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
Prince v R [2020] NSWCCA 268
Ussher v R [2016] NSWCCA 276
Youkhana v R [2011] NSWCCA 37

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: TA (Applicant)
The Crown (Respondent)
Representation:
Counsel:
S Howell (Applicant)
S Traynor (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/367252
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

Campbelltown District Court

Jurisdiction:

Criminal

Date of Decision:

29 September 2021

Before:

English DCJ

File Number(s):

2020/367252

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, TA, a juvenile, and her co-offender engaged jointly in a series of crimes against three victims. TA pleaded guilty to an offence contrary to s 86(3) of the Crimes Act 1900 of specially aggravated detain for advantage and a further offence of aggravated detain for advantage contrary to s 86(2)(a) of the Crimes Act 1900. The co-offender pleaded guilty to the same offences.

On 29 September 2021, English DCJ sentenced both the applicant and her co-offender at the same time. The Judge sentenced the applicant to a total effective sentence of 4 years’ imprisonment with a non-parole period of 2 years. The Judge sentenced her co-offender to a total effective sentence of 3 years and 2 months’ imprisonment with a non-parole period of 1 year and 8 months.

The applicant appealed to the Court of Criminal Appeal against the sentence, advancing three grounds of appeal. First, that the sentencing Judge erred by failing to make findings as to whether the applicant’s childhood deprivation and mental disorders reduced her moral culpability. Second, that the sentencing Judge erred in the approach taken to principles concerning the sentencing of a child. Third, that the disparity between the total effective sentences imposed on the applicant and her co-offender is such as to engender a justifiable sense of grievance.

Held (granting leave to appeal but dismissing the appeal) (per Garling J, Leeming JA and Adamson JA agreeing):

As to ground 1:

The remarks of the sentencing Judge should be read as a whole. [81]
An offender’s deprived background will not necessarily have the same mitigatory relevance for all purposes of punishment. [83]

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 cited.

If the sentencing Judge properly addresses the relevant purposes of punishment, then it is not essential for the Judge to expressly use the phrase “moral culpability”, where the Judge has substantively addressed the relevant factors. [84]

Egan v R [2017] NSWCCA 206; Prince v R [2020] NSWCCA 268 cited.

As to ground 2:

If the sentencing judge properly makes findings unfavourable to the juvenile offender on the question of rehabilitation, then the weight to be given to considerations of rehabilitation will be necessarily less than in other cases of juvenile offenders. [98]-[99]

As to ground 3:

To determine whether a discrepancy between a sentence imposed on an offender and that imposed on a co-offender will be justified so as not to give rise to a justifiable sense of grievance, regard will be given to a multitude of factors including the different roles played by each co-offender in perpetrating the offending conduct, the age and maturity of each co-offender and the upbringings and personalities of each co-offender. [115]; [119]-[120]

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46; DS v R [2014] NSWCCA 267 applied.

Judgment

LEEMING JA: I agree with Garling J.
ADAMSON JA: I agree with Garling J.
GARLING J: TA, who was 16½ years old at the time of offending, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against a sentence imposed upon her by English DCJ in the District Court at Campbelltown on 29 September 2021.
The applicant was committed for sentence after appearing in the Children’s Court at Campbelltown, when she indicated a plea of guilty to an offence contrary to s 86(3) of the Crimes Act 1900 of specially aggravated detain for advantage (“Offence 1”) and a further offence of aggravated detain for advantage contrary to s 86(2)(a) of the Crimes Act (“Offence 2”). Offence 1 is classified as a serious children’s indictable offence.
With respect to Offence 1, the applicant asked the Court to take into account three further offences on a Form 1. These three further offences were an assault occasioning actual bodily harm in company, damaging property in company and an aggravated take and detain of a person in company with an intent to obtain an advantage.
With respect to Offence 2, the applicant asked the Court to take into account two further offences on a Form 1. These two further offences were assault occasioning actual bodily harm in company and robbery in company.
With respect to Offence 1, which carried a maximum sentence of 25 years’ imprisonment, the applicant was sentenced to a non-parole period of 2 years commencing on 28 September 2021, and an additional term of a further 2 years which would expire on 27 September 2025.
With respect to Offence 2, which carried a maximum sentence of 20 years’ imprisonment, the applicant was sentenced to a fixed term of imprisonment of 2 years to date from 28 September 2021 and expire on 27 September 2023.
The total effective sentence was one of a 2 year non-parole period expiring on 27 September 2023, and a further term of 2 years. The applicant was ordered to serve her term of imprisonment as a juvenile offender.

Co-offender

At the time the applicant was sentenced, a co‑offender who I will refrain from naming to avoid inadvertently identifying the applicant, was also sentenced. The co‑offender was 19 years old at the time of the offending. She had entered pleas of guilty to the same offences, as the applicant had done. With respect to Offence 1, the co‑offender was sentenced to a term of imprisonment of 3 years commencing 7 March 2021, with a non-parole period of 1 year and 6 months expiring on 6 September 2022. With respect to Offence 2, she was sentenced to a fixed term of 1 year and 6 months’ imprisonment commencing on 7 January 2021.
The total effective head sentence for the co‑offender was, accordingly, 3 years and 2 months with a total effective non-parole period of 1 year and 8 months.
The co-offender also asked for the same offences to be taken into account on a Form 1.

Agreed Facts

It will be obvious from these introductory remarks that the applicant and her co‑offender engaged jointly in a series of crimes. According to the Agreed Facts put before the Judge, the offences occurred on 23 December 2020, commencing in the early hours of the morning.
The three victims, who were respectively aged 20, 15 and 14, were driving around Campbelltown together with a fourth person who was a friend of theirs. A little after 1am, having parked their car in a carpark near Koshigaya Park, they walked into the park. After a few minutes, they were approached by the applicant and the co-offender who were each holding a can of mixed drink. There was an insignificant verbal interchange between the applicant and one of the victims. This was captured on CCTV footage.
The applicant initiated physical contact with one of the victims by punching her to the head, pulling her to the ground and continuing to punch her. She was asked to stop. When one of the other victims attempted to intervene, the co‑accused prevented her from doing so by pushing the others away. Whilst the applicant was assaulting the victim, the co-offender stood close by. The assault was a vicious one involving punches to the head and body and the applicant kicking the victim whilst she was on the ground. One of the other victims tried to wave down a passing car and pulled out her phone. The co‑offender approached her and threatened her by saying “you’d better not be calling the police”.
Meanwhile, the victim who had been assaulted by the applicant stood up and tried to walk towards the carpark where the vehicle in which she had arrived was parked. The applicant continued the assault, grabbing her hair at the back of her head and swinging her to the ground. This fight continued. The applicant continued to punch the victim’s head and body and at one stage, threw her body back and forth on the grass and kicked her again.
Eventually, the co-offender pulled the applicant away from the victim saying, “she has had enough, stop”. However, the applicant continued to assault the victim who was still on the ground. The co-offender joined in, also delivering a number of punches and kicks to the victim’s head and body. When one of the other victims attempted to dissuade the applicant and the co-offender from continuing, that individual was approached by the applicant and the co-offender and was physically assaulted.
The original victim, assisted by one of her friends, began walking back towards the carpark. The applicant observed this and returned to this victim, pulled her down onto the carpark concrete by her hair and again punched and kicked her in the head. She picked her up off the ground by her hair on several occasions and threw her down onto the concrete. She took hold of the victim’s mobile phone and then threw it onto the footpath, smashing the screen. She also broke and removed the necklace which the victim was wearing.
It was then that the sequence of the applicant’s conduct the subject of Offence 1 and Offence 2 commenced. The original victim was lying on the ground in a foetal position. The applicant, nevertheless, continued to kick her.
The applicant then lifted the victim up off the ground by her hair and dragged her towards the car. The co-offender followed closely. The three victims and their friend got into the car and locked the doors. At that point the co-offender, by threats, forced the victim to unlock the door. The victim was then assaulted as was another victim.
The co-offender ordered one of the victims out of the car and into the back seat so that she could drive. The applicant sat in the back seat, forcing two of the original four occupants of the vehicle into the boot-space. The co-offender drove the victim’s car out of the carpark. She was driving erratically. She did not stop at a red traffic light. The co-offender then threatened the original victim by saying “You’d better get us money, or I’ll crash the car and kill us all”. At that time, the applicant also threatened to kill each of the victims if they told anybody about what had happened to them. This concluded the sequence of the applicant’s conduct the subject of Offence 1 and Offence 2.
The original victim called her sister and asked her to transfer $500 into her account. That transfer was confirmed by text message. The co-offender drove the vehicle to a Commonwealth Bank ATM outside Campbelltown Mall. The applicant walked the victim to the ATM and stood behind her as she withdrew the money and gave it to the applicant.
The co-offender then drove the vehicle to a further location so as to obtain more money from the victim. When they arrived at the location, the applicant told the co-offender to remain in the vehicle while she went with one of the victims into the McDonald’s outlet. However, they were unable to retrieve any money because the victim’s cousin was not working there at the time. The vehicle was then driven to a residential address of one of the victims who, having gotten out of the car and entered a rear yard of the property, did not return. The victims called out for help and the applicant and co-offender ran away on foot.
About four days later, the applicant was arrested whilst she was sleeping in her bedroom at her grandparents’ house. She was charged.
A few days later, the co-offender surrendered herself to the police and was charged and taken into custody.

Post-offence conduct

Six months after the offending conduct, whilst the applicant was on bail, the sister of one of the victims contacted the applicant on Instagram. During an exchange, the applicant sent some threatening and distasteful messages to her.
For this conduct, on 18 June 2021 the applicant was charged with the offence of using a carriage service to menace, harass or offend. On 12 July 2021, after a plea of guilty, she was sentenced to an 8 month supervised good behaviour bond.

Sentence Proceedings

English DCJ heard the sentencing proceedings of each of the applicant and the co-offender at the same time.
The proceedings occupied part of two separate days, being Friday 24 September 2021 and the following Wednesday. At the end of the submissions on the second day, the Judge took a short adjournment and then returned to Court and orally pronounced sentence for both the applicant and her co-offender, giving ex tempore reasons for those sentences.

Subjective Material

The Crown included in material tendered on sentence a substantial report prepared by two officers of Youth Justice about the applicant.
This report was based on interviews conducted with the applicant, her parents, other individuals in the education system capable of providing information about the applicant, and a series of documents.
The report reveals that the applicant, whilst living with her parents and two younger sisters, had a disrupted family upbringing. In the four years prior to the offending, the Department of Communities and Justice had become involved in the applicant’s family and had received 30 reports of the children being exposed to risk of harm including risks of psychological harm, physical abuse, sexual acts of exploitation, serious self-harming, risk taking behaviour and significant neglect. Physical abuse was commonplace. The applicant and her sisters were placed with their maternal grandparents for some time. The applicant later moved to Queensland to live with her aunties. This living arrangement was controversial because her parents insisted that it was not an agreed upon arrangement and listed the applicant as a missing person.
During that placement, the applicant was provided with cigarettes to smoke and quantities of alcohol which, from time to time, would cause her distress. On one occasion she had committed an act of self-harm which resulted in her being taken to hospital.
The applicant returned to live in Sydney with her parents but ran away to live with her boyfriend during which time it was reported that she became entrenched with negative peers, substance abuse and offending behaviour.
The officers expressed this view:

“From discussions with [the applicant] and her parents, it is assessed that [the applicant’s] unresolved developmental trauma (as a result of ongoing Domestic Violence) coupled with her exposure to violence in the family home from a young age, and disrupted attachments from her primary caregivers (namely her father) has been a criminogenic risk factor for her …”

Ultimately, the applicant left school after completing Year 10, although her schooling had been disrupted and, as a consequence, she attended a number of different high schools. She was given a number of suspensions for physical altercations with other students, particularly in Year 10 when such events happened quite frequently.
Whilst at school, after she turned 14, the applicant engaged in part-time work at various fast-food outlets.
The authors of the report concluded that the applicant’s poor peer associations had greatly influenced her involvement in offending behaviour and in her displays of violence in social settings. The authors were of the opinion that the applicant appeared to have developed some insight into the significant impact of her peer association at the time of the offences, and that she had taken appropriate responsibility for her own actions.
It is apparent that the applicant commenced drinking alcohol when she was approximately 14 years of age and commenced smoking cannabis from 15 years of age. Her alcohol and drug use reportedly significantly increased when she was 16 years of age, by which time she was apparently drinking a few times a week with a reported usage of between 12 and 24 alcoholic beverages at a time and smoking cannabis daily.
The authors of the report relied upon, and took into account, the detail contained in a report of Ms Ivanka Manoski, a forensic psychologist, of 16 August 2021, which was put before the Court by the applicant.
Ms Manoski recorded in her report that the applicant at the age of 16 had been sexually assaulted by a “boy” whom she trusted. The applicant reported a significant emotional toll on her and offence to her created by the fact that she had trusted the boy and he had let her down. She reported ongoing anger as a consequence of the assault. Having informed her parents, she made the decision not to report the assault to the police.
Ms Manoski recorded a history of substance abuse consistent with that recorded in the Youth Justice report but noted that the applicant described herself often becoming angry when under the influence of alcohol and that it diminished her inhibitions resulting in a high likelihood of engagement in aggression and violence. She reported to Ms Manoski that she used alcohol and cannabis as a coping mechanism. Boredom and idle time were factors that led her to use of alcohol and cannabis.
Ms Manoski recorded this opinion:

“Further, violence and expressions of aggression were normalised in [the applicant’s] family home, as a child witnessing her father perpetrating domestic violence and experiencing physical abuse herself. She developed cognitive distortions and pro-violence attitudes that allowed her to engage in aggressive behaviour from a young age. She tended to gravitate towards peers who also supported the use of violence and engaged in similar behaviour to [her], further normalising the use of violence as a way to express anger and negative emotions as well as to deal with conflict and interpersonal difficulties.”

Ms Manoski, having considered all the relevant factors, expressed these conclusions:

39. Collectively, her formative years have had a significant impact on [the applicant’s] functioning and development. From an exceedingly early age, [the applicant’s] life has lacked stability, safety, nurturance, and she often felt unsafe and fearful during her formative years. Adding to her difficulties, [the applicant] experienced bullying, including physical hitting, over a four-year period when she was in primary school. Her already traumatic history was compounded by her experience of a sexual assault at the age of 16 years. Her exposure to domestic violence and her experience of physical abuse at home normalised the engagement in violence and the use of aggression to resolve difficulties as well as to express negative emotionality. She commenced utilizing violence as a form of coping and emotional expression from approximately the age of 10 years.

40. [The applicant’s] mental health and functioning have been significantly impacted by her traumatic experiences, experiencing symptoms of depression with anxious distress as well as often engaging in self-injurious behaviour and the use of alcohol and cannabis as coping mechanisms and the absence of more healthy coping mechanisms being role modelled or taught to [the applicant]. She learned from her mother not to seek assistance and to suppress negative emotions, whilst her father’s role modelling normalised the use of violence to resolve conflict and express anger. Her difficulties to cope, her mental health, the normalization of violence over her life, peer influence, the use of alcohol and her distorted thinking in relation to the situation she found herself in with the victim, culminated in [the applicant engaging] in the index offending.”

Ms Manoski noted that the applicant would have met criteria for both major depressive disorder and alcohol abuse disorder at the time of the offending. She did not present as cognitively impaired, but rather impressed as reasonably intelligent and articulate.
As well, the applicant put before the Court a report dated 16 September 2021, from a psychologist – Mr Sam Albassit. Mr Albassit obtained a similar history to those contained in the other reports. However, following a semi-structured interview guide, he concluded that the symptomatology presented was consistent with a “dual borderline personality disorder and substance dependence”. He assessed that she fell within the extremely severe range for sub-groupings of depression, anxiety and stress which opinion he formed on the back of the DASS21 questionnaire.
Mr Albassit expressed this conclusion:

“In my opinion, there is a direct and significant correlation between [the applicant’s] offending behaviour and her ongoing and chronic psychiatric/psychological condition. Her feelings of worthlessness and low self‑esteem which stem from the childhood abandonment, and ongoing displacement, resulted in experiencing psychological trauma. Those feelings are exacerbated by the reckless lifestyle she led and the continued disconnection from society. She self-medicated with illicit substance use from an early age …”

Mr Albassit noted that the applicant had not received any psychiatric and psychological treatment of any real significance which would have been capable of addressing her chronic mental health conditions. He expressed the view, consistently with that of Ms Manoski, that ongoing and intensive psychiatric and psychological therapy would improve the applicant’s ability to make sound judgments and enable her to develop correct strategies dealing with decision-making and impulse control.

Sentencing Remarks

As earlier indicated, her Honour delivered her remarks ex tempore dealing with both the applicant and her co-offender.
Her Honour comprehensively reviewed the applicant’s background, the expert reports with which she had been provided and, as well, the evidence given to the Court by the applicant’s mother. Her Honour discounted the weight to be given to the evidence from the applicant’s mother. Her Honour concluded that the applicant’s mother was clearly attempting to paint her daughter in the best light possible and was minimising the seriousness of the applicant’s continuing aggression and offending behaviour.
Her Honour noted that at the time the applicant committed the offences, she had no prior criminal antecedents. However, her Honour noted that whilst the applicant was on bail, she committed the further offence of using a carriage service to menace, harass or offend. Her Honour noted that this conduct, which has been described above, demonstrated the applicant’s propensity to continue having distorted thoughts and to threaten to act upon them with absolutely no regard for the recipient of the messages. Her Honour noted that the applicant had gloated, in the messages, that her co-offender was in custody, and she was not. Her Honour concluded that this conduct showed a complete lack of insight on the applicant’s part as to the consequences of her offending behaviour.
Her Honour also noted that there was evidence before her that the applicant had engaged in other acts of aggression and had breached a condition of her bail, although her Honour noted that no action was taken against her in relation to those matters.
Her Honour concluded that the offences committed by the applicant and her co‑offender were objectively serious examples of such offending.
Her Honour noted that both the offenders were young, the applicant more so than her co-offender, although she was the instigator of the violent offending. The Judge then said this:

“A person, no matter what their age, is able to choose to obey the law or choose to disobey it. In the case of youth, the law ameliorates the harshest punishment and takes into account immaturity, less well-developed executive functioning that occurs in a physically undeveloped mind, hence, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, where emotional immaturity or a young person’s less than fully developed capacity to control impulsive behaviour or the impacts of childhood deprivation contribute to the offending, those matters may be seen as mitigating culpability and, thus, reduce what is suggested by considerations of retribution.
It is acknowledged that often a person does not mature until they are well into their 20s, particularly in the case of young men. Hence, youth may be a material factor in sentencing young offenders, even 20-year-olds, for the most serious of crimes. Care needs to be taken not to overlook an offender’s youth on the basis that an offender has engaged in very adult behaviour or acted as an adult in the commission of a serious criminal offence.”

Her Honour noted that the criminal behaviour did not involve any real planning or any other “significant indicia” of mature decision making. She noted that the offences were obviously opportunistic and spontaneous, albeit very violent. She noted that no weapons were used, and that the victims were not restrained other than within the confines of the motor vehicle.
Her Honour formed this view:

“The circumstances of this offending, I find, [suggest], rather than emotional immaturity, that it was a less than fully-developed capacity to control impulses which were likely to have been the main contributing factor. Regard must be had to the mental state of these two young women as a result of their extremely dysfunctional upbringing which has clearly acted upon them. Sadly, for the District Court judges who sit in western Sydney, alcohol-fuelled violence, even amongst young women is rife, often as a result of dysfunctional upbringings, something which the law recognises impacts significantly upon all offenders, not just the young.”

Her Honour referred to the submissions which had been made to her, including a submission received from counsel for the co-offender with respect to the positions of each of the applicant and co-offender in the offending. Her Honour said:

“This was, of course, a joint criminal enterprise and the roles of the offenders can be distinguished. Whilst the young person was the instigator, clearly this offender involved herself in perpetrating acts of violence, driving in a manner designed to frighten the victims, then continuing to threaten them during the period of detention.”

After dealing with the submissions and the circumstances of the co-offender, her Honour said this in reference to the co-offender:

“Those head sentences taken into account the principles of sentencing of young offenders, the role of this offender, her dysfunctional upbringing and her mental health issues which contributed in some small part to the commission of the offences.”

Her Honour concluded, notwithstanding the submissions that had been made to her on behalf of the co-offender, that there was a need for a term of fulltime custody.
Her Honour then came to consider the position of the applicant. She initially dealt with the submission made that the appropriate course was to defer the sentencing of the applicant pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 for a period of 12 months or so. Her Honour refused to so adjourn the proceedings. That conclusion is not the subject of appeal.
In dealing with the applicant’s position, her Honour found that the offending was of a high order, that it was vicious and brutal and uncalled for. She concluded that the matter was one which fell just below the mid-range of offences of a like nature. She found that the role of the applicant was objectively more serious than that of her co-offender, despite her being the younger of the two.
Her Honour considered the submissions put forward on behalf of the applicant including, in particular, the making of some order to punish the applicant other than by way of full-time detention. Her Honour concluded that she should be dealt with according to law.
Her Honour accepted that the applicant was entitled to a discount of 25% for entering pleas to the offences at the earliest opportunity. She noted a concession made on behalf of the applicant that the applicant could not be found to be truly remorseful given her inability to demonstrate any empathy for the victims. Her Honour found that her prospects for rehabilitation remained extremely guarded and that the applicant was highly likely to re-offend.
Her Honour then said this:

“Whilst I am mindful of the authorities which provide that the youth of an offender lessens the need for greater weight to be given to general deterrence and that considerations of rehabilitation should be paramount, I find that in the instance of this young woman and the evidence as to her maturity and, in particular, the nature of the offences committed by her, that general deterrence still has role to play but more importantly, so too does specific deterrence, given the seriousness of the offending, her propensity towards aggression and violence in her post-offending conduct. Protection of the community, as I have said, looms large.”

Her Honour made a finding of special circumstances based upon the need for a lengthy period of supervision on parole to minimise the risk of relapse and re‑offending and to enhance the applicant’s prospects for the future. Her Honour took into account that her custody had been in the past, and would be in the future, impacted by restrictions relating to the adverse effects of COVID‑19. Her Honour considered, having regard to the provisions of s 19 of the Children (Criminal Proceedings) Act 1987, that she should direct that any term of custody should be served by the applicant as a juvenile offender.
Her Honour then considered questions of parity, and in so doing noted that the applicant was the instigator of the offences and the perpetrator of a greater level of violence than the co-offender. Her Honour then imposed sentence.

Grounds of Appeal

If leave is granted, the applicant seeks to raise three grounds of appeal, namely:

the sentencing Judge erred by failing to make findings as to whether the applicant’s childhood deprivation and mental disorders reduced her moral culpability;

the sentencing Judge erred in the approach taken to principles concerning the sentencing of a child; and

the disparity between the total effective sentences imposed on the applicant and her co-offender is such as to engender a justifiable sense of grievance.

Ground 1

The applicant’s submissions drew attention to the evidentiary material which was before the sentencing Judge. I have summarised that material earlier.
The applicant submitted that there were factors capable of affecting the applicant’s moral culpability for her offending. The applicant submitted that the expert evidence made plain that the applicant’s childhood exposure to violence explained her recourse to violence such that her moral culpability for her inability to control an impulse was liable to be substantially reduced. The applicant drew attention to the decision in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44].
The applicant submitted that her Honour failed to make findings as to whether the applicant’s childhood deprivation and mental disorders reduced her moral culpability. The applicant’s submissions drew attention to six matters which, it was submitted, supported the conclusion that her Honour did not properly take those factors into account.
First, the applicant submitted that there was no express reference to the principles in either the decision of Bugmy, or Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].
Secondly, the applicant submitted that the sentencing remarks did not include any specific discussion of the applicant’s moral culpability for the offences and whether or not it was reduced by reason of her childhood deprivation or mental disorders. The applicant submitted that whilst her Honour referred to the capacity of childhood deprivation to mitigate culpability, she made no express finding to that effect.
Thirdly, the applicant submits that the sentencing Judge did not refer to the actual content of the expert evidence tendered in the applicant’s case. In particular, the applicant submits that there was no reference to the specific conclusions in the expert evidence of a link between that deprivation and the applicant’s offending.
Fourthly, the applicant submitted that her Honour did not find that the need for general deterrence was moderated in the applicant’s case. The applicant noted that such a finding had been specifically made in respect of the co-offender.
Fifthly, the applicant noted that her Honour did not refer to the applicant’s time in custody being more onerous because of her mental disorders and did not mention this aspect of the De La Rosa principles.
Finally, the applicant drew attention to remarks of the Judge with respect to adverse features of the applicant’s post-offence conduct and its comparison to “normal conduct”. The applicant submitted that these remarks, together with others in the judgment, were indicative of the Judge not properly taking into account the impact of the various subjective factors of the applicant on her moral culpability.
The Crown submitted that this Court in approaching this ground of appeal ought keep in mind that the question which needs to be addressed is not whether the phrase “moral culpability” was specifically mentioned or not, because the question is one of substance and not form: Dellow v R [2020] NSWCCA 301 at [45]; Lloyd v R [2022] NSWCCA 18 at [33]. Shortly put, the Crown submitted that one had to undertake an analysis of the circumstances of the case and the entirety of the Judge’s reasons taking into consideration that the reasons were delivered orally shortly after the conclusion of the sentencing submissions of the applicant.
The Crown submitted that, having regard to the overlap between the applicant’s history of a deprived childhood (including exposure to physical abuse and violence) and the mental illnesses identified by the experts together with her intoxication, the Judge approached her exercise of the sentencing discretion correctly because she had regard to the entirety of the applicant’s background and upbringing. Her Honour found that the main contributing factor to the offending was a less than fully developed capacity to control impulses. Such a finding was related to the applicant’s mental state – which was at least partly a result of her extremely dysfunctional upbringing acting upon her. Her Honour found that the childhood deprivation and circumstances, including physical abuse and exposure to significant domestic violence, resulted in the applicant’s propensity to violence which was continuing. Her Honour then took into account the need to protect the community in circumstances where the applicant’s tendency to violence was not remedied by the time of sentencing.
The other matter to which the Crown drew attention was that the offending occurred when the applicant was 16 years and 6 months old and although a juvenile, she was at the upper end of the age range of juveniles being dealt with.
Ultimately the Crown submitted that the applicant’s traumatic background, which was linked to the offending, was a factor appropriately addressed by the Judge and taken into account.
In coming to resolve this ground, it is clear that the sentencing remarks must be read as a whole, and due allowance paid to the fact that they were delivered shortly after submissions were concluded in circumstances where the Court had the benefit of written submissions from both counsel for the applicant and the Crown.
Those submissions drew attention thoroughly to Bugmy and like decisions. As well, her Honour was referred, in those submissions and in oral submissions, to the principles of sentencing for young offenders. She clearly had those in mind.
I also bear in mind the fact that there was no substantial disagreement between the Crown and the applicant on the issue of her early childhood deprivation, her difficult upbringing which included unstable family circumstances, being the subject of physical abuse and being exposed to significant domestic violence and physical abuse regularly. Those matters were accepted by the Crown and by the Judge. The real issue which the Judge confronted in taking those matters into account was that enunciated in Bugmy (at [44]), namely that an offender’s deprived background will not necessarily have the same mitigatory relevance for all of the purposes of punishment. As was said:

“An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability, if the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

Conflicting purposes of punishment are the matters which are of substance and need be addressed where relevant. If they are properly addressed, then it is not essential for a sentencing Judge to expressly use the phrase “moral culpability”: Egan v R [2017] NSWCCA 206 at [37]; Prince v R [2020] NSWCCA 268 at [47].
I am not persuaded that the applicant has made out this ground. Her background was fully referred to in the remarks on sentence. It was largely uncontroversial. Her Honour considered, correctly, that it was one of the factors to be balanced with other sentencing considerations including protection of the community.
In my view the absence of any specific reference to the phrase “moral culpability” does not diminish the comprehensive nature of the remarks and the fact that her Honour considered all relevant matters going to sentence.
I would not uphold this ground.

Ground 2

Ground 2 seeks to argue that the sentencing Judge erred in the approach taken to principles concerning the sentencing of a juvenile. This rather broadly expressed ground was refined in oral submissions to, substantially, two matters, namely that the remarks on sentence of her Honour suggested that she did not moderate the effect of general deterrence in her sentence but, rather, gave it full weight as though the applicant was being sentenced as an adult. Further, although her Honour noted as a matter of general principle in sentencing juvenile offenders that “considerations of rehabilitation should be paramount”, she did not give effect to that principle.
The context in which this submission was made was that the facts surrounding the applicant’s offending indicated that her youth and immaturity were significant contributing factors to that offending and that accordingly, those matters ought to have been properly reflected if the principles concerning the sentencing of a juvenile had been taken into account.

In summary, it was put by the applicant that:

“… for her Honour to not moderate general deterrence or give paramount consideration to the applicant’s rehabilitation, to emphasise community protection and not to reduce the applicant’s moral culpability on account of her youth, … constitutes error in her approach to the principles concerning the sentencing of a child in this case.”

The Crown submitted that the Judge clearly took into account that the applicant was a juvenile at the time of the offences and that her Honour made specific reference to the principles regarding the sentencing of juveniles as set out in s 6 of the Children (Criminal Proceedings) Act.
With respect to the youth and maturity of the applicant, the Crown noted that her Honour found that the applicant was not a naive young girl but rather, on the evidence, mature and of sound intelligence, much more mature than her biological age and, clearly, someone who “knows her own mind and acts upon it”.
This, the Crown submits, was a conclusion open to her Honour and which the Crown noted is not suggested to be erroneous by the applicant.
The Crown also noted as important facts that the applicant was a person who, having been educated to Year 10, decided to leave home at the age of 16, move interstate with members of her family, rent a room on her own and hold a job down as a casual employee at fast-food outlets. The Judge had explicit regard to all of these matters.
The Crown submits that in regard to the nature of the offending, it was open to her Honour to conclude, as she did conclude, that having regard to the manner in which she behaved, the applicant was more mature than her biological age.
Finally, the Crown submits that when the reasons are read as a whole, what is apparent is that there is no error in the approach of the sentencing Judge or a misapplication of principle. Rather, the Crown submits that her Honour exercised her discretion not to make a finding that the applicant’s youth and disadvantaged upbringing reduced her moral culpability. Given the serious nature of the offending the Crown submits that the sentence was properly open to the Judge.
In my view, the applicant has failed to establish this ground. In the course of her sentencing remarks, her Honour correctly enunciated the principles with respect to youth, disadvantaged upbringing, general deterrence, community protection and rehabilitation.
Her Honour made findings, which are not challenged, that were distinctly unfavourable to the applicant on the question of rehabilitation. She found that, as the applicant’s counsel conceded, the applicant could not be found to be truly remorseful and had not demonstrated any empathy for the victims. The Judge found that the circumstances of the offence, the applicant’s background and her subsequent offending impacted significantly upon her prospects for rehabilitation and the likelihood of reoffending. Her Honour concluded, as was open to her, that the applicant had not made significant inroads towards rehabilitation and that her prospects of rehabilitation were extremely guarded. Her Honour found that the applicant was highly likely to reoffend. Such a finding was supported by the expert psychological evidence.
In those circumstances, the weight to be given to considerations of rehabilitation was necessarily less than in other cases of juvenile offenders. Her Honour specifically took into account the fact that the youth of the applicant lessened the need for weight to be given to general deterrence but concluded that “general deterrence still has a role to play”. In my view, it is not possible to read that part of her Honour’s judgment as involving anything other than her Honour indicating plainly that she was putting less weight on principles of general deterrence in accordance with the way in which sentencing principles for juveniles are enunciated.
In my view, this ground fails.

Ground 3

Ground 3 is a parity ground, which seeks to argue that there was a marked disparity between the sentences imposed on the applicant and her co-offender such as to give rise to “… a justifiable sense of grievance”: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46.
The appropriate approach to be adopted when such a ground of appeal is raised was set out in DS v R [2014] NSWCCA 267 at [39], where the Court (Bathurst CJ, Fullerton and Davies JJ) said:

“The sense of grievance complained of when the sentence for one offender is compared relative to that of a co-offender … is to be assessed objectively, governing by considerations of substance rather than form. It is only triggered where differences in the sentences imposed on co-offenders is disproportionate to the relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct and in an offender’s objective circumstances). There are necessarily both similarity and difference in the criminal conduct of co‑offenders and in their subjective circumstances. In some cases this requires that different sentences be imposed. However, it is only where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending, the disparity is such that appellant intervention is required. For there to be a justifiable sense of grievance, the disparity must be ‘gross’, ‘marked’ or ‘glaring’.”

It is generally difficult for an applicant to sustain a complaint of disparity where the co‑offenders have been dealt with by the same sentencing Judge: Ussher v R [2016] NSWCCA 276 at [73]; Chamon v R [2020] NSWCCA 112 at [36]‑[37].
It is important to note that even if a disparity is shown, this Court is not bound to intervene if it regards the sentence imposed on the co-offender as manifestly inadequate and intervention would “produce a sentence [for the offender] that is disproportionate to the objective and subjective criminality involved”: Youkhana v R [2011] NSWCCA 37 at [49].
The applicant submitted that the relevant comparison was between the total effective sentences imposed on her and her co-offender, given that they were both sentenced for the same offences and had the same offences taken into account on a Form 1. The applicant’s total effective sentence was 4 years with a non-parole period of 2 years. The co-offender’s total effective sentence was 3 years and 2 months with a non-parole period of 1 year and 8 months. The differences between the sentences are that the co-offender received 10 months less on the head sentence and 4 months less on the non-parole period. Both sentences had a 25% discount applied by reason of the early pleas of guilty.
The applicant accepts that her subjective circumstances were largely similar to the co-offender, although she submits that the subjective circumstances in her case were stronger. She notes that neither had favourable findings in respect of the mitigating factors of remorse, prospects of rehabilitation or likelihood of reoffending.
The applicant draws attention to the fact that at the time of the offending she was 16 years and 6 months old, whereas her co-offender was 19 years and 11 months old.
After reviewing all of the facts relevant to the offending, the applicant submitted that on the balance of the facts of the principal offences, it was difficult to meaningfully distinguish between the roles played by each offender. The applicant noted that the principal point of distinction between the two offenders was the applicant’s violence during the assault of one of the victims in the park, which was an offence to be taken into account on the Form 1 with respect to Offence 1.
As well, the applicant submitted that her culpability fell to be assessed taking into account the fact that she was a juvenile at the time of the offences, whilst her co-offender, although still a young offender, was an adult at the time.
The applicant’s submissions were encapsulated in this way:

“Put simply: it is highly unusual for a 16-year-old offender to receive a substantially longer sentence than an almost 20-year-old co-offender, in circumstances where most sentencing factors are either equal or favourable to the [applicant].”

The Crown submitted that the applicant’s offending was correctly characterised by the Judge as being significant. The Crown submitted that violence was a part of Offence 1 because actual bodily harm was occasioned to the victim by the applicant immediately before that detention took place and was attributable entirely to the actions of the applicant. The Crown noted that it was the applicant who accompanied one of the victims to the ATM and stood beside her and collected the money, then demanded extra money and accompanied her to a fast-food outlet to obtain that further money. The Crown also noted that the applicant made threats to kill. The Crown submitted that all of these factors were available to her Honour to find that the role of the applicant was greater in the level of violence directed towards the victim.
The Crown drew attention to the differential way in which the sentencing Judge approached the emphasis to be placed on general deterrence and noted, as has been earlier observed in the course of this judgment, that the applicant’s propensity to violence required a significant weight to be given to the need to protect the community.
The Crown submitted that in those circumstances there were differences of a kind which warranted the different sentence that was imposed and that, accordingly, there was no justifiable sense of grievance of a kind which warranted appellate intervention.
Ultimately, the Crown submitted:

“Although it appears an unusual result that the younger of the co‑offenders who was a juvenile received the greater sentence, when regard is had to the details of the offending, including the CCTV depicting the applicant’s far greater role in the Form 1 offences and detention, and the exercise of control over a much older victim, and propensity for violence, the differences in the overall sentence of 8 months was justified.”

In my view, this ground is not established. The applicant concedes that it was open to the Judge to find that she was the instigator of the violence and further that she was the principal in the joint criminal enterprise in terms of the violence perpetrated upon the victims, the robbery, and the ongoing threats of harm. The applicant also accepts that it was open to the Judge to find, in respect of the co-offender, that she had followed the lead of the applicant in order to impress the applicant and so as not to appear weak.
I note that the Judge found that the co-offender reacted poorly to a perceived slight or perceived insult towards to the applicant and grossly over-reacted, leading to her engaging in the offending conduct. The Judge also noted that the personality of the co-offender, namely someone who had a borderline personality and a substance abuse disorder, and suffered from significant mood fluctuations, was such as to make her not a proper vehicle for general deterrence.
The question is whether these differences in the offending, and in the roles which were played, justified a different sentence, and the different effective sentence which was imposed.
In my view, the differences are sufficient to justify the different sentences imposed and are not such as to give rise to a justifiable sense of grievance.
The fact that the applicant was a juvenile was certainly a factor to be taken into account in weighing up the appropriate sentence to be imposed, as was the fact that the co-offender was a young adult in their offending. However, the similarity of their upbringings and personalities was such that the different level of maturity was a significant factor regardless of their respective ages.
Her Honour clearly had regard to that. Her Honour also clearly had regard to the differential roles that each of the applicant and co-offender took in perpetrating the offending conduct.
In my view, the evaluation of any difference in these sentences does not warrant intervention by the Court.
I propose that this ground be dismissed.

Conclusion

I have concluded that none of the three grounds which the applicant proposes to rely upon, if granted leave, ought succeed.

Orders

Accordingly, I propose the following orders:

Grant leave to appeal.

Appeal dismissed.

**********

Decision last updated: 01 March 2023

Medium Neutral Citation:	TA v R [2023] NSWCCA 27
Hearing dates:	07 December 2022
Date of orders:	01 March 2023
Decision date:	01 March 2023
Before:	Leeming JA at [1] Adamson JA at [2] Garling J at [3]
Decision:	(1) Grant leave to appeal. (2) Appeal dismissed.
Catchwords:	SENTENCING — appeal against sentence — whether sentencing judge failed to make findings as to the applicant’s reduced moral culpability — whether sentencing judge failed to apply correct principles concerning the sentencing of a juvenile —co-offenders — disparity between sentences — co-offenders sentenced by same sentencing judge — appeal dismissed
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Chamon v R [2020] NSWCCA 112 Dellow v R [2020] NSWCCA 301 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR; [2010] NSWCCA 194 DS v R [2014] NSWCCA 267 Egan v R [2017] NSWCCA 206 Lloyd v R [2022] NSWCCA 18 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Prince v R [2020] NSWCCA 268 Ussher v R [2016] NSWCCA 276 Youkhana v R [2011] NSWCCA 37
Texts Cited:	Not Applicable
Category:	Principal judgment
Parties:	TA (Applicant) The Crown (Respondent)
Representation:	Counsel: S Howell (Applicant) S Traynor (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2020/367252
Publication restriction:	Not Applicable
Decision under appeal	Court or tribunal: Campbelltown District Court Jurisdiction: Criminal Date of Decision: 29 September 2021 Before: English DCJ File Number(s): 2020/367252