TM v R

Case •

[2023] NSWCCA 185

•

26 July 2023

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: TM v R [2023] NSWCCA 185
Hearing dates: 5 July 2023
Date of orders: 26 July 2023
Decision date: 26 July 2023
Before: Payne JA at [1]
Stern JA at [2]
Yehia J at [3]
Decision:

(1) Leave to appeal granted.

(2) Appeal upheld.

(3) Quash the sentence imposed by the District Court on 24 March 2023.

(4) Impose a term of imprisonment comprising a non-parole period of 9 months commencing on 16 December 2022 and expiring on 15 September 2023, with an additional term of 2 years and 3 months imprisonment, expiring on 15 December 2025.

(5) The applicant is first eligible for release to parole on 15 September 2023.

Catchwords:

CRIME — Appeals — Appeal against sentence —

Sentencing of children — Relevant principles of sentencing — Where 15-year-old commits serious offence of aggravated robbery causing grievous bodily harm — Where moral culpability reduced as a result of a young age and a deprived and disadvantaged background — Where the weight afforded general deterrence moderated — Strong evidence of rehabilitation — Where judge erred in failing to have regard to youth in assessing moral culpability — Where judge erred in failing to have regard to youth in assessing the weight to be afforded to general deterrence — Emphasis on rehabilitation — Errors established — Resentence

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), ss 3(1), 6, 15A, 17, Div 4

Crimes (Sentencing Procedure) Act 1999 (NSW), s 32(1)

Crimes Act 1900 (NSW), ss 96, 97(1)

Cases Cited:

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

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

Camilleri v R [2023] NSWCCA 106

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

JA v R [2021] NSWCCA 10

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

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

Lee v R [2016] NSWCCA 146

Li v R [2023] NSWCCA 112

Miller v R [2015] NSWCCA 86

MS2 v The Queen [2005] NSWCCA 397; (2005) 158 A Crim R 93

MW v R [2010] NSWCCA 324

Newtown v R [2009] NSWCCA 128

Porter v R [2019] NSWCCA 117

R v Eaton [2023] NSWCCA 125

R v Elliott and Blessington [2006] NSWCCA 305

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

R v KS (No 1) [2023] NSWSC 696

R v Millwood [2012] NSWCCA 2

R v Osenkowski (1982) 5 A Crim R 394

R v Valencia Valencia (No 3) [2023] NSWSC 780

RCW v R (No 2) [2014] NSWCCA 190; (2014) A Crim R 541

Sarhene v R [2022] NSWCCA 79

Category:Principal judgment
Parties: TM (Applicant)
Rex (Respondent)
Representation:

Counsel:
T Quilter (Applicant)
E Balodis (Respondent)

Solicitors:
Bernhaut Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2021/00361821
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identity the applicant is prohibited.
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Criminal
Date of Decision:
24 March 2023
Before:
Colefax SC DCJ
File Number(s):
2021/00361821

HEADNOTE

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

The applicant, TM, pleaded guilty in the Children’s Court to an offence of aggravated robbery causing grievous bodily harm, contrary to s 96 of the Crimes Act 1900 (NSW). The offence is a serious children’s indictable offence. A further charge of robbery in company, contrary to s 97(1) of the Crimes Act was taken into account on sentence (the Form 1 offence). The applicant was 15 years and 3 months old at the time of the subject offending and was subsequently sentenced to a term of full-time imprisonment when he was 16 years old.

Colefax SC DCJ sentenced the applicant to a term of imprisonment of 3 years, commencing on 16 December 2022 and expiring on 15 December 2025, with a non-parole period of 12 months imprisonment. The sentencing judge applied a 25% discount to reflect the applicant’s early plea of guilty. The pre-discounted sentence was one of 4 years imprisonment.

On Thursday 16 December 2021, Jordon Campton, BT, and Brock Ruwoldt attended Event Cinemas, located in the Westfield Shopping Centre on Macquarie Street, Liverpool. At approximately 9:50pm, when the movie finished, TM with 10 other males followed Mr Campton, BT, and Mr Ruwoldt. TM and another young person approached BT and took his cap from his head and walked away (the Form 1 offence). Shortly after, members of the group assaulted Mr Campton by punching him and stomping on his head. TM participated by kicking Mr Campton after he had fallen to the ground (the aggravated robbery causing grievous bodily harm offence). Mr Campton was rendered unconscious and sustained serious injuries.

The applicant sought leave to appeal against his sentence on the following two grounds:

  1. The sentencing judge erred by:

  1. failing to have regard to the applicant’s young age when assessing his moral culpability; and/or

  2. failing to explain in the reasons for sentence what impact the applicant’s young age had on an assessment of his moral culpability.

  1. The sentencing judge erred by:

  1. failing to have regard to the applicant’s young age when considering the emphasis to be given to general deterrence; and/or

  2. failing to explain in the reasons for sentence what impact the applicant’s young age had on general deterrence.

The Court held (per Yehia J, Payne and Stern JA agreeing) granting leave to appeal against the sentence, allowing the appeal and resentencing the applicant.

As to ground 1, per Yehia J at [64], [67] (Payne JA at [1] and Stern JA at [2] agreeing):

  1. The only reference by the sentencing judge to the applicant’s moral culpability was by reference to the applicant’s deprived background. The sentencing judge, by reference to that background, concluded that the applicant’s moral culpability was reduced “to an extent”. That finding did not demonstrate that the sentencing judge had regard to the applicant’s young age in assessing moral culpability. Ground 1(a) of the appeal was made out, therefore, it was not necessary to consider ground 1(b).

KTv R [2008] NSWCCA 51; (2008) 182 A Crim R 571; BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379; JA v R [2021] NSWCCA 10; R v Elliott and Blessington [2006] NSWCCA 305; Miller v R [2015] NSWCCA 86; DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156; R v Valencia Valencia (No 3) [2023] NSWSC 780; R v KS (No 1) [2023] NSWSC 696; R v Eaton [2023] NSWCCA 125; Camilleri v R [2023] NSWCCA 106, considered.

As to ground 2, per Yehia J at [75], [80] (Payne JA at [1] and Stern JA at [2] agreeing):

  1. The sentencing judge failed to have regard to the applicant’s young age when considering the emphasis to be given to general deterrence. The sentencing judge’s reference to the fact that the sentence “has to be an example to others” was the only reference to general deterrence. Ground 2(a) of the appeal had been made out, therefore, it was not necessary to consider ground 2(b).

KTv R [2008] NSWCCA 51; (2008) 182 A Crim R 571; BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379; JA v R [2021] NSWCCA 10; R v Elliott and Blessington [2006] NSWCCA 305; Miller v R [2015] NSWCCA 86; Sarhene v R [2022] NSWCCA 79, considered.

JUDGMENT

  1. PAYNE JA: I agree with orders proposed by Yehia J and with her Honour’s reasons.

  2. STERN JA: I agree with the orders proposed by Yehia J for the reasons her Honour has given.

  3. YEHIA J: TM [1] (the applicant) was 15 years and 3 months old when he participated in an incident involving group violence which resulted in serious injury being occasioned to the victim, Mr Campton. The applicant was 16 years old when he was sentenced to a term of full-time imprisonment for the offending. The applicant seeks leave to appeal against the sentence of imprisonment imposed by Colefax SC DCJ (the sentencing judge) on 24 March 2023 at Parramatta District Court.

    1. There is a statutory non-publication order with respect to the name of the applicant given his age, pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

  4. The applicant pleaded guilty to an offence of aggravated robbery causing grievous bodily harm, contrary to s 96 of the Crimes Act 1900 (NSW). The maximum penalty for that offence is imprisonment for 25 years.

  5. The applicant is a child as defined in s 3(1) of the Children (Criminal Proceedings) Act 1987 (NSW) (the CCPA). The offence is a serious children’s indictable offence as defined in the CCPA, to which Division 4 of the Act applies. By virtue of s 17 of the Act, a child to whom Division 4 applies, in relation to a serious children’s indictable offence, must be dealt with according to law.

  6. The plea of guilty was entered in the Children’s Court and the matter was committed for sentence to the New South Wales District Court. In sentencing the applicant, the sentencing judge applied a 25% discount to reflect the early plea of guilty. Pursuant to s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge took into account a further charge of robbery in company, contrary to s 97(1) of the Crimes Act (the Form 1 offence).

  7. The pre-discount sentence was one of 4 years imprisonment. Applying the 25% discount, the sentencing judge sentenced the applicant to a term of imprisonment of 3 years, commencing on 16 December 2022 and expiring on 15 December 2025, with a non-parole period of 12 months. The applicant’s earliest release date is 15 December 2023. The sentence was backdated to take into account 98 days of presentence custody.

Factual Background

  1. The facts upon which the applicant was sentenced were contained in a statement of Agreed Facts, supplemented by closed-circuit television footage (CCTV) depicting the incident. The following is a summary taken from the Statement of Agreed Facts.

  2. At approximately 7:30pm on Thursday 16 December 2021, Jordon Campton, BT (17 years old at the time) (the victims), and a friend, Brock Ruwoldt, attended Event Cinemas, located on the third level of the Westfield Shopping Centre on Macquarie Street, Liverpool. At approximately 9:50pm, when the movie finished, they walked from the Event Cinemas towards the ground floor of the shopping complex.

  3. At this time, the applicant with 10 others including ST, AT, LA, AJ and JM saw the victims and followed them through the shopping complex. Six of the offenders, aged between 14 and 16, were identified and prosecuted. The other five remain unknown.

The Form 1 Offence

  1. The victims attempted to walk away from the group of males. At this time, the applicant and another young person approached BT and said words to the effect of: “Where are you going, stay here” and “[g]ive it here”. The applicant and the young person then took BT’s Nike cap from his head and walked away.

The Aggravated Robbery Causing Grievous Bodily Harm Offence

  1. Shortly after, the applicant and AJ grabbed Mr Campton’s left pocket and removed an unknown item which was placed in AJ’s jumper pocket. The applicant then took hold of Mr Campton’s shoulder bag from behind, letting go shortly afterwards. ST, JM, and another unknown young person then started to unzip Mr Campton’s blue jacket and remove it from his body.

  2. AJ grabbed Mr Ruwoldt’s jumper from behind. AJ and LA followed Mr Ruwoldt as he walked towards the George Street exit of the shopping complex. The applicant followed BT as he walked towards the George Street exit.

  3. AT, ST, and another unknown young person then cornered Mr Campton between two shop windows. ST removed Mr Campton’s jacket from his body. AT pushed Mr Campton in the chest, causing him to fall into the shop wall. Mr Campton stepped forward and was forcefully pushed back into the shop wall by another unknown male. Immediately after, AT punched Mr Campton in the head with a closed fist. Throughout the initial stages of the altercation, the applicant was standing several metres away, near the exit of the shopping complex.

  4. The other young persons, including LP, AJ, TM, JM and the five unknown males ran back to the group to join the assault. ST pushed the co-offenders in the back towards Mr Campton, as they surrounded and continued to assault him. During the assault, the unknown offenders punched Mr Campton several times, causing Mr Campton to fall to the ground in an unconscious state.

  5. Whilst Mr Campton was lying on the ground, the unknown males stomped on his head. The applicant participated by kicking Mr Campton’s body. At some point during the assault, Mr Campton was rendered unconscious.

  6. The group subsequently ran away, leaving the shopping complex. ST left with Mr Campton’s blue jacket. The applicant had BT’s hat.

  7. The incident was captured on CCTV footage and a number of witnesses contacted the police.

Mr Campton’s Injuries

  1. Mr Campton was transported to Liverpool Hospital where he received medical treatment. He remained in hospital until he was discharged on 19 December 2019. He had no memory of the incident after the point he lost consciousness. He sustained the following injuries.

  1. A bruise to the back of the nose and a laceration approximately 3 centimetres in size with dry blood.

  2. Fractures to the rear of the skull.

  3. Subdural haematoma along the flax measuring 1 millimetre and generalised cerebral oedema.

  4. Fractured eye socket.

  5. Fractured cheekbone.

  1. Following Mr Campton’s discharge from hospital, he experienced a constant sharp ringing noise in his ears, a constant migraine, difficulties maintaining his balance and insomnia.

The Applicant’s Arrest

  1. The applicant was arrested on 21 December 2021. The police conducted an electronically recorded interview with the applicant at his home. The interview was captured on Police Body Worn Camera. The applicant made full admissions to the robberies and to kicking Mr Campton while he was lying on the ground.

  2. When questioned why he assaulted and robbed the victims, he responded: “They did something, or they looked at someone”.

Remarks on Sentence

  1. The remarks on sentence (ROS) demonstrate that the sentencing judge was aware that the applicant was 15 years old at the time he committed the offences. In reference to the applicant’s age, the sentencing judge said:

“As I have said on other occasions in connection with what happened on this night, normally, a 15-year-old is sentenced very differently from an adult, and normally, a 15-year-old would be sentenced in the way the Children (Criminal Proceedings) Act says a Court should sentence a young person.

But, because the offence of aggravated robbery causing grievous bodily harm is a serious child’s indictable offence, you will be sentenced not quite as an adult but more as an adult than a child. Nevertheless, the provisions of s 6 of the Children (Criminal Proceedings) Act still apply, and I have taken s 6 into account. It has been addressed at length and helpfully by both the Crown in the Crown’s submissions and your own counsel, and I have not lost sight of the statutory guidelines in s 6.” [2]

2. Tcpt, 24 March 2023, p 1.

  1. The reference to the statutory guidelines in s 6 was a reference to the principles relating to sentencing children under s 6 of the CCPA.

  2. The sentencing judge framed his remarks on sentence by referring to the applicant in the second person. After briefly summarising the facts, the sentencing judge found that the applicant was an active member in the events which were the subject of the offending, and that he played a “very significant role”. [3] His Honour also found that the applicant was not pressured into participating and described the applicant as an “enthusiastic participant”. [4] As a result, his moral culpability was assessed as “high”.

    3. Ibid, p 2.

    4. Ibid, p 4.

  3. The sentencing judge referred to the physical and psychological harm occasioned to Mr Campton. The sentencing judge also found that there was very substantial financial damage done to Mr Campton. He was an apprentice who “worked hard and worked honestly”. [5] He had saved $20,000 to set up a flat so he could live an independent life. As a result of the assault, he lost his job, his flat and the money that he had saved.

    5. Ibid, p 3.

  4. The sentencing judge was satisfied that the substantive offence fell in the mid-range of objective seriousness. No challenge is made to that finding. In making that determination, the sentencing judge found that the offence was not planned. The assault was not provoked and there was no justification for the attack. The sentencing judge described the conduct as “quite vicious and cowardly”. [6] The sentencing judge found no additional aggravating factors.

    6. Ibid, p 4.

The Applicant’s Subjective Case

  1. The sentencing judge found that the applicant had a difficult childhood. Having already sentenced a number of co-offenders, the sentencing judge remarked that the other offenders “came from a good and loving home”. [7] While acknowledging that the applicant’s grandmother had done her best, she was not assisted by the applicant’s birth parents.

    7. Ibid.

  2. The applicant’s father was in and out of gaol. He suffered from drug and mental health issues to which the applicant had been exposed in his childhood. The applicant’s father was in custody on the very day that the applicant was being sentenced.

  3. The applicant’s mother had effectively abandoned him until he was 15 years old. The sentencing judge found that she was not a good influence on the applicant on the occasions that he was with her. The sentencing judge also acknowledged that the applicant had “a lot of challenges” in his life, warranting a reduction of moral culpability “to an extent”.

  4. The applicant had been released to bail, during which time his girlfriend became pregnant. The sentencing judge referred to the fact that the applicant was to become a father at a “ridiculously young age”, noting that the event may hopefully have a positive impact on his life.

  5. Other relevant findings of the sentencing judge included the following:

  1. The Form 1 offence did not result in any increase to the sentence for the substantive offence.

  2. The applicant did not fully accept the wrongfulness of his actions.

  3. The applicant had no prior criminal record.

  4. The sentence would reflect the seriousness of the offence, the requirement that the applicant be made an example of to others, and specific deterrence.

  5. The applicant’s prospects of rehabilitation were found to be reasonable.

  6. A term of full-time imprisonment was the only appropriate penalty.

  1. The sentencing judge referred to parity as an important sentencing principle but did not conduct an analysis of the similarities and differences between each offender, except insofar as noting that the other offenders came from a good and loving home, whereas the applicant had a difficult childhood.

  2. The sentencing judge made a finding of special circumstances on the basis that the applicant’s prospects of rehabilitation would be enhanced by a longer period on parole.

Grounds of Appeal

  1. The applicant seeks leave to appeal against his sentence on the following two grounds:

  1. The sentencing judge erred by:

  1. failing to have regard to the applicant’s young age when assessing his moral culpability; and/or

  2. failing to explain in the reasons for sentence what impact the applicant’s young age had on an assessment of his moral culpability.

  1. The sentencing judge erred by:

  1. failing to have regard to the applicant’s young age when considering the emphasis to be given to general deterrence; and/or

  2. failing to explain in the reasons for sentence what impact the applicant’s young age had on general deterrence.

  1. Although separate grounds of appeal, there is a degree of overlap in that the essential complaint is that the sentencing judge failed to have regard to the applicant’s young age. He failed to do so in two ways, firstly when assessing the applicant’s moral culpability, and, secondly, in assessing the weight to be afforded to general deterrence. Although they will be dealt with separately, the legal principles relating to young offenders apply with respect to each ground.

Ground 1(a): a failure to take into account the applicant’s young age when assessing moral culpability and sub-ground 1(b) a failure to give reasons

The Applicant’s Submissions

  1. The applicant conceded that the sentencing judge referred to the applicant’s age on several occasions. However, the applicant submitted that on a fair reading of the whole of the sentencing judge’s reasons, the sentencing judge failed to have regard to the applicant’s youth when assessing his moral culpability: see MW v R [2010] NSWCCA 324 at [50]–[55].

  2. In support of that contention, the applicant relies on five primary arguments. First, the sentencing judge did not expressly refer to the applicant’s youth as impacting upon the applicant’s moral culpability or criminality in circumstances where:

  1. The sentencing judge, after setting out the facts, and explaining the concept of joint criminal enterprise, stated: “Your moral culpability is also high”. [8]

  2. The sentencing judge accepted the applicant’s difficult childhood reduced his “moral culpability to an extent”. [9]

  3. The sentencing judge stated: “The sentence that you have to receive needs to properly reflect the seriousness of what you did. It has to be taken into account the fact that you have had difficulties in growing up”. [10]

    8. Ibid, p 3.

    9. Ibid, p 4.

    10. Ibid, p 5.

  1. Secondly, the sentencing judge did not refer to defence counsel’s submission in the District Court that the applicant’s youth materially contributed to his offending.

  2. Thirdly, the sentencing judge’s reference to s 6 of the CCPA did not demonstrate that his Honour factored youth into the assessment of moral culpability. In support of this contention, the applicant submitted that s 6 covers various matters, and it is only in an indirect way that it refers to the impact of youth on moral culpability.

  3. Fourthly, the transcript of the proceedings on sentence do not conclusively show that the sentencing judge had regard to youth as part of his Honour’s assessment of moral culpability: see RCW v R (No 2) [2014] NSWCCA 190; (2014) A Crim R 541 at [37].

  4. Fifthly, the applicant contended that the sentence itself does not support a conclusion that youth was factored into an assessment of moral culpability: see Newtown v R [2009] NSWCCA 128 at [25]. A reduction in moral culpability is a factor that ordinarily reduces both the head sentence and the non-parole period. Notwithstanding the seriousness of the offence, a notional starting point of 4 years imprisonment is a “stern” [11] sentence for an offender with no prior criminal record, who experienced a difficult childhood and has reasonable prospects of rehabilitation. Such a starting point militates against a conclusion that his Honour must have factored youth into his assessment of the applicant’s moral culpability.

    11. Applicant’s Written Submissions at [62].

  5. In the alternative, it was submitted that his Honour failed to explain how the applicant’s youth had been taken into account, constituting an error of law: see Lee v R [2016] NSWCCA 146 at [20]–[26]; Porter v R [2019] NSWCCA 117 at [56]–[67].

The Respondent’s Submissions

  1. The Crown submitted that no error is demonstrated in the way in which the sentencing judge considered the relevant factors when assessing the applicant’s moral culpability. The sentencing judge made reference to the applicant’s age on several occasions and although his Honour made a finding that the applicant’s moral culpability was high, that finding was qualified by noting that his moral culpability was reduced to an extent by the challenges that the applicant had faced during his childhood.

  2. In support of the contention that the sentencing judge was clearly cognisant of the fact that the applicant was a juvenile offender, the Crown pointed to the way in which the sentencing judge addressed the applicant by his first name and simplified and personalised the language in his reasons so that it would be understandable for the applicant.

  3. With respect to the sufficiency of the reasons given in the ex tempore judgment, the Crown submitted that it is clear that the sentencing judge was aware of the fundamental requirements under the CCPA, but the sentencing remarks needed to be explained in a way that the applicant understood the proceedings. Read in that context, the remarks on sentence avoided unnecessary exposition of the relevant points.

Relevant Legal Principles when Sentencing Young Offenders

  1. The legal principles relevant to the sentencing of young offenders are well-established and have been reiterated in several judgments of this Court. Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult: see R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451 at [25]; MS2 v The Queen [2005] NSWCCA 397; (2005) 158 A Crim R 93 at [61].

  2. In the oft cited decision of KTv R [2008] NSWCCA 51; (2008) 182 A Crim R 571 (KT) at [22]–[26], McClellan CJ at CL (as his Honour then was), summarised the following principles:

“[22]   The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30].

[23]   The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61])

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

‘It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court’s function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft (1975) VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment ie coercive action is fundamental to correctional treatment in our society.’

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

[26]   The weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity (R v Hoang [2003] NSWCCA 380 at [45]). A ‘child-offender’ of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age (R v Bus, unreported, NSWCCA, 3 November 1995; R v Voss [2003] NSWCCA 182 at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth (Hearne at [27]).”

  1. The qualification to the principles concerning young persons where they conduct themselves in an “adult like manner” should be applied with some caution. While in some cases, significant planning, or other indicia of mature decision-making, may result in a diminution of the relevant principles, the gravity of an offence does not, by itself, demonstrate “adult like” behaviour. The assessment must be one of maturity and conduct, not only the degree of violence. Here, the applicant engaged in violent conduct resulting in serious injury to the victim. However, the conduct had all the hallmarks of youth, including immaturity, absence of impulse control, poor self-regulation, and a tendency to go along with the group. I agree with the sentencing judge’s remarks that the distinction between “adult like” and “non-adult like” behaviour was unhelpful in this case.

  2. Principles relating to the immaturity of young offenders in sentencing were also set out in BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 (BP). In his reasons for judgment, Hodgson JA said, at [4]–[5]:

“[4]   First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v The Queen [2008] NSWCCA 158 at [33]-[36].

[5]   Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a ‘child offender’ of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987 (NSW). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v E (2006) 68 NSWLR 1; 164 A Crim R 208 at [127]. As shown by R v Hearne (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.”

  1. In JA v R [2021] NSWCCA 10 at [56], this Court, citing R v Elliott and Blessington [2006] NSWCCA 305 (Kirby J) at [127], referred to psychological studies in relation to young offenders, demonstrating the important distinctions between adults and children:

“[127]   A jurisprudence has developed in the context of sentencing young offenders, which recognises the important differences, in terms of responsibility, between adults and children. The reasons for the distinction were well explained in a report by a psychologist which the New Zealand Court of Appeal reproduced and appeared to accept in Slade v The Queen [2005] NZCA 19:

‘[43]   It is widely accepted that adolescents do not possess either the same developmental level of cognitive or psychological maturity as adults (Steinberg & Scott, 2003). Adolescents have difficulty regulating their moods, impulses and behaviours (Spear, 2001). Immediate and concrete rewards, along with the reward of peer approval, weigh more heavily in their decisions and hence they are less likely than adults to think through the consequences of their actions. Adolescents' decision-making capacities are immature and their autonomy constrained. Their ability to make good decisions is mitigated by stressful, unstructured settings and the influence of others. They are more vulnerable than adults to the influence of coercive circumstances such as provocation, duress and threat and are more likely to make riskier decisions when in groups. Adolescents' desire for peer approval, and fear of rejection, affects their choices even without clear coercion (Moffitt, 1993). Also, because adolescents are more impulsive than adults, it may take less of a threat to provoke an aggressive response from an adolescent’.”

  1. The relative importance of youth as a factor in sentencing is determined by the circumstances in the individual case. The principles which apply to sentencing young offenders recognise that young people’s development of regulatory competence is different to that of an adult. Immaturity, and heavy reliance on peer networks, often lead to impulsive behaviour with little appreciation of the consequences. The applicable principles also recognise that the capacity for young people to reform and mould their character to conform to society’s norms is usually greater than that of an older offender: see Miller v R [2015] NSWCCA 86 at [96], per Schmidt J (with Meagher JA and Simpson agreeing).

Consideration of Ground 1

  1. The remarks on sentence were provided by way of an ex tempore judgment. This Court has previously recognised the particular circumstances that apply when sentencing judges are called upon to consider and digest voluminous material, including submissions, in providing ex tempore reasons or in producing remarks on sentence over very short periods of time: see Li v R [2023] NSWCCA 112 at [46].

  2. Although full allowance should be made for the higher volume of work faced by sentencing judges who are called upon to produce ex tempore judgments during busy lists, an important, if not a central feature of the sentencing proceedings here was the young age of the applicant. The authorities cited above highlight the important principles that apply to sentencing young offenders and the reasons underpinning those principles. An assessment of how youth impacts upon the moral blameworthiness of a young offender is an essential feature of the sentencing exercise.

  3. Moral culpability and objective seriousness are separate but related concepts: see DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [77]; R v Valencia Valencia (No 3) [2023] NSWSC 780 at [18]; R v KS (No 1) [2023] NSWSC 696 at [68]; R v Eaton [2023] NSWCCA 125 at [45]; Camilleri v R [2023] NSWCCA 106 at [135]. Matters personal to an offender are usually relevant to an assessment of moral culpability as opposed to objective seriousness, unless causally connected to the offending. In this case, the applicant’s age was a factor relevant to an assessment of his moral culpability.

  4. Other than referring to the applicant’s age and s 6 of the CCPA, the remarks on sentence do not reveal whether, and to what extent, the applicant’s young age was taken into account in the assessment of moral culpability. Section 6 of the CCPA sets out the following principles:

6   Principles relating to exercise of functions under Act

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

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

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

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

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

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

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

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

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

  1. None of those principles directly address the concept of moral culpability. Section 6(b) requires that the court exercise its functions having regard to the state of dependency and immaturity of young offenders in emphasising the need for guidance and assistance. The focus is on the importance of rehabilitation as a primary consideration, as opposed to an assessment of the moral blameworthiness of the young offender for the offending conduct. A mere reference to s 6 says nothing about the assessment of a young offender’s moral culpability and how it may impact on the appropriate sentence.

  2. During the course of the proceedings in the District Court, the applicant’s counsel sought to address the Crown’s written submissions that planning was an aggravating feature of the offence. The sentencing judge indicated that he had not found planning as an aggravating factor in sentencing the co-offenders, a matter counsel did not “need to worry about”. A distinction between planning on the one hand, and impulsivity and spontaneity on the other, was addressed by the applicant’s counsel during the sentence proceedings, in the following exchange:

“[DEFENCE COUNSEL]: I’m grateful for that indication. My respectful submission is that your Honour would, in fact, come to a positive finding that, at the very least, this man’s participation in the s 96 offence was impulsive and was spontaneous. Now, if I don’t need to address your Honour on that, I won’t, but I anticipate that I might.

HIS HONOUR: That’s a different thing to the planning.

[DEFENCE COUNSEL]: It is.

HIS HONOUR: I’m not to be taken as accepting that particular submission. The first one, you don’t need to worry about.

[DEFENCE COUNSEL]: I’ll address your Honour in relation to the latter…” [12]

12. Tcpt, 24 March 2023, p 2(6)–(18).

  1. Defence counsel developed his submission about how the most serious aspect of the offending was committed impulsively:

“HIS HONOUR: He’s no different from any of the others.

[DEFENCE COUNSEL]: Well, your Honour, only in this way, that--

HIS HONOUR: They’ve all made the same submission.

[DEFENCE COUNSEL]: They may well have all made the same submission.

HIS HONOUR: All made the same submission.

[DEFENCE COUNSEL]: I don’t know what finding your Honour has made in relation to those others. I don’t have your Honour’s remarks on sentence. My respectful submission is that that’s a finding that would be open to your Honour, that the initial participation was an opportunistic, spur-of-the-moment plan, if I can use that phrase, or agreement that arose at about 9.50, and that his participation in the most egregious aspect, which was the assault, was a spontaneous, impulsive one.

HIS HONOUR: That’s the finding for most of them.

[DEFENCE COUNSEL]: If your Honour’s made that finding, then--

HIS HONOUR: That’s the effective finding for most of them, and we know what the outcome is.

[DEFENCE COUNSEL]: If your Honour’s made that finding, then I don’t need to say much more about it. The other aspect of the Crown, the second discreet aspect that I intended to address, and it may again be something that your Honour has already dealt with, is the Crown’s submission that this was adult-like offending. That’s at paras 17 to 18 of the Crown’s submission. It may be again that your Honour’s already made a finding in relation to that, and I don’t need to address you. But, I proceed on the premise that your Honour--

HIS HONOUR: This is offending that can be done by adults or young people.

[DEFENCE COUNSEL]: Yes. But, in my submission, the circumstances of this case, your Honour would find consistent with my written submission that his participation bears many of the hallmarks of youth.

HIS HONOUR: Necessarily, because he was only 15 years and three months of age.

[DEFENCE COUNSEL]: As I understand, your Honour, the Crown’s submission, it’s contended that some of the principles that apply to the sentencing of youth attract less wait in this sentencing exercise because this is adult-like offending. Now, if that is a submission that’s not being maintained, or if that’s not a finding that your Honour’s going to make, then I can move to a different topic.

HIS HONOUR: It’s serious offending.

[DEFENSE COUNSEL]: It is serious offending.

HIS HONOUR: Words such as adult and non-adult are not of much assistance. It’s serious offending with serious consequences. Unlike others, though, your client has sought to minimise his offending by providing some sort of excuse.” [13]

13. Ibid, pp 2(50)–3(47).

  1. What can be gleaned from these exchanges is that the sentencing judge was of the view that an absence of planning and impulsivity are different matters; that the co-offenders acted impulsively, and that the applicant is no different to the others; the applicant’s participation necessarily bears the hallmarks of youth because of his age; and the distinction between adult like and non-adult like offending is unhelpful.

  2. The importance of youth in assessing moral culpability, such that retribution should assume less significance, was therefore addressed in oral as well as written submissions in the sentencing proceedings. Notwithstanding that focus, the applicant’s young age was not taken into account in assessing his moral culpability.

  3. Following the summary of the facts, the sentencing judge made a finding that the applicant’s moral culpability was high. In making that assessment, his Honour did not have regard to whether, and to what extent, the applicant’s immaturity, poor self-regulation, and reduced capacity for consequential thinking, as a result of his young age, may have impacted upon his moral blameworthiness.

  4. The contents of the Confidential Background Report referred to the applicant’s difficulty controlling his emotions. He was assessed as having limited decision-making skills, a lack of consequential thinking, poor impulse control, and poor emotional regulation, all of which contributed to his offending behaviour. All of these factors were relevant to an assessment of the applicant’s moral culpability. None were taken into account by the sentencing judge in assessing the applicant’s moral blameworthiness.

  5. The only reference to moral culpability was by reference to the applicant’s deprived background. The sentencing judge, by reference to that background, concluded that the applicant’s moral culpability was reduced “to an extent”. That finding does not demonstrate that the sentencing judge had regard to the applicant’s young age in assessing moral culpability. Mr Quilter, on behalf of the applicant, submitted that moral culpability is not some binary concept where it is either high or low. Rather, moral culpability is a very broad spectrum where more than one factor may have a downward impact. I agree with that conceptualisation.

  6. An adult offender’s moral culpability may be reduced, even significantly reduced, by virtue of a background of deprivation and disadvantage. That is a separate consideration from an offender’s youth. A young offender’s moral culpability may be reduced as a result of a combination of factors which, in the relevant case, may include a background of dysfunction and youth, two separate considerations.

  7. The violence perpetrated by the applicant and his co-offenders resulted in debilitating injuries to the victim which, no doubt, will have a long-lasting impact. That the offence was objectively serious is not in issue. However, in assessing the moral blameworthiness of the applicant, the sentencing judge was required to take into account the particular features relating to his young age. Those features were directly relevant to the applicant’s moral culpability because they did not involve any of the indicia of mature decision-making.

  8. I am satisfied that ground 1(a) is made out. It follows that it is unnecessary to consider ground 1(b).

Ground 2(a): a failure to have regard to the applicant’s young age when considering the emphasis to be given to general deterrence and sub-ground 2(b) a failure to give reasons

The Applicant’s Submissions

  1. The applicant’s submissions in support of ground 2 overlap, to some extent, with that made in support of ground 1.

  2. The applicant submitted that the sentencing judge did not take into account the applicant’s youth when determining the emphasis that should be given to general deterrence. The applicant contended that this is more than a complaint about the relevant weight given to different sentencing factors: see Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]. In support of ground 2, the applicant relied on the arguments advanced in support of ground 1, namely, the lack of express reference to the issue in the reasons, the failure to address the submissions, the absence of a clearly expressed conclusion in the transcript of proceedings, and the length of sentence.

  3. In the alternative, the applicant submitted that the sentencing judge failed to explain what impact the applicant’s age had on the weight to be afforded general deterrence.

The Respondent’s Submissions

  1. The Crown submitted that this was clearly a serious offence given the maximum penalty and the injuries suffered by the victim. General deterrence was part of the mix of considerations that were relevant when sentencing the applicant. The Crown further submitted that even though the applicant is a young offender, some weight must be given to general deterrence, having regard to the seriousness of the offence.

  2. The Crown pointed to the generous adjustment made to the statutory ratio between the non-parole period and the head sentence, in support of the contention that general deterrence was given limited weight.

Consideration of Ground 2

  1. The Crown’s written submissions at the sentencing proceedings ([17]–[18]), referred to the moderation that may be given to general deterrence in favour of rehabilitation when sentencing a juvenile offender. The defence written submissions similarly referred to those principles, citing KT.

  2. The relevant reference to general and specific deterrence appears at p 5–6 of the ROS, where the sentencing judge said:

“The sentence that you have to receive needs to properly reflect the seriousness of what you did. It has to take into account the fact that you have had difficulties in growing up. It has to address your prospects of rehabilitation. It has to be an example to others. It has to encourage you not to offend again. All of the others, bar one, have received sentences of full-time imprisonment. Parity is an important principle.”

  1. The reference to general deterrence is encapsulated in his Honour’s remark that the sentence “has to be an example to others”. Accepting the need to articulate the remarks on sentence in such a way as to be understood by a 16-year-old, it was still necessary for the sentencing judge to articulate how, if at all, general deterrence was moderated. No regard was had to the way in which the applicant’s young age may have operated to reduce the weight afforded to general deterrence and the importance of rehabilitation.

  2. In KT, McClellan CJ at CL (as his Honour then was) at [22]–[26], referred to the uncontroversial sentencing principle that less weight should be given to general deterrence when sentencing young offenders, subject to the facts of each case. Furthermore, considerations of deterrence and retribution will have less weight than rehabilitation in a case involving a juvenile offender: see BP at [4].

  3. In Sarhene v R [2022] NSWCCA 79 at [25], Hamill J (Leeming JA and Ierace J agreeing) emphasised the following:

“Considerations of general deterrence may be less significant when sentencing a juvenile or young offender.

Rather, emphasis should be placed on the ‘the need to provide an opportunity for rehabilitation’.”

  1. It is no answer to the complaint made under ground 2 that the sentencing judge found special circumstances and varied the statutory ratio significantly. The sentencing judge clearly identified the reason for finding special circumstances and varying the statutory ratio downwards. Having found that the applicant’s prospects of rehabilitation were reasonable, the sentencing judge made a finding that the applicant’s prospects of rehabilitation would be enhanced by a longer period on parole, thereby warranting a finding of special circumstances.

  2. The finding of special circumstances did not relate to whether, and to what extent, the applicant’s young age reduced the weight to be afforded to general deterrence. The finding that the applicant’s prospects of rehabilitation would be enhanced by a longer period on parole is no different from a similar finding made in the case of an adult offender.

  3. I am satisfied that the sentencing judge failed to have regard to the applicant’s young age when considering the emphasis to be given to general deterrence. Ground 2(a) has been made out. It follows that it is not necessary to consider ground 2(b).

Resentence

  1. Where error is established, this Court “…does not assess whether and to what degree the error influence the outcome”: see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. Rather, it is the duty of this Court to exercise the discretion afresh, including having regard to events since sentencing.

  2. The offence involved group violence which was unprovoked and resulted in serious and debilitating physical and psychological injuries to the victim. The seriousness of the offence is reflected in the maximum penalty, which is 25 years imprisonment.

  3. I am satisfied, having read the statement of Agreed Facts and having watched the CCTV footage of the incident, that there was no planning and the applicant’s conduct was relatively impulsive and spontaneous. I agree that the objective seriousness of the offence falls in the middle of the range.

  4. The applicant’s subjective case demonstrates a background of significant deprivation and disadvantage. The applicant is now 16 years old. He is of Samoan and Laotian descent. He has experienced what is referred to in the Confidential Background Report as a complex family background, his upbringing having been emotionally chaotic.

  5. Information received from the Department of Communities and Justice – Child Protection, indicated that between 2006 and November 2022, there had been 13 Helpline reports relating to the applicant. These reports were in relation to neglect, psychological harm, inadequate nutrition, child exposure to domestic violence and risk of physical harm due to exposure to domestic violence. In November 2022, there was a report in relation to the applicant’s homelessness.

  6. The applicant’s father has an extensive history of involvement with the criminal justice system and has been incarcerated on a number of occasions throughout the applicant’s childhood and adolescence. The applicant’s father is currently remanded in an adult correctional facility. The applicant was exposed to criminality and antisocial behaviour from a young age. He was exposed to violence in the family home as a young child and adolescent, which contributed to his response in managing his levels of stress or anger through violence.

  7. The applicant’s mother has had her own difficulties and provided little support to the applicant throughout his formative years. His grandmother has been his principle source of support and his saving grace. She has continued to support the applicant as best she can. However, the applicant’s disconnection from his parents has impacted upon his emotional and psychological well-being.

  8. Clearly, the applicant has experienced a disadvantaged and deprived childhood. Although he has had the support of his grandmother, his exposure to violence, antisocial conduct, homelessness, and experience of abandonment, in his young life, are all matters relevant to reducing his moral culpability. In R v Millwood [2012] NSWCCA 2 at [69], Simpson J said:

“I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a ‘normal’ or ‘advantaged’ upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.”

  1. These remarks are apposite. In addition to the applicant’s background of deprivation, his moral culpability is reduced by virtue of his young age.

  2. The applicant’s affidavit, relied upon on resentence, confirms that his girlfriend gave birth to their son on 6 June 2023. He is “really happy” about being a dad. He was able to watch the birth of his son on a video call from Cobham Youth Justice Centre. He was grateful for being able to do so but was saddened by the fact that he could not be at the hospital with his girlfriend.

  3. The applicant is determined to be a responsible parent upon his release from custody. Although there is one misbehaviour report in his Youth Justice file, the evidence confirms that the applicant has been engaging in programs and activities whilst in custody, including going to school, completing a life skills course, meeting with his caseworker, attending appointments with his psychologist, engaging in the CHART program, the Pacific Islander program, and the PCYC program.

  4. Although he did not want to complete Year 12, preferring to engage in other forms of education, the applicant was motivated to obtain his white card so that he could obtain employment in the construction industry upon his release. He has completed the course and has received his white card certificate.

  5. The applicant has engaged with his social worker and psychologist and has developed an insight into the wrongfulness of his actions and some of the criminogenic factors that led to the offending. He has also developed an understanding of strategies to reduce the risk of re-offending, including abstention from alcohol and illicit drugs and avoiding antisocial peers.

  6. The applicant has maintained contact with his grandmother and girlfriend. He engages with the prison chaplain in an effort to obtain the personal strength required to maintain his resolve, upon release, not to re-offend.

  7. Annexures to the affidavit (affirmed on 14 June 2023) of Mr Bernhaut, the applicant’s solicitor, contain material from the applicant’s Youth Justice file. That material confirms that the applicant has engaged in several programs whilst in juvenile detention. He has also engaged in psychological intervention. The applicant has engaged well in sessions and participated in discussions. He is open, honest, and compliant. The applicant has been observed to interact well with staff and his peers. No risk factors are noted or reported.

  8. Mr Bernhaut affirmed a further affidavit on 4 July 2023, in which he confirms that the applicant has an offer of full-time employment from his uncle upon his release from custody. Mr Christopher Fretton-Anae is the operations manager for a strata maintenance company called Perfect Strata Maintenance. Mr Fretton-Anae has confirmed his offer of full-time employment and his intention to enrol the applicant in an apprenticeship in Landscaping Construction. This employment involves a number of responsibilities. The applicant will be taking guidance from supervisors, who will develop his skills and knowledge.

  9. In addition to this offer of employment, Michael Coleman, Wellbeing Manager at Plate It Forward, has connected with the applicant whilst running the Second Chance Kitchen pilot program at Cobham Youth Justice Centre. The applicant was highly engaged in the program and Mr Coleman was so impressed that he offered him a full-time job with Plate It Forward, on his release.

  10. The offer of employment with the applicant’s uncle not only affords the applicant the opportunity to earn an income and provide for his young family, but also an opportunity to study and improve his skills and knowledge. His uncle is the Operations Manager and, in that capacity, will be able to provide a degree of supervision and support. Employment will also enhance the applicant’s self-worth, dignity, and self-respect.

  11. The sentence must reflect a number of purposes of sentencing including holding the applicant to account for his conduct and acknowledging the harm occasioned to the victim. The weight afforded to general deterrence is moderated having regard to the applicant’s young age. It remains, however, a relevant sentencing consideration in light of the nature and extent of the violence perpetrated.

  12. Specific deterrence carries little weight. The applicant has no criminal record. He has progressed well during his time in custody. I am satisfied that the applicant is remorseful and has good prospects of rehabilitation. Rehabilitation remains a primary consideration.

  13. On the one hand, the applicant’s moral culpability is significantly reduced and the weight to be afforded to general deterrence is moderated, having regard to his young age. On the other hand, the offending conduct was serious, resulting in debilitating injuries to the victim. I am satisfied that the head sentence, reduced by 25% to reflect the utilitarian value of the plea, is appropriate in all the circumstances.

  14. I am satisfied that special circumstances exist having regard to the applicant’s good prospects of rehabilitation, his need for an extended period of supervision and guidance upon his release, and the fact that this is his first time in custody. A generous finding of special circumstances was made by the sentencing judge. In light of the material that has been relied upon on resentence, I am satisfied that the statutory ratio should be further reduced, resulting in an earlier release date, to allow the applicant to take up his employment as soon as possible.

  15. The applicant’s subjective case is a compelling one. He is at a crossroads and has an opportunity, now, to turn his life around, taking up employment and providing for his young family. The protection of the community is also contributed to by the successful rehabilitation of the applicant. There must always be a place for leniency, particularly where that leniency at a particular stage of an offender’s life might lead to reform: see R v Osenkowski (1982) 5 A Crim R 394 at 394 (King CJ).

  1. Accordingly, I propose the following orders:

  1. Leave to appeal granted.

  2. Appeal upheld.

  3. Quash the sentence imposed by the District Court on 24 March 2023.

  4. Impose a term of imprisonment comprising a non-parole period of 9 months commencing on 16 December 2022 and expiring on 15 September 2023, with an additional term of 2 years and 3 months imprisonment, expiring on 15 December 2025.

  5. The applicant is first eligible for release to parole on 15 September 2023.

Endnotes

Amendments

02 August 2023 - Corrected paragraph numbering in headnote.

Decision last updated: 02 August 2023

Most Recent Citation
Cases Citing This Decision

27

R v Walmsley-Hume; R v Walmsley (No 6) [2025] NSWSC 582
R v Titan Gilkes [2025] NSWSC 23
R v Diallo & Ors (No 17) (Sentence) [2024] NSWSC 1650
Cases Cited

32

Statutory Material Cited

3

BP v R [2010] NSWCCA 159
Bugmy v The Queen [2013] HCA 37
Bugmy v The Queen [2013] HCA 37