Yildiz v R

[2020] NSWCCA 69

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Yildiz v R [2020] NSWCCA 69

Hearing dates:

16 March 2020

Date of orders:

9 April 2020

Decision date:

09 April 2020

Before:

Simpson AJA at [1];
Rothman J at [17];
N Adams J at [1]

Decision:

(1)   Leave to appeal granted;

(2)   Appeal allowed;

(3)   The sentence imposed by the District Court on 10 July 2019 on the applicant is quashed and in lieu thereof the applicant

is sentenced to a non-parole period of 14 months, commencing on 10 February 2019 and expiring on 9 April 2020, with the

remainder of term of a further 14 months, concluding 9 June 2021;

(4)   The applicant is first eligible for parole on 9 April 2020.

Catchwords:

CRIME – SENTENCE APPEAL – joint criminal enterprise robbery – role in crime – sentencing judge erred in applying Guideline Judgment in Henry without assessing relative youth of offender – error in denying genuine remorse – objective seriousness assessed on an inference inconsistent with Agreed Facts – sentence quashed – offender re-sentenced – parity assessed.

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

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

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

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

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

Howard v R [2019] NSWCCA 109

Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60

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

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

Legge v Regina [2007] NSWCCA 244

Markarian v The Queen (2005) 228 CLR 352; [2005] HCA 25

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Munda v The State of Western Australia (2013) 249 CLR 600; [2013] HCA 38

Newman (a pseudonym) v R [2019] NSWCCA 157

R v El Sayah; R v Idaayen; R v Mansaray [2018] NSWCCA 64

R v Henry (1999) 46 NSWLR 346; [1999] NSWCA 111

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131

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

Wong v the Queen (2001) 207 CLR 584; [2001] HCA 64

Zreika v R (2012) 223 A Crim R 460

Category:

Principal judgment

Parties:

Oznur Yildiz (Applicant)
Regina (Respondent)

Representation:

Counsel:
P Coady (Applicant)
E Wilkins SC (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2017/231585

Publication restriction:

(1) Pursuant to the terms of s 8(1)(a), (c), (d) and (e) of the Court Suppression and Non-publication Orders Act 2010 (NSW), the name of the co-offender and any matter identifying the co-offender is suppressed and shall not be published.

(2) The co-offender will be referred to as ADP.

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 423

Date of Decision:

10 July 2019

Before:

Colefax SC DCJ

File Number(s):

2017/231585

Judgment

1. SIMPSON AJA AND N ADAMS J: The relevant facts in this matter are adequately set out in the judgment of Rothman J, which we have had the advantage of reading in draft. For the following reasons, we agree with the orders proposed by his Honour.

2. The applicant was 18 years and 5 months at the time of the offence and had no prior convictions. The principles with respect to sentencing young offenders have been stated many times by this court: KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51; BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159. Recently, in Howard v R [2019] NSWCCA 109 Fullerton J (with whom Macfarlan JA agreed, Bellew J in dissent) observed at [13]:

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

3. Her Honour then went on at [14] to state the following:

“While I accept that in some cases it may be necessary to adduce expert evidence to establish that an offender’s emotional, sexual or physical immaturity was causally related to particular offending …, I would venture to suggest that in most cases it is the offending conduct itself, coupled with the age of a youthful offender that allows for the inference to be drawn that the commission of an unpremeditated or unplanned criminal act was likely to be responsive to the interplay of a young person's immaturity and a compromised capacity for mature decision-making.”

4. Consistent with these principles, the applicant’s counsel had submitted to the sentencing judge that his Honour should give “some weight” to the applicant’s youth, inexperience and “limited maturity”. The Crown opposed this course submitting that youth of an offender is already a factor in the Henry guideline: R v Henry (1999) 46 NSWLR 346; [1999] NSWCA 111. The sentencing judge responded by observing: “Well the guideline assumes that the offender is young…. [i]t’s built into Henry”. When the applicant’s counsel sought to make submissions in reply on this issue, he was prevented from doing so on the basis that such a submission was not “in reply”.

5. Despite the time spent on the relevance of the applicant’s youth during the proceedings on sentence, his Honour made no finding in relation to it; he simply noted the applicant’s age at [4] and [35] and found special circumstances on the basis of the applicant’s youth (and the fact that this was her first time in custody): s 44(2) of the Sentencing Act. Nor was any reference ultimately made to the Henry Guideline.

6. For an applicant to succeed in this court, error must be established in the Reasons; not the transcript of proceedings on sentence. Despite this, it will sometimes be necessary to have regard to the arguments that were put to the court, such as to consider an allegation of a denial of procedural fairness, or to ascertain whether a particular submission was put to a sentencing judge: Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44. Noting what was put to his Honour on the question of the applicant’s youth, we are satisfied that his Honour took the view that youth was already a factor in the Henry Guideline and not a further mitigating factor. As N Adams J observed in R v El Sayah; R v Idaayen; R v Mansaray [2018] NSWCCA 64 at [78]:

“The decision in R v Henry indicates that sentences for armed robbery offences having the seven nominated characteristics (at [162]) should generally fall within the range of 4 to 5 years. One of those seven characteristics is a “[y]oung offender with no or little criminal history.” In R v Faaoloii, Schaafhausen & Tuala [2016] NSWCCA 263 at [72], RS Hulme AJ, with whom Hall and McCallum JJ agreed, noted that “the description in R v Henry of ‘young offender with no or little criminal history’ is so broad that it cannot be definitive of what, vis-à-vis the offender, the court is to consider.” I agree with this observation by his Honour.”

7. The applicant’s youth was an important subjective feature in her case. Although it was not inevitable that the sentencing judge would have concluded that some allowance ought to have been made for it, the sentencing judge failed to acknowledge it in any meaningful way. That amounts to error in the sentencing process. As Basten JA observed in Newman (a pseudonym) v R [2019] NSWCCA 157 (with whom Hamill and Lonergan JJ agreed), an error is “material”, in the sense of invalidating the exercise of the discretion, if it has the “capacity to influence the sentence” as opposed to demonstrating that it had an “actual effect on the sentence imposed” (Newman at [11]; citing Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37).

8. We would uphold ground 1. Error having been established in the sentencing process the court is required to discharge the obligation imposed by s 6(3) of the Criminal Appeal Act 1912 (NSW) by an independent exercise of the sentencing discretion: Kentwell (at [43]).

9. We would adopt most of the findings made by the sentencing judge save as for in three respects. First, we are satisfied that the applicant’s youth was a mitigating factor, particularly in the context of her lack of previous convictions.

10. Secondly, we would make a different finding with regard to remorse. The sentencing judge took an unfavourable view of the applicant’s expressed remorse. He did this because of the answer she first gave when asked if she were able to apologise to Mr Tannous, when she said that “of course I am angry at him for what he did to me in the bathroom”. The transcript shows that the applicant’s answer was cut off before it was completed. Subsequent answers were more complete. The sentencing judge appears to have based his finding on remorse on a single incomplete and interrupted answer, without regard to more considered and complete evidence given by the applicant in court.

11. Although the finding was one that was open to his Honour based on his observation of the applicant while giving evidence, the finding does not reflect, nor take into account, the subsequent answers. Nor did it (nor could it) take into account the evidence received in this Court in the event of resentencing. A number of affidavits were read “on the usual basis” at the hearing of this application. In the applicant’s affidavit affirmed 6 March 2020 she set out relevant matters in the event of re-sentence including her employment in custody, her classification, progress and conduct in custody and further expressions of remorse. We have had regard to all of that material on re-sentence.

12. Third, the sentencing judge took into account that the applicant expected some level of violence. The Agreed Statement of Facts included the following:

“The accused is to be sentenced on the basis that she participated in a joint criminal enterprise to commit a robbery in company and that she did not have knowledge that a pistol was to be produced by one of the men involved. The Crown accepts that the offender, Ms Yildiz, had no knowledge whatsoever that a weapon of any kind was going to be used in the course of the robbery in company. Ms Yildiz believed that Mr Tannous would be verbally threatened, placed in fear and told to go.”

13. Despite this, his Honour observed at [29]-[30]:

“There is no suggestion, however, Ms Yildiz, that you were aware that a firearm (or a pistol) was to be used in the robbery which you had planned with your other co‑offenders.

However, I am satisfied beyond reasonable doubt that you were aware that it was at least on the cards that some violence would be inflicted on Mr Tannous. When you began to have that understanding I am unable to say - possibly when you sent the text message saying, "I full had to touch his dick" or, at the latest, when you observed your co‑offenders kicking and punching and you tried to joined in.”

14. This was, arguably at least, contrary to the explicit concession in the agreed statement of facts that the applicant was unaware of the presence of the weapon. The applicant gave evidence at her proceedings on sentence and was not asked about her expectation of violence (other than that arising from the use of the weapon). The basis upon which his Honour was satisfied beyond reasonable doubt that the applicant was aware that violence was “at least on the cards” was that she had texted her co-offenders after she left the hotel that “I full on had to touch his dick”, and the fact that the Agreed Facts included this sentence in the context of the assault on the victim by the co-offenders:

“The offender was standing behind the males and kicked out at Mr Tannous once.”

15. We are not satisfied that it was open to his Honour to have made the finding he did on the material before him. We would re-sentence the applicant consistently with the Agreed Facts: the applicant believed that the victim would be verbally abused, placed in fear and told to go.

16. Having regard to these matters and the other relevant factors on sentence referred to by Rothman J, we agree with the orders proposed by Rothman J.

17. ROTHMAN J: The Applicant, Oznur Yildiz, seeks leave to appeal a sentence imposed upon her by Colefax SC DCJ in the District Court on 10 July 2019 and, if leave be granted, seeks to have the sentence imposed upon her quashed and a less severe sentence imposed. The Applicant pleaded guilty to the offence of robbery in company, which is a contravention of s 97(1) of the Crimes Act 1900 (NSW) and for which is prescribed a maximum sentence of 20 years’ imprisonment. The District Court sentenced the Applicant to a head sentence of 3 years’ imprisonment, including a non-parole period of 18 months, each commencing 10 April 2019.

18. Initially, the Applicant was charged with robbery while armed with a dangerous weapon; and aggravated take, drive and detain. Those offences were not pursued and the Applicant pleaded guilty to the offence, which plea was accepted in full satisfaction of all charges. That offer of a plea of guilty was made at the earliest opportunity.

19. The proceedings on Sentence were heard before the sentencing judge on 10 July 2019 and his Honour issued his remarks ex tempore, immediately thereafter. In the course of the sentence proceedings, the Crown tendered a sentence bundle (Exhibit A on Sentence) which included an Agreed Statement of Facts and a Victim Impact Statement.

Grounds of Appeal

20. The Applicant raises two grounds of appeal, each of which is to be taken into account in the application for leave to appeal. Those grounds are:

1. Ground 1: His Honour failed to take into account a relevant factor in sentencing, being the Applicant's youth;

2. Ground 2: The Sentence is manifestly excessive, taking into account the facts of the case.

Facts

21. The Applicant was 18 years and 5 months old at the time of the offence on 28 July 2017. She did not know her co-offenders well. Her co-offenders were three young men; known as Abdullah, Ramin and Monty, and a young woman, ADP (a pseudonym). ADP was aged 21 at the time of the offence.

22. The Applicant and her co-offenders formed an agreement that they would rob a man coming out of a brothel. On 28 July 2017, at approximately 1 AM, the five of them travelled to Ma Belle Cheri, a brothel in Granville.

23. At about 1:30 AM, the victim, Mr Tannous, who was approximately 58 years of age, was driving from the brothels' carpark. The Applicant waved down the victim, while ADP stood alongside her in the driveway. The victim stopped his car and the Applicant informed him that she and ADP had been kicked out of their house and had nowhere to stay. She asked him whether they could stay with him. The victim indicated that he would find a room and the Applicant and ADP got into his car and drove away.

24. The Applicant then used her mobile phone to communicate with Monty, asking him to follow the victims' car and informing him that the victim would withdraw money. Monty told the Applicant to drive the victim to Merrylands Park.

25. The Applicant asked the victim to buy her some cocaine. She told him that there would be no sexual contact between them unless she had some cocaine. The victim agreed to provide money, so that she could buy cocaine and thereby have sex with him.

26. The victim drove the Applicant and ADP to Parramatta City Motel and booked a room. The three went into the room together and the victim took the Applicant into the bathroom and shut the door. He specifically asked her whether she would have sexual relations with him, if he bought her the drugs.

27. In the course of this conversation, the victim put his hands inside the Applicant's tights and underwear and felt her vagina. He made an offer to have sex with her at that time. The Applicant repeated that she would not have sex with him until she had consumed the drugs. He placed her hand on his penis, after which he said that he would go with her to get the drugs.

28. They left the hotel, at which point the Applicant sent a message to the male co-offenders of the group, saying, "Follow us". The victim drove to a service station and withdrew $200 cash. As he was doing so, the Applicant sent another message to the group saying, "He's cashing out. We’re coming to Merrylands Pools".

29. In the meantime, the three other co-offenders had already driven to Merrylands Pools. One remained in a car in the car park and the other two alighted.

30. When the victim, the Applicant and ADP arrived at the car park, the Applicant walked to the car, by this time containing only one co-offender, returned and told the victim that the person from whom she was purchasing the drugs wished to meet him in order to ensure that "he was not a cop". This, the sentencing judge held, was part of their plan to rob the victim.

31. The victim did as asked and, as he approached the co-offenders' car, he was punched to the right side of his face from behind and then pushed in the back. As a consequence of that push to the back, the victim fell to the ground.

32. The victim was hit and struck by the three male co-offenders. The Applicant, and it seems ADP, stood nearby. The Applicant kicked out at the victim, although she did not make contact and there is no evidence, and certainly no agreement, that she intended to make contact or that the kick was one that appeared as if it was intended to make contact.

33. The victim was kicked repeatedly to his head, body, ribs and back, by the male co-offenders. During this time, those co-offenders were shouting at him.

34. A firearm was produced by one of the co-offenders during the altercation. It is agreed, as a fact, that the Applicant was wholly unaware that one of the co-offenders had possession of a pistol and was wholly unaware that it would be displayed. Indeed, there is no suggestion in the evidence that the Applicant was aware that anyone was in possession of a weapon of any kind and there is agreement that she had no knowledge that a weapon of any kind would be used. Rather, it is agreed the Applicant believed that the victim would be “verbally [sic] threatened, placed in fear and told to go”: Agreed Facts [31].

35. Ultimately, the victim was robbed of a small amount of money, some bank cards and some identification material. The victim was dispossessed of his car keys and the keys were used to lock his car and, then, the keys were thrown away.

36. On 30 June 2017, the Applicant was arrested and charged with the original offences, to which earlier reference has been made. The Applicant was granted bail on 23 August 2017.

37. In the proceedings on Sentence, the Applicant gave evidence. That evidence is to the following effect:

1. The Applicant left school at 17, towards the end of year 11.

2. Following the commission of the offence, the Applicant completed a level III Business Certificate Level at Granville TAFE. She gained entry to a Bachelor of Business at the University of Western Sydney and she completed her first semester with full-time attendance.

3. The Conditions of Bail, binding on the Applicant, were that she was subject to a curfew and reporting conditions. These lasted for approximately one year. It is not suggested that the Applicant breached her Bail and in March 2018, her bail conditions were varied to allow the Applicant to work at McDonald's on night shifts, where she worked until January 2019.

4. The Applicant lived at home with her parents and her younger male sibling. While living at home, she provided a contribution to living expenses of between $50 and $100 per week.

5. The Applicant’s father had been violent to her mother and the Applicant for years in a domestic violence scenario. An Apprehended Violence Order was issued, during the Applicant's conditional liberty on bail.

1. The Applicant's work at McDonald's had shown her that it was not worth trying to obtain money unlawfully and that taking drugs did not work for her. She had not taken drugs since she was released on bail. She has stayed away from associates who take drugs.

2. The Applicant was asked whether she was able to apologise to the victim. The exchange was in the following terms:

“Q:    ma’am, in terms of the victim in this matter, Mr Tannous, who in the end was robbed; and in the end he got bashed; what do you say to Mr Tannous, I mean are you able to apologise to him for your part in what was the robbery in company?

A. I'd like to say that of course I'm angry at him for what he did to me in the bathroom—

Q.    We’re not going into what happened, the facts are the facts. But what can you say to his Honour about Mr Tannous and how you regard what you were part of in terms of how he was treated and robbed?

A.    I put myself in that position and he wouldn't have got robbed or bashed if I didn't approach him in the first place. So I take full responsibility for that." (Tcpt, proceedings on Sentence, 10 July 2019, p 11).

8. The transcript does not reveal whether a semi-colon could have been placed after the word “that” in the initial response. I am in that respect guided by the reaction of the sentencing judge, who heard the evidence.

In the course of cross-examination, the following exchange occurred:

"Q.    You, your expression, what you said earlier about how you feel towards Mr Tannous. I suggest to you, you say that now not because you actually feel but it's what you feel you should say because of the serious penalty that faces you. Isn't that the position?

A.    No. And I couldn't finish my sentence before but; like I just wanted to say that what he did wasn't right, but still I put myself in that position. I approached him. I chose to hang out with those people. I chose to just go along with whatever they said. And I'm sorry for that. It's my responsibility. It's my fault. Because he wouldn't have went [sic] to the park, if I didn't approach him and took him there." (Tcpt, proceedings on Sentence, 10 July 2019, p 19)

9. The Applicant indicated her mental health had improved after attending a psychologist. A Report from the psychologist was tendered.

10. The Applicant had first consumed marijuana at 16 years of age and would occasionally have a joint thereafter. In the period leading up to the offending, the Applicant was taking marijuana, cocaine, MDMA and Xanax with the co-offender Ramin, whom she had known for about a month. At the time of the offending, the Applicant had been under the influence of drugs.

11. Apart from the Crown bundle, consisting of the usual matters relevant to sentencing, the Crown relied upon a Victim Impact Statement, as already noted. That Victim Impact Statement detailed the psychological consequences of the offending on the victim.

38. As already stated, the sentencing judge imposed full-time imprisonment for a period of three years commencing 10 April 2019 and concluding on 9 April 2022, with a non-parole period of 18 months, concluding 9 October 2020.

Sentencing Judge's Comments

39. The ex tempore Judgment on Sentence is before the Court. The sentencing judge had regard to the judgment in R v Henry (1999) 46 NSWLR 346; [1999] NSWCA 111, which is a Guideline Judgment of the Court (Spigelman CJ, Wood CJ at CL, Newman, Hulme and Simpson JJ). His Honour found that the objective seriousness of the offence in question was slightly below the mid-range; and referred to the Applicant's significant role and conduct in carrying out the offence.

40. The sentencing judge took into account the extent of the injury to the victim and, in doing so, the Victim Impact Statement and the psychological consequences to the victim noted in that Statement. Nevertheless, his Honour, correctly, did not consider this to be an additional circumstance of aggravation.

41. The sentencing judge also took into account a number of subjective matters which applied to the Applicant. They were:

1. Her age;

2. That she left school after year 11;

3. That she completed a Business Certificate at TAFE and was subsequently admitted to a degree course at the University of Western Sydney;

4. That the Applicant had no prior convictions and was entitled to the leniency to be shown a first offender;

5. That the Applicant's upbringing was marked by some degree of violence, although there was, in the sentencing judge's view, insufficient evidence to determine the extent and impact of the violence;

6. Further to the immediately preceding sub- paragraph, the sentencing judge took the view that there was insufficient evidence to establish a dysfunctional upbringing to which the High Court referred in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37;

7. Took the view that the Applicant was not remorseful, primarily because of the answer given by the Applicant at p 11 of the tcpt which, in the view of the sentencing judge, indicated that the Applicant was not genuinely remorseful;

8. The sentencing judge also found that the Applicant had "reasonable" prospects of rehabilitation; and

9. The Applicant had adhered to strict bail conditions for at least 12 months, for which the sentencing judge allowed, it seems, the backdating of the prison term by two months. In all, given approximately one month of custody from July to August 2017, the sentencing judge backdated the sentence imposed by three months.

42. The sentencing judge also found that there existed special circumstances, based on the Applicant's age and the fact that this was the first time that she would be in custody. Further, the sentencing judge afforded a 25% discount for the plea of guilty in the Local Court, being a discount at the highest level for a plea at the earliest appropriate opportunity.

Submissions and Consideration

43. Ground 1

44. The first ground of appeal, as recited above, is the failure of the sentencing judge to take into account a relevant factor, namely, the Applicant's youth. The ground, as expressed, is plainly not made out. Rather, what was sought to be relied upon was the alleged misapplication of the Guideline Judgment in Henry, supra. In that regard, it is submitted that, as a consequence of the misapplication of the Guideline Judgment in Henry, the sentencing judge gave insufficient regard to youth, as a factor in fixing and imposing the sentence.

45. The Crown submits, correctly, that the judge expressly regarded age as a factor in the sentencing process and had regard to it in finding special circumstances, the reduced non-parole period being significantly shorter than the prescribed ratio would otherwise require.

46. The reasons for judgment in Henry cited a number of characteristics that pertained to the offence of armed robbery:

1. young offender with no or limited criminal history;

2. weapon like a knife capable of killing or inflicting serious injury;

3. limited degree of planning;

4. limited, if any, actual violence but a real threat thereof;

5. victim in a vulnerable position such as a shopkeeper or taxi driver;

6. small amount taken;

7. plea of guilty, the significance of which is limited by a strong Crown case.

47. The Court, in Henry, suggested a range of 4 to 5 years’ imprisonment, because there should not be a fixed starting point as a result of the features being inherently variable and those factors will not comprise all the factors relevant to the sentencing process.

48. As a consequence, the mere fact, and it is the fact, that the Guideline Judgment in Henry takes into account that the sentence is being imposed on a "young offender", with no or little criminal history, does not mean that youth is an irrelevant factor. Nor does it mean that youth is not a factor that should be considered in the overall determination of the sentence to be imposed.

49. There is a fundamental difference between a 14-year-old that is engaged in a robbery and a 20-year-old that is engaged in the same robbery. Thus, the particular age of any offender must be a factor the relevance of which is determined when applying the Henry Guideline. Furthermore, the use of a weapon; the kind of weapon; and the level of injury are all factors that are extraordinarily variable and should be considered in every separate assessment. Similarly, the plea of guilty is a factor that must be independently assessed by any sentencing judge.

50. I do not suggest that the Guideline Judgment in Henry is suggesting that a plea of guilty, taken at the earliest opportunity, should receive something less than the highest level of discount (25%), only because it was occasioned by a strong Crown case. The judgment in Henry was delivered before the judgment in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, which examined the appropriate discounts for the utilitarian value of the plea of guilty and which, at [161] (per Spigelman CJ), commented:

51. “In … Henry at [162], the Court was concerned with a guilty plea of limited value. The guidelines for the offences considered in those cases should be understood to involve a late plea of guilty, for purposes of the application of the guideline promulgated in these reasons.”

52. Far more importantly is that the Guideline Judgment in Henry is a guideline. It is not a prescribed "range" or pattern of sentencing. (The difference in which should be taken to refer to the discussion by Bell J, in dissent, in Munda v The State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [95]).

53. As stated by Spigelman CJ, in agreeing with the substantial judgment of Simpson J (as the presiding judge then was) in Legge v Regina [2007] NSWCCA 244:

54. “[58] This, as Simpson J has noted, is quite inconsistent with the basis or the guideline judgment as outlined in Jurisic at the paragraphs to which her Honour has referred. It is also inconsistent with the extended treatment of the nature of the guideline in Henry itself, particularly at paragraphs 12 through to 42. Subsequently in the case of R v Whyte (2002) 55 NSWLR 252 this Court affirmed the basic nature of the guidelines as a check, a guide or an indicator or as a sounding board (see at [112]-[116]. Further Whyte contains a detailed analysis of the inter-relationship, in the context of formulating and applying the guideline, between the principle of individualised justice and the principle of consistency (at [143]-[189]).

55. [59]   The manner in which his Honour appears to have applied the guideline would, if it were valid, constitute an impermissible confinement of the exercise of the sentencing discretion. His Honour appears to have proceeded on that basis. The authorities in this Court make it quite clear that a guideline is not a tramline.”

56. The Guideline Judgment is not to be treated as a prescription for the sentence to be imposed, nor as a starting point from which will be deducted items that are relevantly ameliorative or to which will be added factors which are relevantly aggravating. The sentencing process is intuitive and each of the guideposts must be a factor in seeking to achieve the purposes of sentencing adumbrated by s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

57. The principles to be applied in sentencing a young person have been discussed on a number of occasions. Reference was given, in the submissions, to KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 and, particularly, to the comments of McClellan CJ at CL at [22]-[26]; and Howard v R [2019] NSWCCA 109 at [13], per Fullerton J; see also Bellew J at [86]-[91]. McFarlan JA agreed, in Howard, with Fullerton J. The difference in outcome preferred by Bellew J was based upon the application of the principles, to which each judge adhered, to the facts before them.

58. In BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 Hodgson JA discussed the applicability of the reasons in KT and said:

1. The relevance of the youth of an offender to sentencing has been extensively discussed in many cases, including KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 (referred to by Johnson J) and cases referred to in that case. I accept the principles stated in KT at [22] – [26] (quoted by Johnson J at par [74] of his judgment). However, I wish to make three points concerning these principles.

2. 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 R [2008] NSWCCA 158 at [33] – [36].

3. 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). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.

4. Third, I do not think courts should be over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors.

5. I do not suggest that, in all the circumstances of this case, the youth of the offender should be given such weight as to make a large difference in the ultimate outcome; but I would give it some weight, and on that basis favour a substituted sentence a little shorter than that proposed by Johnson J.”

   59. In agreeing with the reasons and orders of Hodgson JA in BP, I made the following additional comments:

6. I confirm my comments in MJ v R, CPD v R [2010] NSWCCA 52, referring, in part, to R v LNT [2005] NSWCCA 307. In MJ v R, CPD v R, supra, I said:

   ‘[70]    Further to the foregoing, I confirm the comments made by me in R v LNT [2005] NSWCCA 307 (with whom Simpson and Johnson JJ agreed) as to the principles to be adopted on the sentencing of young offenders. The Children (Criminal Proceedings) Act 1987 applied to minors and establishes a different regime than for adults. Nevertheless, a person who is 17½ years of age cannot be expected to be treated significantly differently from his co-offender who has turned 18. This does not mean that youth, who are not minors, are not entitled to an assessment of sentence, that takes into account their youth and immaturity: see LNT, supra, at [32] and following, and the cases cited therein.

   [71]    Chronological age of a young offender is not solely the determining factor in deciding how much weight should be attributed to general deterrence, as distinct from the other factors, in assessing an appropriate sentence. Regard must be had to the mental state and circumstances of the offender at the time of the offending: R v AN [2005] NSWCCA 239, per Howie J, with whom James J and I agreed, at [57]. Likewise, the violence of the offence, of itself, does not necessarily establish that the juvenile is acting ‘as an adult’. In sentencing, juveniles (including minors), who act as an adult would, the function of the courts requires deterrence and retribution and they remain, or become, more significant elements in sentencing the youth: R v AN, supra, at [53], citing R v Bus (Court of Criminal Appeal, 3 November 1995, unreported). The test, in those circumstances, is whether the youth has conducted himself or herself in a way that an adult would, and that requires an assessment of the maturity and conduct, not only the degree of violence and the gravity of the offence.’”

   60. As Hodgson JA points out, chronological age is a pointer to maturity, but not decisive. On average, emotional maturity and mature executive functioning does not occur until the early 20s. In some cases, it occurs at a later chronological age than for other persons, but there is a significant difference between the brain maturity of an 18-year-old and a 21-year-old or, indeed, a 23-year-old (at which age most persons achieve full maturity).

   61. Thus, in applying the principles adumbrated by this Court in Henry, one must be mindful of the relative maturity or otherwise of the offender in question. Similarly, in this case, one must take account of the fact that the Applicant was liable for the offence in question as a result of a joint criminal enterprise, which, on the facts that were agreed, did not include the use of a weapon such as a knife, let alone a pistol. More importantly, the adumbration of a number of criteria that have been assumed to be present for the purpose of setting the Guideline Judgment is not intended to be prescriptive and the Court expressly stated as much.

   62. Further again, to add to or subtract from the pattern of sentencing indicated by the guideline by aggravating or ameliorating one or more of the criteria or by adding or subtracting other criteria would be to fall into the same error to which the High Court referred in dealing with the judgment of the Court in R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131: see Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, particularly at [29]. Moreover, it is not permissible to engage in a two-stage or multi-stage process: Markarian v The Queen (2005) 228 CLR 352; [2005] HCA 25, particularly at [38]-[39].

   63. In the sentencing judge's Judgment on Sentence he does not, expressly or otherwise, add to or subtract from the criteria adumbrated by the Court in Henry. Nevertheless, a reading of the reasons, allowing, as I do, for the fact that they were provided ex tempore, does lead to the suspicion that the Guideline Judgment was applied without sufficient attention being directed to the objective and subjective aspects of the Applicant's individual circumstances. Even as a young person, where does the Applicant fit in terms of maturity and the nature of the crime that was committed?

   64. It is clear from the Agreed Facts that the overall crime in question was abhorrent. It is also clear from those facts that the offence was committed for some financial gain (presumably something akin to 1/5 of $200), which was an extraordinarily small amount and resulted from the Applicant becoming an acquaintance of some or all of her co-offenders.

   65. More importantly, from the aspect of the assessment of objective seriousness, the sentencing judge made a finding, at [30], that, while the Applicant was unaware that a firearm or a pistol was to be used in the robbery, she was aware that it was "at least on the cards that some violence would be inflicted on" the victim. That finding is inconsistent with the Agreed Facts.

   66. At [31] of the Agreed Facts, it was agreed that the Applicant "had no knowledge whatsoever that a weapon of any kind was going to be used in the course of the robbery in company" and "believed that [the victim] would be verbally threatened, placed in fear and told to go".

   67. The foregoing agreed fact is inconsistent with the finding that the Applicant was aware that it was at least on the cards that some violence would be inflicted, either at the time of making the agreement that resulted in the joint criminal enterprise, or at the time of its implementation.

   68. The sentencing judge’s conclusion on objective seriousness is significantly affected by that finding, which is inconsistent with the Agreed Facts.

   69. As to the question of youth, there can, as earlier stated, be little doubt that the sentencing judge took into account the youth of the Applicant. Ordinarily, a submission that had the effect of seeking intervention by this Court on the basis that the sentencing judge did not give sufficient weight to a particular factor would be bound to fail.

   70. Nevertheless, the effect of the manner in which the sentencing judge has treated the age of the Applicant has resulted, or would result, in all young persons being treated identically, rather than an appropriate assessment being conducted, bearing in mind the degree of immaturity associated with the offending in question.

   71. In my view, the sentencing judge's treatment of the youth of the Applicant and the finding as to her awareness of the infliction of physical violence significantly affected the sentencing judge's classification of the Applicant's offending in terms of its objective seriousness and error has been disclosed.

   72. As a consequence of identifiable error being disclosed, it is unnecessary and, on one view, impermissible to determine whether there is manifest excess. As has been made clear on a number of occasions, and as was made clear in House v The King (1936) 55 CLR 499; [1936] HCA 40, error that is required to be disclosed in order for an appellate court to intervene is either identifiable error or manifest error.

   73. It is never sufficient, in an appeal that is not a rehearing, for the judges comprising the appellate court to intervene on the basis that, had they been in the position of the primary judge, they would have taken a different course than the primary judge. For the error to be identifiable, it must be one in which the judge acts upon a wrong principle; allows extraneous or irrelevant matters to guide or affect the judgment; mistakes the facts; or fails to take into account some material consideration.

   74. However, where it is not clear or disclosed that an error of principle or one of the above classes of error has been disclosed, then the result that has been reached may be unreasonable or plainly unjust and the appellate court is entitled to infer that there has been a failure properly to exercise the discretion reposed in the court at first instance.

   75. Of course, the identified error may not account for the entire error manifest in the result. Nevertheless, given the duty on the Court to re-sentence, in accordance with principle, once error has been determined, it is unnecessary to determine whether the sentence imposed by his Honour was "manifestly excessive", which is the second ground of appeal.

   76. Notwithstanding that it is unnecessary to deal with manifest excess, as a ground of appeal, some comment should be made on some of the findings of fact, particularly the finding of fact which gave rise to a view that the applicant was aware that it was on the cards that some violence would be inflicted on the victim. Further, the sentencing judge's finding as to remorse needs comment.

   77. Earlier, reference was made to these remarks by his Honour and I recited the exchange in the examination of the Applicant about displaying remorse. The sentencing judge took the view that the answer provided by the Applicant (Tcpt, 10 July 2019, p 11) disclosed, in his Honour's words, that the Applicant was not "genuinely remorseful". The sentencing judge did so, expressly, because of the "spontaneous first response to the question". (Judgment on Sentence, at [46] and [45]).

   78. There is a limit to the manner in which demeanour can be utilised in a situation such as that before his Honour. It is clear from his Honour’s remarks that it was the content of the answer, rather than the demeanour, that affected his assessment of the credibility of the Applicant and whether she was (and is) genuinely remorseful.

   79. In my view the first answer (Tcpt, p 11, l 25) was not completed. The Applicant was interrupted. Further, it is clear in the very next answer what the attitude of the Applicant was to the bashing and robbery. If there were any doubt about the Applicant's attitude it was clarified in cross-examination (Tcpt, p 19, l 14-28).

   80. The earlier interrupted answer is also consistent with the text message sent by the Applicant to her co-offenders about the sexual conduct that occurred in the bathroom. On the view I take of this evidence, it seems to me that the Applicant was being wholly genuine about her remorse for having been part of the bashing and robbery of the victim, but also her disgust at the sexual conduct towards her, bearing in mind her understanding that she, in every sense, invited it, expressly or implicitly.

   81. As a consequence, I take a different view as to the genuineness of the remorse shown and I consider that error is disclosed.

Resentencing

82. As a result of the finding of error and the duty on the Court, explained by the High Court in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, the Court is required to re-sentence the applicant. I confirm the findings of the sentencing judge, other than those already mentioned.

83. In relation to those already mentioned, I find that the offence in question disclosed a degree of immaturity of a young person whose executive functioning, as a result of her immaturity, did not allow her to understand the full consequences of the conduct in which she then engaged. I take her youth into account in determining the sentence to be imposed.

84. The Applicant is liable for the offence on the basis of joint criminal enterprise. As agreed, she was unaware that any weapon of any kind would be utilised or that actual violence would be inflicted. There is no suggestion that her "kicking out" was an attempt to injure or harm the victim. The Agreed Facts do not suggest that any contact was made or that there was any attempt to make contact.

85. As the sentencing judge noted, the offence in totality is a violent offence of robbery against an innocent person, previously unknown to the co-offenders. Nevertheless, once one bears in mind the lack of awareness of the Applicant as to the use of a weapon of any kind and the lack of awareness that any actual assault would occur, the objective seriousness of the Applicant’s offence is at a lower level than that which was indicated by the sentencing judge.

86. I take the view that the Applicant is genuinely remorseful. Her evidence is to that effect and the answers she gave, to which earlier reference has been made, show a genuine and truthful expression of how and what she felt about the whole process. That truthful expression of opinion included her anger and/or disgust at the sexual contact that occurred, albeit brought on her by her own conduct. The Court is now in a position where it is aware of the conduct of the Applicant in prison since that time. That conduct corroborates her good prospects of rehabilitation and supports the view that there was and is genuine remorse.

87. Since the offence and whilst in prison, she has not taken drugs. That continued while she was on bail. Further she has developed sufficient insight to realise that she is required to stay away from associates who do consume drugs.

88. The maximum penalty for the offence in question is 20 years' imprisonment. As already stated, the Guideline Judgment in Henry at [162]-[165] held that offences meeting the criteria adumbrated earlier in that judgment should fall within a head sentence of 4 to 5 years. I utilise the maximum sentence as a guidepost and treat the Guideline Judgment in Henry in the same or similar manner.

89. The Applicant has no criminal history, but for this offence. There is, on the evidence now before the Court, no real prospects of reoffending and specific deterrence does not form a significant factor in the fixing of this sentence. As earlier stated the prospects of rehabilitation are good, if not excellent. In part, rehabilitation has been achieved, or is in the process of being achieved.

90. Further, as earlier stated, the Applicant has shown genuine remorse, not only in her evidence, nor confined to the plea of guilty, but in her subsequent behaviour.

91. The Applicant had an unsettling upbringing, which involved abuse by her father, against whom, as earlier stated, an Apprehended Violence Order was issued, while the Applicant was on bail. The Applicant has attended a psychologist for issues associated with anxiety and the report of Forensic Psychologist, Stephanie Benjamin, dated 2 March 2020, is before the Court. Also before the Court is the Applicant's Corrective Services Inmate Profile, which corroborates the rehabilitation of the offender.

92. The forensic psychological report of Stephanie Benjamin, of Duffy Robilliard, is, as mentioned, before the Court. It recites the family history of the Applicant including her social history. The Applicant did not, in meeting with the psychologist, seek, at any stage, to minimise or rationalise her involvement in the offence. In so doing, the Applicant acknowledged that the victim was a vulnerable person and that she felt "bad" and "sorry" for him and did so by placing herself in the position of the victim were it to have happened to her.

93. I accept that the Applicant had no significant history of antisocial or defiant behaviour, which is reflected in the earlier mentioned lack of a criminal history. Further, her association with her co-offenders was for a very short duration.

94. As mentioned, one of the co-offenders was ADP. ADP was 21 at the time of the offence. ADP’s role in the offending was not as central as was the role of the Applicant, but it was not much less in terms of its objective seriousness.

95. The Agreed Facts that applied to ADP, relevantly, do not disclose any lack of awareness of the use of a weapon or the infliction of violence. ADP received an Intensive Corrections Order (“ICO”) of 21 months' duration, after allowing a 50% discount for the plea of guilty at the earliest opportunity and assistance to the authorities. Adding back in, to the extent permissible, the additional 25% discount for assistance, the co-offender's sentence was an ICO of 31.5 months (after deducting 25% for the earliest plea of guilty).

96. There is a significant degree of leniency associated with the imposition of an ICO as the sentence, rather than the imposition of full-time custody.

97. The co-offender, ADP, was, because of her older age, presumably, more mature and not entitled, as significantly, to leniency associated with her youth. Like the Applicant, ADP is entitled to the leniency afforded a first time offender. Before dealing with the sentence, it is necessary briefly to recite the principles on sentencing.

98. Sentencing is a process of intuitive synthesis. A sentencing judge assesses the objective seriousness and subjective circumstances of the offence and the offender and, intuitively, synthesises those factors to impose a sentence that seeks to fulfil the purposes of sentencing.

99. Those purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which expand the description afforded the purposes by the common law. The plurality (Mason CJ, Brennan, Dawson and Toohey JJ) in the High Court, in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14, referred to the purposes of criminal punishment being various and including "protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform."

100. As the High Court noted, those purposes overlap and cannot be considered in isolation. Each is a guidepost to the appropriate sentence but sometimes, and I dare say often, they may point in different directions.

101. Over and above the foregoing, even a sentence that is within the pattern of sentencing or the range of sentences that could have been imposed, needs to reflect appropriate parity in the sentencing regime. As the courts have sought to explain, the parity principle in the process of sentencing is an expression of the notion of equal justice, which is fundamental to any rational and fair system of criminal justice. It requires, as the High Court stated in Wong v the Queen (2001) 207 CLR 584 at 608, [65]; [2001] HCA 64, "identity of outcome in cases that are relevantly identical" and "different outcomes in cases that are different in some relevant respect". (Emphasis in original, per Gaudron Gummow and Hayne JJ).

102. As the plurality judgment in the High Court in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; said:

1. … Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’. It finds expression in the ‘parity principle’ which requires that like offenders should be treated in a like manner. As with the norm of ‘equal justice’, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.

2. General concepts of ‘systematic fairness’ and ‘reasonable consistency’ in sentencing, as an aspect of the administration of federal criminal justice, were discussed in Hili v The Queen. They apply to persons charged with similar offences arising out of unrelated events. The consistency they require is ‘consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence.’ That kind of general consistency is maintained by the decisions of intermediate courts of appeal. The consistency required by the parity principle is focussed on the particular case. It applies to the punishment of .co-offenders’, albeit the limits of that term have not been defined with precision.” (Footnotes omitted.)

   103. Further discussion of the foregoing principles and the need to ensure an appropriate or rational difference between co-offenders was discussed by this Court in Jimmy v The Queen (2010) 77 NSWLR 540; [2010] NSWCCA 60, which included a discussion on the practical difficulties and limitations of comparing similar but different crimes.

   104. It is necessary for the Court, on appeal, to impose a sentence which reflects a result where the difference in the sentence imposed upon the Applicant and ADP is appropriate and rational.

   105. For all of the foregoing reasons, I would commence the starting sentence at about the starting point from which ADP’s sentence commenced. However, I take the view that, the more central role of the Applicant in the offence renders a full-time custodial sentence as the only appropriate sentence.

   106. I would allow a 25% discount for the plea of guilty at the earliest possible opportunity and fix, after rounding, a head sentence of 28 months or 2 years and 4 months.

   107. Further, also adhering to the finding of special circumstances, I would provide for a non-parole period of 14 months. I would allow 5 months backdating, to account for the 1 month of full-time custody already served at the time the sentence was imposed and for the 12 months of strict conditional liberty.

   108. As a consequence of the foregoing, I would propose that the Court make the following orders:

   1. Leave to appeal granted;

   2. Appeal allowed;

   3. The sentence imposed by the District Court on 10 July 2019 on Oznur Yildiz be quashed and in lieu thereof Ms Yildiz be sentenced to a non-parole period of 14 months, commencing on 10 February 2019 and expiring on 9 April 2020, with the remainder of term of a further 14 months, concluding 9 June 2021;

   4. The applicant, Ms Yildiz be first eligible for parole on 9 April 2020.

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Amendments

14 July 2020 - Publication restriction imposed

Decision last updated: 14 July 2020