Vassiliou v The The Queen

[2022] NSWCCA 91

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Vassiliou v R [2022] NSWCCA 91

Hearing dates:

22 April 2022

Date of orders:

16 May 2022

Decision date:

16 May 2022

Before:

Harrison, Davies and Hallen JJ at [1]

Decision:

(1)   Grant leave to appeal.

(2)   Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against sentence – where applicant pleaded guilty in Local Court to robbery in company – discount for assistance – where another offender involved – where other offender identified by applicant - where alleged co-offender not prosecuted – whether sentencing judge erred in not having regard to all matters set out in s 23(2) in assessing value of applicant’s assistance – whether discount of 5% was open to sentencing judge

CRIME – appeals – appeal against sentence – parity – where applicant’s 16-year-old sister was co-offender and was sentenced in Children’s Court – whether disparity between sentences imposed on applicant and young person gave rise to a justifiable sense of grievance – where parity not raised by the applicant before the sentencing judge – significant differences between applicant and co-offender – no justifiable sense of grievance

Legislation Cited:

Crimes Act 1900 (NSW) ss 97, 192E

Crimes (Sentencing Procedure) Act 1999 (NSW) s 23

Firearms Act 1996 (NSW) ss 4, 4D, 7, 65

Cases Cited:

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Greentree v R [2018] NSWCCA 227

Hraiki v R [2019] NSWCCA 140

Hutchinson v R [2014] NSWCCA 317

Jones v R [2021] NSWCCA 106

R v Henry (1999) 46 NWSWLR 346; [1999] NSWCCA 111

Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Jacob Vassiliou (Applicant)
Crown (Respondent)

Representation:

Counsel:
M Crawford-Fish (Applicant)
E Nicholson (Respondent)

Solicitors:
Mark Klees & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2020/134455

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

R v Vassiliou [2021] NSWDC 403

Date of Decision:

24 May 2021

Before:

Wilson SC DCJ

File Number(s):

2020/134455

Judgment

1. THE COURT: The applicant pleaded guilty to the following offences:

Sequence 6: Robbery in company contrary to s 97(1) Crimes Act 1900 (NSW). The maximum penalty for this offence is 20 years’ imprisonment and there is no standard non-parole period.

Sequence 7: Possess unauthorised prohibited firearm contrary to s 7(1) of the Firearms Act 1996 (NSW). The maximum penalty for this offence is 14 years’ imprisonment and there is a standard non-parole period of four years.

2. The applicant asked the sentencing judge to take into account two further offences in relation to sequence 6. Those offences were:

(a) Sequence 4: Possess ammunition without holding licence/permit/authority, contrary to s 65(3) of the Firearms Act 1996. The maximum penalty for this offence is a fine of 50 penalty units;

(b) Sequence 5: Dishonestly obtain financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900. The maximum penalty for that offence is ten years’ imprisonment and there is no standard non-parole period.

3. On 24 May 2021 the applicant was sentenced by his Honour Judge Wilson SC as follows:

Sequence 5:      A non-parole period commencing 3 December 2020 and expiring 2 August 2022 with a balance of term of 13 months and 17 days expiring 19 September 2023.

Sequence 7:      A community correction order for three years commencing 24 May 2021 expiring 23 May 2024.

4. The applicant sought leave to appeal against the sentence in respect of sequence 5 only. There is no appeal in respect of the community correction order that was imposed.

5. The applicant’s notice of appeal contained the following grounds:

Ground 1: In not having regard to all matters set out in s 23(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the sentencing judge erred in his application of the law as it relates to assistance to authorities.

Ground 2:    The sentencing judge erred in assessing the value of the applicant's assistance at 5%.

Ground 3:   In finding that parity was not relevant because the co-offender was dealt with in the Children's Court the sentencing judge erred in his application of the law as it relates to parity.

Ground 4:   The disparity between the applicant's sentence as compared with the sentence imposed on his co-offender gives rise to a justifiable sense of grievance.

6. Shortly before the hearing of the application, the applicant abandoned ground  3. The Crown indicated that her submissions in relation to this ground were also relevant to a consideration of ground 4.

The offending

7. The applicant was born on 25 November 1999. At the relevant time, he was in the company of a young person, being his sister (“the young person”), who was born in August 2003.

8. The following summary is derived from the statement of agreed facts tendered on sentence.

9. The facts relating to the robbery in company were as follows.

10. The complainant was William Quinn, then aged 18 years. He and the young person had been messaging via Instagram for about two months. During the afternoon of Monday, 27 April 2020, the young person and the complainant were chatting online, and the young person asked the complainant to buy her cigarettes in exchange for him being able to go back to her house afterwards. The offer had the connotation of a sexual nature.

11. At about 5.30pm on the same day, the complainant left his house and went to meet the young person. The complainant caught a train from Liverpool to Yagoona, sending messages about his location to the young person.

12. At about 6.30pm, CCTV at Yagoona Train Station captured the complainant arriving and disembarking from the train. The young person met the complainant and greeted him with a hug before travelling along the concourse and through the station towards the highway.

13. The complainant and the young person walked towards a convenience store until they reached a small park. The complainant heard his name being called out and he turned around. The complainant saw two males running towards him. The first male, who was skinny, was wearing a black jumper and a folded black and white bandana or balaclava on his face. He was referred to as Dyllen. The second male, who was the applicant, did not have a mask and had a full beard. The complainant could no longer see the young person.

14. The applicant swung his arm in a “big hook punch” towards the complainant’s face. The complainant ducked, and the applicant lost his balance and fell to the ground. Dyllen, however, punched the complainant repeatedly to the body. The complainant’s wrists were then held by Dyllen. The complainant struggled. The applicant attempted to place the complainant in a headlock, but the complainant scrambled away. The applicant said “give me your wallet, phone, and everything else you have”. Dyllen put one of his arms around the complainant’s neck and started to squeeze.

15. The complainant reached into his pockets and handed the applicant an Apple iPhone XS; an Oppo-branded mobile phone; a brown leather wallet containing a New South Wales driver’s licence; a New South Wales white card, $50 in Australian currency; and a Commonwealth Bank card.

16. Dyllen and the applicant then ran towards the Hume Highway. The complainant walked to a nearby business, where he disclosed what had happened to him and the police were called. Police attended the location a short time later.

17. The following facts relate to the offence of dishonestly obtaining a financial advantage ($40) by deception, one of the offences placed on a Form 1.

18. At about 11.47pm on 27 April 2020, a short distance from the scene of the robbery referred to, at the 7-Eleven service station on the Hume Highway, the applicant used the complainant’s Commonwealth Bank card to make a purchase. He used the tap-and-go feature to purchase cigarettes to the value of $40.

19. At about 1.00pm on Tuesday, 5 May 2020, police executed a search warrant at the applicant’s home address. At the time of the execution, the applicant was present with family members. He was arrested and cautioned in relation to the robbery and fraud.

20. During the search, the police found and seized 99 rounds of gold .22 long rifle calibre cartridges located inside a black, unlocked box inside the bedroom of the applicant. The cartridges are ammunition, as defined under s 4(1) of the Firearms Act. That constituted the other offence referred to on the Form 1, being in possession of ammunition.

21. During the search the police also located a black imitation pistol (which was found inside the garage). That item was an imitation firearm pursuant to s 4D(3) of the Firearms Act.

22. Following his arrest, the applicant participated in a recorded interview in which he admitted confronting the complainant, saying that he did it because the complainant was trying to be sexual with the young person. He said that he did not plan to rob the complainant, and also said that he knew he should not have done it but ran up in a sheer rage. He stated that he hit the complainant and fell over; and he went elbow and knee first to the ground.

23. At the time of the offending the applicant was subject to a conditional release order imposed on 14 October 2019 for a two-year period for possessing a prohibited drug.

Subjective matters

24. Although the applicant gave evidence at the sentence proceedings, that evidence only concerned the identification of a co-offender. The only source of evidence about the applicant was a detailed report from the psychologist, Luke Brabant.

25. The report disclosed that the applicant was the eldest of five children. The applicant said that his father abused alcohol, and became aggressive and reactive when intoxicated. He witnessed his father being physically abusive towards his mother. On occasions his mother left the house with the children for days at a time to escape the violence. His father was also physically abusive to him and his siblings. This occurred in the context of discipline, but for seemingly innocuous behaviour.

26. By the time the applicant was in high school, he started to respond to his father’s violence by fighting back, but this did not curtail the physical abuse. His father otherwise ignored the children, which left the applicant feeling unwanted and rejected. He felt unable to rely on him for support, and resulted in the applicant seeking out older friends to provide a male influence in his life.

27. The applicant’s parents separated when he was aged 14. He and his siblings initially resided with their father, but the conflict with, and the physical abuse from, his father continued. He moved out after a year, and eventually moved back with his mother. She had re-partnered, but the applicant had limited contact with the partner because the applicant was focused on abusing substances.

28. The applicant had sound academic engagement in primary school, but there was an issue with fighting, because he responded to bullying with physical aggression. That this response deterred the bullying led him to believe that violence could be useful. Nor did his father reprimand him for engaging in fights. By year 8, his behaviour had deteriorated, and he incurred multiple suspensions for fighting, talking back to teachers, possessing fireworks, engaging in graffiti and truanting. His actions were influenced by his choice of friends, whom he described as delinquent. He said that he had incurred multiple head injuries as a result of being involved in fights. He had sustained concussion but had not been rendered unconscious.

29. He entered the workforce at 14, and has held a variety of jobs including working in a fast food restaurant, working as a tiler, at a market and as a cleaner.

30. The applicant started smoking cannabis at the age of 13. This escalated during the time of his parents’ separation to smoking three grams of cannabis per day when aged 14 to 20. He told the psychologist that he was under the influence of cannabis at the time of the offending. He first used MDMA at the age of 15 on a weekly to fortnightly basis to the age of 18,when his consumption of it reduced. He has also used LSD on occasions. He abused non-prescription alprazolam on a daily basis between the ages of 17 and 19. When he was 19 he commenced smoking crystal methamphetamine, and did so once to twice a week for a six-month period. He told the psychologist that he had been abstinent from all substances since August 2020.

31. The applicant met his partner when he was 19. They have a son who at the time of sentencing was aged 1.

Remarks on Sentence (ROS)

32. The sentencing judge accepted the joint submission of the parties that no other sentence than imprisonment was warranted for the robbery offence. In relation to aggravating factors, the sentencing judge found that, although plans were made to have the complainant at Yagoona at the time of the offending, his Honour did not accept that there was any planning involved in the robbery, and that it was almost an afterthought.

33. His Honour then considered the factors identified in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111, noting that the applicant was young, that a small amount was taken from the complainant, and that there had been an early plea in the face of a strong Crown case. His Honour noted that no weapon was involved, but there was actual violence inflicted on the complainant. His Honour found that the objective seriousness of the robbery offence was at the mid-range, and that the firearm offence fell at the low range.

34. The sentencing judge accepted that the applicant was remorseful and, seemingly, that there were prospects of rehabilitation. His Honour said that a need for general deterrence was important in these types of matters.

35. His Honour accorded a 25% discount for the applicant’s early plea, and a further 5% for his assistance pursuant to s 23 of the Sentencing Act.

Grounds of appeal

Ground 1: In not having regard to all matters set out in s 23(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the sentencing judge erred in his application of the law as it relates to assistance to authorities.

36. So that this ground of appeal can properly be understood, it is necessary to set out what occurred at the sentence hearing.

37. On the first day of the sentencing hearing, when the sentencing judge was seeking to understand whether planning had been involved in the robbery, the following exchanges occurred:

HIS HONOUR: Ms Ervin, can I ask you this question and then perhaps Mr Adams can reply in due course? Is it the Crown case that this was some sort of setup by this offender and his sister to engage in robbery in company?

ERVIN: Yes. In the Crown’s submission, that is the only inference that can be drawn from the messaging, the fact that the young person greeted the victim with a hug at the station and then took him to the park where the offender and the person in the balaclava were waiting for him. She then disappeared and that’s where the robbery occurred.

HIS HONOUR: And there’s no evidence that he, that is, the victim, in any way acted inappropriately towards the young person prior to the intervention of this offender?

ERVIN: No.

HIS HONOUR: And he attended Yagoona at the invitation of the young person?

ERVIN: Yes.

HIS HONOUR: It does sound very much like it was set up to achieve this purpose of robbery.

ERVIN: Yes.

HIS HONOUR: Yes. Do you want to address that question, Mr Adams, at some point?

ADAMS: Your Honour, I didn’t realise that she’d been charged. On the facts I didn’t see that she’d done anything aside from meet the young man.

HiS HONOUR: You didn’t know she’d been charged at all?

ADAMS: No.

HIS HONOUR: Have you not seen the Crown’s submissions?

ADAMS: Yes, I did this morning, your Honour.

HIS HONOUR: I see.

ADAMS [scil. ERVIN]: I had sent them to Mark Klees. I was unaware that Mr Adams was in the matter.

HIS HONOUR: I see. Does exhibit A not refer to a co-offender?

ERVIN: It does.

HIS HONOUR: So the Crown bundle refers to there being a co-offender?

ERVIN: Yes.

HIS HONOUR: Do you need to get instructions about that matter, Mr Adams?

ADAMS: No, your Honour. I don’t. My instructions are that that’s not the situation, that he just came upon them and that the co-offender, being the person referred to as the other, was a friend of the sister and he just Joined in but-

HIS HONOUR: Hang on, the co-offender is the sister, but you’re referring to the unidentified other male present-

ADAMS: Yes.

HIS HONOUR: -presumably the identity of whom is known to your client?

ADAMS: I don’t have instructions on that.

HIS HONOUR: I mean, It’s obviously not a matter of aggravation and he won’t be sentenced adversely as a consequence of that but he would be entitled to some mitigation in penalty if he was to assist the police in their inquiries on that matter.

ADAMS: He hasn’t assisted the police, your Honour, and I don’t think he intends to.

HIS HONOUR: He is aware of the fact that he may get a lesser sentence if he does assist the police?

ADAMS: I believe so, your Honour.

HIS HONOUR; When you say you believe so, are you saying yes or-

ADAMS; Do you want to tell who it is.

OFFENDER; I only know his first name. I’ve never met the bloke.

HIS HONOUR; No, just speak to your barrister.

ADAMS; He’s prepared to cooperate with the police, your Honour.

(emphasis added.)

38. The applicant then gave evidence, during which he said he only knew that the co-offender was called “Dyllen”, and that he had only met him once or twice through the young person. In answer to a question that asked if he had made arrangements with Dyllen to go to the place where the assault took place, he said:

No, I didn’t, I didn’t initially make arrangements with him. He was with my sister at the time but I was unaware that he was there. Like I was unaware that he was with my sister when it happened. Like when I went down with my sister I didn’t know he was going to be there until I was there and it kind of unfolded from then.

39. During cross-examination by the crown prosecutor, the judge offered the applicant the opportunity to speak to the young person to find out more information about Dyllen. The applicant did so and then informed the Court of Dyllen’s surname and the address where he lived. The proceedings were then adjourned so that the police could make inquiries.

40. On the resumption of the sentence proceedings almost a month later, a statement was tendered from a police officer. The police officer said that he had been to the address of “Dyllan (sic) Fisher” who claimed to have been “picked up about a day or two before” the young person did anything about the complainant. He said he knew that the applicant and the young person set up the complainant but he denied having any interaction with the complainant or having been involved.

41. The crown prosecutor informed the sentencing judge that the police had indicated that they were not taking the matter any further, given the passage of time and the fact that Dyllen Fisher was a juvenile so that they could not take DNA or undertake forensic testing “with ease”.

42. During the submissions made on behalf of the applicant, the following exchange occurred:

HiS HONOUR; Do you submit that, notwithstanding the futility of this police inquiry, there ought be a discount on sentence for assistance?

ADAMS: His evidence was that he didn't know that information, the full extent of that informatlon. He just knew that it was Dyllen who was there and that it had something to do with his sister. It was only on the day when you raised it that you got him to go and speak to his sister and he gave what information he could.

HIS HONOUR: So a small discount, do you say?

ADAMS: If nothing else, it shows he’s tractable. It shows that he’s realised the seriousness of it all and he’s not treating anything lightly.

43. His Honour then adjourned for 15 minutes at the conclusion of submissions, following which he delivered his ROS ex tempore. In the course of the ROS, his Honour said this:

[36] One matter which arose in the course of the sentence hearing was the willingness of the offender to assist with inquiries as to the identity of the male co-offender, who was wearing a balaclava. Police spoke to that person on 4 May of this year, at which time he denied being involved. He did however acknowledge that he was aware of what had occurred on the day in question. Whilst the assistance provided by the offender to the Court has not led to any success in terms of charging the co-offender, I am satisfied that the assistance provided by the offender attracts the favourable application of s 23 of the Crimes (Sentencing Procedure) Act. That is to reduce penalties for assistance provided to law enforcement authorities.

[37] I have had regard to the matters set out in s 23(2) of the CSP Act. I am also satisfied that the sentence to be imposed as a consequence of any discount will not result in a sentence which is unreasonably disproportionate to the nature and the circumstances of the offence. In accordance with subsection (4), I indicate to the offender and make a record of the fact that a lesser penalty is being imposed for assistance provided to the police in ascertaining the identity of the co offender. For his assistance, I have applied an additional discount of 5%.

Submissions

44. The applicant submitted that the sentencing judge committed a relevant error because he failed to take into account all of the considerations in s 23(2) of the Sentencing Act. It was submitted that even though his Honour had stated that he “had regard to the matters set out in s 23(2)”, this Court was required to consider whether a reference could be found to each of the sub-sections in his Honour’s reasons. It was submitted that a fair reading of the ROS revealed that “there is no evidence from which it could be reasonably concluded that he did”. In particular, it was said that there was no evidence of there being:

“1)   Concern for the need to protect the confidentiality of confidential exhibits, there being no such exhibit;

2)   Consideration given to police evaluation of the assistance rendered of any undertaking to assist;

3)   Assessment of the truthfulness, completeness and reliability of the assistance given;

4)   Consideration given to any danger or risk of injury to the applicant or the applicant’s family, resulting from the assistance.”

45. It seems that the thrust of the first ground of appeal is that because his Honour failed to refer expressly to each of the factors in s 23(2), he fell into error. It was not submitted, expressly, that the general statement made by the sentencing judge did not expose “the process of evaluation of the various considerations relevant to an assessment of the appropriate level of discount to be provided for the assistance” (a submission made in Greentree v R [2018] NSWCCA 227at [52]).

46. The applicant submitted that this was not a case like Greentree where confidential exhibits were involved and it was necessary for the Court to manage any risk which might flow from a disclosure of confidential matters.

47. The Crown submitted that “a fair reading of the “sentencing judgment” and the transcript of the proceedings makes clear that the sentencing judge considered all of the s 23(2) factors, specifically acknowledging, in the ROS, that he had done so. The Crown noted that the sentencing judge “had adjourned the proceedings for the express purpose of allowing an assessment to be made of the assistance, including its truthfulness and reliability and to inform the Court about the value of the assessment”.

48. Specifically, the Crown submitted that the assistance provided by the applicant had not resulted in any charges being laid or in the prosecution of any individual. The person named by the applicant had denied any involvement, yet the applicant had not stated that he was prepared to make a formal statement or provide an undertaking to give evidence in any proceedings against that person in the future. The information the applicant provided concerning the unidentified offender was of no utility.

Determination

49. As this Court has made clear in relation to s 21A of the Sentencing Act, the matters set out in s 23(2) are similarly not to be treated in the manner of a checklist in circumstances where a number of the matters listed in the sub-section bear no relevance to the facts of the particular case before the sentencing judge. Nothing in Jones v R [2021] NSWCCA 106 suggests otherwise. In that case, there was evidence about matters contained in a number of the paragraphs in sub-s (2)(c), (b), (e) but the sentencing judge made reference only to par (b) when assessing the discount.

50. Nor does what was said in Greentree suggest that error is always established where no reference is made to particular matters. Justice Beech-Jones, at [54], said only that two related errors can sometimes be established from the failure of the judge to refer expressly to individual factors, but those were factors, as his Honour said, “that arise in a given case”.

51. In the present case, there was no evidence of the first two and the last of the matters referred to by the applicant. It is not apparent in those circumstances, how a reference to them could provide any benefit to the applicant. As to the third of the matters, being the assessment of the truthfulness, completeness and reliability of the assistance, it was clear that the evidence of the co-offender’s name and address was truthful and reliable.

52. On the paucity of material in relation to assistance, we consider that what was said by the sentencing judge amounted to substantial compliance with the intended operation of s 23: Hutchinson v R [2014] NSWCCA 317 at [33]. In that regard, it is to be remembered that the ROS followed almost immediately after the exchange between the sentencing judge and the applicant’s counsel (at [42] above).

53. We would reject this ground.

Ground 2: The sentencing judge erred in assessing the value of the applicant's assistance at 5%.

Submissions

54. The applicant submitted that a discount of 15% for the assistance was appropriate because:

• The co-offender’s name and address was not otherwise known;

• There was no suggestion that the name provided was untruthful or mistaken;

• It was given despite a fear of consequences for both the applicant and his family;

• The police decision not to prosecute the alleged co-offender does not in any way diminish the weight that ought to be given to the assistance.

55. The Crown submitted that the assessment of the discount involves a broad discretionary judgment, and that a House v The King error would need to be demonstrated. The Crown submitted that the assistance was not timely, its usefulness was limited, there was no offer to give evidence in any prosecution of the co-offender, and there was no evidence of any danger or risk to the applicant or his family as a result of giving the assistance.

Determination

56. The applicant correctly submitted that determining the appropriate discount for assistance involves an evaluative judgment and a discretionary determination; reliance was placed on what was said by Hamill J (Bathurst CJ and N Adams J agreeing) in Hraiki v R [2019] NSWCCA 140 at [16]; and that the process is neither a rigid nor a mathematical exercise, nor an exercise where some notional tariff might be discernible from other cases, in reliance on Hutchinson v R [2014] NSWCCA 317 at [32].

57. Error will only be established if a determination of 5% was not open to the sentencing judge’s discretion.

58. In our view, a discount of 5% was open to the sentencing judge for the following reasons. First, the offer of assistance came only after a suggestion by the sentencing judge. When the matter was first raised, the applicant’s counsel told the sentencing judge that the applicant had not assisted the police and that counsel did not think he intended to do so. Subsequently, after conferring with the applicant, the applicant’s counsel led evidence from the applicant of the co-offender’s first name only. The information was supplemented during cross-examination when the co-offender’s surname was provided and an address was given.

59. Secondly, the offer of assistance was made one year after the offences were committed. There was no offer by the applicant to give evidence in the event the co-offender was charged. Thirdly, the identity of the co-offender was already known to police, as is apparent from the facts sheet relied upon at the prosecution of the young person prior to the sentencing of the applicant. Fourthly, the identification of the person said to be the co-offender did not result in that person being charged, following his denial of involvement in the incident. The significance and usefulness of the assistance was minimal, particularly in the absence of any advice from the police concerning the usefulness of the information provided. Finally, there was no evidence of any risk or danger to the applicant or his family as a result of providing the co-offender’s name and address.

60. It is not without relevance that, when the sentencing judge suggested a small discount might be appropriate, the applicant’s counsel did not dissent, but said only,

If nothing else, it shows he’s tractable. It shows that he’s realised the seriousness of it all and he’s not treating anything lightly.

61. The suggestion at the hearing of the appeal that a discount of 15% ought to have been accorded for the assistance only highlights the difficulty for the applicant in demonstrating that a finding of 5% was not open to the sentencing judge.

62. We would reject this ground.

Ground 4:   The disparity between the applicant's sentence as compared with the sentence imposed on his co-offender gives rise to a justifiable sense of grievance

63. The young person was dealt with by a magistrate in the Children’s Court on 12 October 2020. The Magistrate had before him a background report from Youth Justice and a police statement of facts that differed somewhat from the facts before the sentencing judge.

64. The report from Youth Justice said that the young person lacked consequential thinking, and presented as naïve and easily led, as indicated by her actions to follow the instructions of the applicant in scheduling a meeting with a stranger who had made several sexual advances towards her via Instagram. The report disclosed that she suffered from anxiety and depression with seven attempts at suicide. She had been sexually assaulted on three occasions.

65. The Magistrate noted that she was also charged with robbery in company which was a very serious offence. He referred to the applicant as an adult, and a person upon whom she should have been able to rely to make better decisions than she did. He considered the offence was aggravated by a significant amount of planning.

66. The Magistrate noted her mental health issues and trauma, and also noted the support she had from her mother and other family members. He thought she had good prospects of rehabilitation, particularly if she undertook assistance for her mental health.

67. It was in those circumstances that he placed her on a probation order for a 12- month period.

Submissions

68. The applicant submitted that although the Henry guideline judgment was not specifically addressed to the sentencing of offenders under 18 years of age, there is no error in using the guideline judgment as a starting point when sentencing a child. The applicant submitted that there were matters that both favoured the young person and matters which favoured the applicant, but that the wide disparity between the applicant’s sentence as compared with the sentence imposed on the young person gives rise to a justifiable sense of grievance.

69. The Crown submitted that it is the lack of justification for any disparity that gives rise to the unequal application of the law, and that it is the unjustifiable nature of the disparity that is ground for intervention.

70. The Crown pointed to the significant difference in the sentencing regime of the Children’s Court, where the greater emphasis is on rehabilitation. The Crown submitted that relevant differences between the young person and the applicant justified the difference in the sentences each received.

Determination

71. The only reference to parity at the sentence hearing appeared in the Crown’s written submissions. Those submissions relevantly said:

Parity

The YP appeared for sentence on 12 October 2020 at the Parramatta Children’s Court. She was sentenced to a 12 month probation order – without conviction pursuant to s 33(1)(e) [of the Children (Criminal Proceedings) Act 1987 (NSW)]. The Crown submits that parity does not apply in this matter.

72. Counsel for the applicant said nothing about parity or about the charge brought against the applicant’s sister.

73. In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 the joint judgment of French CJ, Crennan and Kiefel JJ said at [31]:

…  The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.

(Citations omitted.)

74. In Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460, Johnson J (with whom McClellan CJ at CL and Rothman J agreed), made clear at [80]-[81] that an appeal in this Court is not the occasion for the revision and reformulation of the case presented below, and that this Court will not likely entertain arguments that could have been put, but were not advanced on the plea.

75. In the present case, nothing was said on behalf of the applicant about the sentence that was imposed upon the young person, nor in relation to any matters of parity which might flow from the imposition of that sentence. No reason has been put forward to justify why this Court should now entertain a parity argument that was not raised in the Court below.

76. In any event, judged at an objective level, the applicant could have no justifiable sense of grievance arising from the difference in the sentence he received from that which was given to the young person. She was aged 16 at the time. She had no prior criminal record, she had serious mental health issues and was said to have been easily led by the applicant.

77. On the other hand, the applicant was aged 20 at the time, he already had a criminal record for having goods in custody suspected of being stolen and for possession of a prohibited drug. For the latter offence, he was given a conditional release order which was in place at the time of the present offending. That was a matter of aggravation. Moreover, he engaged in the physical violence towards the victim, and he it was who demanded the complainant’s phone and wallet. Finally, two offences on a Form 1 were taken into account when the applicant was sentenced for the robbery in company.

78. We would reject this ground.

Conclusion

79. The Court makes the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

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Amendments

20 May 2022 - [7] amended to comply with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)

Decision last updated: 20 May 2022