Carreno v R

The applicant's subjective case on sentence

1. Given the gravamen of the first two grounds of appeal concern how the sentencing judge dealt with the question of the applicant's youth at the time of the offending, I will set out the entire section of the remarks concerning the applicant's subjective case on sentence - which not only touches directly on the contentious issue, but also provides appropriate context. The relevant section of the remarks state: "THE [APPLICANT'S] SUBJECTIVE CASE As I have earlier observed the [applicant] is now aged 42 years. He was still a young man at the time of the offending. Often the youth of an offender will impact upon the courts assessment of moral culpability and can in certain circumstances result in the imposition of a more lenient sentence, particularly if the offending itself appears causally connected with an offender's immaturity. There is no evidence of that here. Further these types of considerations are given much less weight when an offender behaves with extreme violence as [the applicant] did. The [applicant] gave evidence before me in the sentencing hearing. He said that he had thought about what he had done over the last 20 years and that he entered his pleas of guilty on the first day of his trial because he had committed the offences and he wanted to bring the proceedings to an end, and in doing so acknowledges his wrongdoing. He told me that at the time of the offending he was associating with some bad people who lived near him in Macquarie Fields. He told me that he was lost at the time and that he was caught up with a bad crowd. The offending occurred a year after that he had left school. He described this as a "gap year" during which he did some casual part-time labouring. I would observe that gap years are often associated with periods of overseas travel by young people rather than engagement [with] extremely serious criminal conduct as is the case here. He said that his co-offenders were aged 27 and 25 respectively. When cross-examined by the Crown he was not prepared to identify them. He said that this was out of fear. He told me that he wished he had never committed these offences, and that he did not think that he was to be involved in anything other than a robbery on the night in question. He said that he understood a drug dealer lived at the property occupied by the victims. There is no evidence that would support a conclusion that this was in fact the case. Of course, this evidence begs the question as to why, in those circumstances, he engaged in the grave sexual assaults upon [the female victim] to which I have referred. He was unable to provide an answer to his counsel as to why he had committed those sexual assaults. He said that he wished that they never happened and that he was deeply remorseful and sorry. He acknowledged that [the female victim] did not have possession of any money or drugs. He also told me that he could understand the impact that the offending has had upon her, and that as the father of two daughters he would be devastated if something like this happened to them. During cross examination by the Crown he agreed that in the lead up to the trial he had sought to explain the presence of his DNA in the swabs taken from [the female victim] by instructing his lawyers that he had engaged in consensual sexual intercourse with her in the days prior to the offending. He agreed that what he told his lawyers was untrue. It was the Crown's submission that this was indicative of both a general dishonesty in the offender and a lack of genuine remorse. To the extent that his plea of guilty is evidence of remorse, it is to be balanced against the explanation that the [applicant] proffered to his lawyers with a view to explaining the presence of his DNA in the vaginal swabs taken of the victim. Any remorse for his criminal conduct came very late in the day. It was put to him in cross-examination that he was an active and willing participant in all that occurred and particularly in relation to the sexual assaults upon [the female victim]. He agreed with that proposition. He also agreed that there was nothing preventing him from leaving the premises at any time. I also observe that there is no suggestion in any of the material that the [applicant] was forced or compelled by his co-offenders to sexually assault [the victim] both digitally and by inserting his penis into her vagina. In his cross examination he said that he wished he had stopped the firearm being inserted into the victim's vagina. I have inferred that he meant to convey some appreciation by him of the gravity of that sexual assault by one of his co-offenders. While that may be his feeling now, it was certainly not his feeling at the time. If it were, it is difficult to understand why the [applicant] would have had penile/vaginal intercourse with the victim immediately after the handgun was removed. Tendered in the [applicant's] case was a psychologist report of Anthony Diment dated 5 November 2020. It referred to an earlier report of Mr Diment dated 27 October 2019. This earlier report was not provided to the court. The [applicant] was born in Chile the eldest of three children. His father whilst a hard worker is reported to have been violent and abusive particularly after consuming alcohol. His family came to Australia when he was young and he was educated in this country. He attended East Hills Boys High School and obtained his HSC in 1997. After high school he attended university for a year studying exercise science. After leaving university he completed a diploma at TAFE in fitness science and obtained work in the fitness industry for about eight years before moving into the IT industry. He appears to have generally been in paid employment, other than for those times when he has been incarcerated. As a young man he was a talented rugby league player. He has had two lengthy personal relationships and is the father of three children aged 20, 8 and 7 years. He has continuing good relationships with his former partners and has expressed a desire upon his release from custody to engage with and support his children. He enjoys a good relationship with his parents and younger sisters. He is said to have embraced Christianity whilst in custody. These are all positive features of his subjective case. The [applicant] reported to Mr Diment that he had commenced to use alcohol in his mid-teens and ecstasy and cocaine in his 20s. He says that he is now drug-free. In the past he has had issues with problematic gambling. He told Mr Diment that he cannot explain his offending behaviour and that there are no excuses for it. He was assessed by the psychologist as suffering a persistent depressive disorder with anxiety. This is not uncommon for people who are facing the prospect of a lengthy custodial penalty. In custody he has completed several courses that may well assist him in obtaining employment upon his eventual release. Mr Diment has assessed him as a low risk of sexual reoffending. In the absence of further sexual offending and given the effluxion of time since this offending, I am prepared on balance to accept this assessment. His criminal record as an adult reveals that on 19 March 1998, approximately eight months before these offences, he committed an offence of robbery. He was sentenced for that robbery on 17 December 1998 and ordered to perform 250 hours of community service work. Two days later on 19 December 1998, being three weeks after these offences, he was charged with possessing an unauthorised firearm. He clearly had some association with firearms and with persons who possessed them in late 1998. He was convicted of this firearm offence on 10 February 2000 and ordered to perform a further 250 hours of community service. Thereafter the [applicant] came into conflict with the criminal justice system largely for multiple driving while disqualified offences some of which resulted in the imposition of terms of imprisonment. On 9 August 2017 he was charged with several serious driving offences and further firearm offences, being possession of an unregistered firearm and possession of an unauthorised firearm. On 11 April 2018 he was sentenced in respect of those matters to an aggregate term of imprisonment of 4 years with a non-parole period of 2 years commencing on 9 August 2017. His non-parole period expired on 8 August 2019. He has remained in continuous custody since 9 August 2017. On 21 March 2018 he was charged with offences of dishonestly obtaining a financial advantage by deception. These had occurred in 2015 and involved approximately $160,000. In those matters he was sentenced to an aggregate term of imprisonment of 18 months with a non-parole period of 10 months commencing 9 June 2019. Save for these matters, he would have been eligible for release on parole on 8 April 2020 and accordingly has been held in custody solely in respect of these offences since that date. This gives rise to an issue as to when the sentences to be imposed today ought to commence and I will return to this issue shortly. His record of offending after 25 November 1998 is relevant not as a matter of aggravation in respect of the offending itself, but as some indication of his capacity for rehabilitation and ability to live a pro social and crime free life in the community. It is also demonstrative of the fact that this offending, whilst plainly the most serious for which he has been before a court, is not an uncharacteristic aberration. This is particularly in circumstances where he had committed an offence of robbery 8 months prior to these offences, and where within a month of these offences he had also been charged with a serious firearms offence. Having regard to all the circumstances of his subjective case I am guarded both as to the genuineness of his remorse and his prospects of rehabilitation. Whilst I accept that there is some insight into both the offending itself and his underlying issues with drugs and gambling, I am unable to conclude as was urged by Mr Gaitanis, that his prospects of rehabilitation are at least reasonable if not better."

Other matters in the remarks

1. The sentencing judge allowed a 10% discount for the late pleas of guilty to reflect the pleas' utilitarian value.
2. The impact on the witnesses was acknowledged by the sentencing judge in some detail, noting that he accepted "without hesitation" that the applicant's conduct has had an "overwhelming deleterious effect" on the female victim, and further noting that the applicant was responsible both directly and as a participant in the joint criminal enterprise for all the various harms that had been caused to her. The sentencing judge found the emotional harm caused to her was "substantial" within the meaning of s 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and was a specifically aggravating factor in respect of sentencing for Counts 2 and 3.
3. As to totality, the sentencing judge referred to the principles summarised in Osman v R [2020] NSWCCA 78 at [53] and considered the issue of backdating in light of the applicant's other sentence and his continuous custody since his arrest on the present matters. He determined that the sentence for these matters should start on 12 August 2019 - which allowed for partial concurrency with his other sentence.
4. The sentencing judge declined to make a finding of special circumstances. He noted that the sentence to be imposed on the applicant would already provide a lengthy and sufficient period of supervision on parole, and further stated that given the grave nature of the offending, a non-parole period in accordance with the statutory ratio of 75% represented the minimum period of incarceration which was appropriate in all the circumstances.

Grounds 1 and 2:

1. The grounds of appeal are as follows: 1. Ground 1: The sentencing judge erred in finding there was no evidence of a causal connection between the applicant's youth or maturity and the offending or, alternatively, in positively finding no causal connection existed. 2. Ground 2: In the alternative to Ground 1, the sentencing judge gave insufficient reasons for finding there was no evidence of a causal connection between the applicant's youth or maturity and the offending or why no weight was to be afforded to that matter.
2. It is convenient to deal with both of these grounds together.
3. It can first be observed that the issue of there being a "causal connection" between the applicant's youth or maturity at the time of the offending and the offences committed was not raised squarely before the sentencing judge. Rather, it was raised clearly for the first time on this appeal, arising, it is argued, from a particular passage in the remarks set out above. For convenience, the relevant passage is repeated here: "As I have earlier observed the [applicant] is now aged 42 years. He was still a young man at the time of the offending. Often the youth of an offender will impact upon the courts assessment of moral culpability and can in certain circumstances result in the imposition of a more lenient sentence, particularly if the offending itself appears causally connected with an offender's immaturity. There is no evidence of that here. Further these types of considerations are given much less weight when an offender behaves with extreme violence as this [applicant] did."
4. The evidence said to show a causal connection between the applicant's youth or immaturity and his offending is said to be from the following passages from the report of Mr Diment, under the heading "Summary/Opinion": "His offending in November 1998 was in the context of the [sic] being likely unduly influenced by a peer group including some who were involved in criminal behaviour which led to his actions. […] Overall, I had the impression of an [sic] thoughtful but somewhat unassertive person who was at age nineteen somewhat lacking in direction and life purpose which led to a vulnerability and difficulty in resisting involvement in criminal activity."
5. These passages must be viewed in the context of other evidence. 1. Immediately after the passages which are relied upon by the applicant in Mr Diment's report, the following is recorded: "(He reported "anxiety" in his early teens but has been reluctant to admit he required professional help to deal with the various stressors in his life. (Unfortunately his attempts at coping with his depression and later marital problems led to problems well after he was nineteen - culturally and attitudinally he had the belief that men had to be strong and that depression was a form of weakness)." 1. In the body of the report under the heading "Background", the following was included: "He told me, 'Back then Mac. Fields was tough in places. I grew up with people and neighbours who were drugs users and dealers and after school I was a bit lost. Some of the people who I knew from school were in gaol and I was hanging around with some of the wrong crowd you could say, I did get into strife then (which reflects his early criminal history)." 1. In the body of the report under the heading "Involvement in offences: (November, 2019)", the following was included: "He told me that, 'That year was a gap year for me. I was doing casual labouring jobs here and there. A couple of days here and a week or so there. I was a bit lost as to what I really should do but unfortunately around Macquarie Fields I had gone to school with people who were involved in crime and I sort of hung around some of them. Bad people.' [The applicant] told me, 'I only remember bits and pieces now. On the day this happened I was with some guys who were a lot older than me. I remember not being wanting to get involved but I did go with them. I had no intention of doing anything like what happened. I knew it was a robbery but when I went in one of the others was already doing this stuff to the girl. To this day I don't know why this happened. I have thought about this and honestly can't give you a proper reason. As soon as we left I remember thinking what just happened and what did I do? There are no excuses for what happened." 1. In examination-in-chief at the sentencing proceedings, the following evidence was adduced from the applicant: "Q: Tell us a little bit about your attitude to going there that night, why were you there? A: I was taking in a lot-- Q: I'm talking about when they raised this with you, what was your attitude towards it? A: I was just tagging along with a group of guys that were a little bit older than me at the time. Q: That were, sorry, what? A: That were a little bit older than me at the time. Q: Are you saying you were influenced by them? A: Well, they were older than me, so I'd say yes." 1. At another point in examination-in-chief, the following evidence was adduced: "Q: You mentioned 2017. Did anything happen in 2017? A: Yeah. 2017 I got pulled over by the police and I got, because I was driving whilst disqualified, I did the same thing again, I legged it, and they found a gun in the car. Q: What was that about? A: That was simply a bad situation where I was with same bad guys again because of my you know addictions and stuff. I was in a car that I shouldn't have been, it was a borrowed car, and I went to drop off - to drop off, I went to pick up some more drugs and I was pulled over by the police." (Emphasis added.) 1. In cross-examination, the following evidence was adduced from the applicant: "Q: Why didn't you just walk out of the house? A: I wish I could've. Like as I said these guys were older than me, I was-- Q: Did you just say you wish you 'could've'? A: Yeah. Q: What was stopping you? A: These guys are older than me, I was in, I was in way over my head. Q: What was stopping you walking out of the house? A: They had guns. Q: They weren't pointed at you though were they? A: It's a ..(not transcribable).. they could turn on me. These guys could turn on me like." 1. Further, in cross-examination, the following evidence was adduced: "Q: Then in 2017 you were involved in a police pursuit where a firearm was found in the car you were driving? A: That's right. Q: When you were involved in the pursuit did you know that the gun was in the car? A: I had some, some, some, like some awareness that there was something in the car but I didn't know exactly what. Q: In fact what was found in the car was a bullet and a revolver? A: That's correct. Q: And after you were arrested you participate [sic] in an interview with the police? A: I don't think so. Did I? I'm not sure. Q: Did you tell the police that you didn't have any knowledge of either the revolver or the bullet? A: Yes. Q: Then you discovered that your DNA was on the firearm? A: Well I don't think it was actually on the firearm. It was around the bag or something. Q: After that point you pleaded guilty? A: That's correct. Q: And you, in relation to that offence, again try and blame your associates? A: Well I was, I was - it's not that I tried to blame anyone. The facts are what - the truth is the truth, so it wasn't like that, but I had to go down for it because if - if I didn't go down for it then I would've been - someone coming after me because I told on someone about - I don't know, so I didn't - I just, I pled guilty to it."
6. Importantly, in the course of submissions on sentence on the applicant's behalf the following was stated: "The learned Crown has indicated that the offender was a willing and active participant. Of course he was, he's conceded that in the agreed facts. Of course he was willing because he went and he was active because he did these things to [the male and female victims]. The issue for your Honour is he gave some evidence as to his relative youth at the time, the influence that these other two men had over him, and of course the degree of planning that would have taken place in relation to the robbery. All that the offender is saying is that his role relative to the other two offenders, was of a lesser degree. He's not seeking to detract from the fact or diminish his involvement in the offences or his level of culpability. He accepts that." (Emphasis added.)
7. The applicant argues that this passage should not be read literally. It is contended that counsel's use of the word "culpability" should be read as a reference to the applicant's criminal liability (especially in light of the reference to the role of the applicant), rather than a concession that the applicant's moral culpability was not lessened because of his youth or the co-offender's influence.
8. The applicant further argues that youth may be relevant in three different ways: 1. Youth may increase the significance of the offender's rehabilitation - in recognition of the capacity of youthful people to reform and that the protection of the community is facilitated through successful rehabilitation. 2. An offender's moral culpability or criminality may be lessened if his or her immaturity was a significant factor in the offending - for example, where impulsivity and a lack of self-reflection as to its seriousness and possible consequences, being traits inherent in youths who have not reached full maturity, contributed to the offending. This lessens the weight attributable to general deterrence and retribution. 3. Chronological age may be an indicator but is not necessarily decisive of the offender's level of maturity.
9. The applicant fairly acknowledges that the significance afforded to "youth" as a factor may be diminished or, in some instance even, forfeited with very serious offending. The applicant contends, however, that the sentencing judge failed to engage with the facts and circumstances to determine what, if any, weight should be attributed to the applicant's youth. If little or no weight is to be attributed, the reasoning ought to be revealed. The applicant submits "this should not be determined or dismissed merely by reference to a broadly stated principle."
10. The respondent argues that there were no errors by the sentencing judge in the identification and application of the law as to the significance of the youth of the applicant. The sentencing judge noted the age of the applicant as 19 years and 10 months. The offending was adult in nature, involving three males in company, two of them armed, forcibly gaining access to the premises, using force to subdue the occupants, with a degree of planning and premeditation shown by the wearing of balaclavas and gloves, the use of threats to the victims, measures taken to keep them quiet and to tie them up, demands for cash and money, theft of valuable items, as well as the repeated sexual assaults of the female victim including what clearly must have been the terrifying use of the guns. The respondent noted that at about the time of the offending, as also noted by the sentencing judge, the applicant had an association with people who had firearms and he had convictions for robbery and possessing an unauthorised firearm committed alone and independently of this matter.
11. The respondent also drew the Court's attention to the finding by the sentencing judge that the offending in question was not an uncharacteristic aberration.
12. Further, the first sexual assault in the series of sexual assaults was committed by the applicant. He was the first to digitally penetrate the female victim's vagina, at the time demanding money and telling her to: "tell me or you are going to die for this". He continued to insert his fingers into her vagina when another male entered the room. Further, he was the first to force his penis into her vagina after she had been abused (by a co-offender) with one of the guns, thrown onto the bed and her clothes ripped or torn off.
13. The respondent further emphasised that during the sentencing proceedings, the applicant's counsel did not submit that his youth and/or immaturity was a mitigating factor in the list of relevant mitigating factors under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
14. The respondent submits that in light of all these factors, the sentencing judge was not in error in finding no evidence of a causal connection between the applicant's youth and the offending.
15. As to the alternative argument in Ground 2, the respondent argued that the applicant overlooked the detail with which the sentencing judge considered the applicant's subjective case. The sentencing judge, amongst other careful considerations, considered the significance of the applicant's history of both prior and subsequent offending.
16. The respondent submits that no error has been demonstrated and that Grounds 1 and 2 have not been made out.

Consideration of Grounds 1 and 2

1. The applicant, in essence, is arguing that the sentencing judge's discretion miscarried in that he failed to take into account a material consideration, being a causal connection between the applicant's youth or immaturity and the offending: House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40 ("House"). Alternatively, he argues that the sentencing judge failed to provide sufficient reasons for finding no causal connection or in attributing no weight to the applicant's youth or immaturity.
2. It is difficult for the applicant to make out these first two grounds of appeal because what is now contended was a material House error, is a factor which was not even squarely raised before the sentencing judge. Further, to complain that there were insufficient reasons for a matter not put squarely before the sentencing judge for consideration is a difficult submission to sustain in light of the principle set out in DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [32] where it was stated that the content and detail of reasons "will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision".
3. The principles relating to the factor of youth in the context of sentencing are well known. In the often cited decision of KT v R [2008] NSWCCA 51 at [22]-[26]; (2008) 182 A Crim R 571 ("KT"), the principles were summarised by McClellan CJ at CL: "The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30]. The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]). Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135): 'It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft (1975) VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment ie coercive action is fundamental to correctional treatment in our society.' The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity (R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]- [10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in 'adult behaviour' (Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence (Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society. The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity (R v Hoang [2003] NSWCCA 380 at [45]). A 'child-offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age (R v Bus, unreported, NSWCCA, 3 November 1995; R v Voss [2003] NSWCCA 182 at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth (Hearne at [27])."
4. Further, Hamill J in CW v R [2022] NSWCCA 50, conveniently set out the following well known additional principles and comments at [62]-[65]: "In submitting that the sentencing Judge failed to take the applicant's youth into account as a matter reducing his moral culpability and the importance of retribution in the sentencing exercise, the applicant relied on the judgment of Hodgson JA in BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379, which was endorsed by Rothman J in Yildiz v R [2020] NSWCCA 69 at [58]: '[3] 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.

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

[5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a 'child offender' of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). 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.

[6] 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.

[7] 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.' There is no 'bright line' - that is, an offender's 18th birthday - that determines the application of sentencing principles relating to young offenders. However, an offender who is a child at law is subject to the principles set out in s 6 of the Children (Criminal Proceedings) Act 1987, while an adult offender is not. Nevertheless, as Hodgson JA made clear in the passage extracted at [62] above, chronological age does not dictate maturity. In Howard v R [2019] NSWCCA 109 at [13] Fullerton J confirmed that it is: '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.' In R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 the Court stated the general proposition in the following terms at [25]: 'Where that immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years.' The relative importance of youth as a factor in sentencing is determined by the circumstances of the individual case. Consideration must be given to the evidence of the offender's 'mental state and circumstances of the offender at the time of offending'. The nature of the offending may have some relevance, including whether the offender 'has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity' or 'engaged in 'adult behaviour', and whether it involved planning and premeditation. Precisely what constitutes 'adult behaviour' in this context is difficult to define as the judgments in BP v R, KT v R and R v Hearne demonstrate. However, it is clear that: 'The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).'" (Footnotes omitted.)

1. It is apparent from the passage of the remarks set out at [46] that these well-established principles were known to the sentencing judge.
2. Here the applicant was aged 19 years and 10 months when he committed the offence, and a much older adult of 42 years when he was being sentenced.
3. The obvious factor of the applicant's youth at the time of offending was clearly appreciated by the sentencing judge. In the circumstances of this case, the sentencing judge was entitled to deal with the issue of the applicant's youth in the manner he did for the following reasons: 1. Even if it were the case that there was some minimal evidence from Mr Diment's report which technically could be said to ground a bare submission showing a "causal" connection between the applicant's youth and his offending, the way in which the applicant's case was argued before the sentencing judge did not rely on any such causal connection. Given the circumstances of the case, including the nature of the evidence in question, it is unlikely this was inadvertent. As recognised in the applicant's written submissions, referred to above, in order for there to be an amelioration of the culpability of the offender on account of youth, the authorities make clear that the immaturity of the offender needs to be a significant factor in the commission of the offence (KT at [23]; R v Hearne [2001] NSWCCA 37 at [25]; (2001) 124 A Crim R 451 ("Hearne"); MS2 v The Queen [2005] NSWCCA 397 at [61]; (2005) 158 A Crim R 93). Further, it was open to the sentencing judge to find that the main import of the so-called evidence of causation was that he was influenced by his co-offenders largely because they were relatively older than he was, rather than because the applicant was young per se. This was reinforced by the evidence set out at [55(5)] above indicating that even when youth was no longer a factor, the applicant was still influenced by the very same people to commit offences. 2. The impugned passage does not show that the sentencing judge gave no weight to the applicant's youth or immaturity. Rather, it showed that the applicant's youth was appreciated by the sentencing judge but that such factors were to be given "much less weight" in light of the applicant's behaviour which involved "extreme violence". Such an approach was open to the sentencing judge and in accordance with authority. 3. The nature of the offending was such that youth carried limited significance. 1. In relation to the first count, as stated in Hearne at [28]: "It takes no great maturity to appreciate in the course of planning, for example, an armed robbery or other instance of violence, that such activities infringe the rights of others in a way that no civilised society can tolerate." 1. In relation to the sexual assault counts, the applicant was the first of the offenders to sexually assault the female victim with the digital penetration and the first to commit the penile/vaginal assaults. This behaviour is of such a level of seriousness and showed such a level of confidence and initiative that it was open to regard the factor of youth as having limited weight. 1. This was not a case of a young offender coming before the court for a serious offence for the first time. To the contrary, as recognised by the sentencing judge, the applicant had committed a solo offence of robbery as an adult about eight months before these offences, and only three weeks after these offences he committed a further solo offence of possessing an unauthorised firearm. In light of this offending, any arguments involving impulsivity, a lack of self-reflection and possible consequences would have been far less forceful (if indeed such arguments had been made), especially when combined with the applicant's continued criminal conduct committed much later in life. Accordingly, any argument in this case that general deterrence and retribution should carry less weight on account of youth is harder to make out. 2. The considerable emphasis placed by the authorities on the need to provide an opportunity for rehabilitation when sentencing youthful offenders has little part to play in this case because sentencing for this serious offending was dealt with so many years after its commission. This was recognised by the sentencing judge when he noted that the applicant's record of offending after 25 November 1998 is "relevant not as a matter of aggravation in respect of the offending itself, but as some indication of his capacity for rehabilitation and ability to live a pro social and crime free life in the community."

Ground 3: The sentence imposed was manifestly excessive

1. In attempting to make good the ground of manifest excess of the aggregate sentence, the applicant directs the Court's attention to the indicative sentence for Count 1 as being "outside the reasonable range" as the key basis of the argument. In support of his argument, he points to statistics as well as a number of so-called comparative sentences.
2. It is important first to note that the applicant does not take issue with the description in the remarks of the seriousness of the offending in relation to Count 1. As set out above, the sentencing judge stated that the objective seriousness of Count 1 was at a point well above the mid-range of objective seriousness (or at the lower end of the high range) for offences of this type, and further stated that "there can be no doubt that the offending in count 1 is gravely serious". Even at the outset, it can be noted that: 1. The maximum penalty for the s 112(3) offence is 25 years' imprisonment; 2. There was a scheduled offence of stealing property which itself carried a maximum penalty of 7 years' imprisonment; and 3. The indicative sentence prior to the discount (14 years) was 11 years below the maximum penalty, that is, only 56% of the maximum penalty, Given the above, the applicant has a real challenge in making good his contention.
3. He attempts to do so by comparing the indicative sentence on Count 1 to other so-called comparative sentences, assisted by some statistical information.
4. The applicant notes that there were only two decisions prior to the introduction of the SNPP on the Judicial Information Research System ("JIRS") database for s 112(3) offences - which was conceded to be an insufficient sample.
5. The applicant provided a statistical table containing 55 post-SNPP s 112(3) examples. Of these it was noted that two attracted a head sentence or indicative sentence of 10 years or more, being Franklin v R [2018] NSWCCA 245 ("Franklin") and R v Charrouf (aka Obeid) [2020] NSWDC 311 ("Charrouf").
6. Franklin involved an offender who was in his 30s with no prior convictions. The offending was constituted by a planned home invasion comprising three offenders using weapons (a wooden club fashioned from an axe or pick handle and an unloaded firearm stolen from the victims), restraint of multiple victims, and considerable violence. There was no sexual violence. One victim was rendered unconscious and suffered a significant head wound which caused him grievous bodily harm. The injury was serious and had significant and ongoing impacts on his daily life.
7. The s 112(3) offence involved the special aggravation of being in company with two others and inflicting grievous bodily harm on the victim while being reckless as to causing actual bodily harm. There were two additional offences on a schedule, being an aggravated detention (contrary to s 86(2)(a) of the Crimes Act) and a specially aggravated detention (contrary to s 86(3) of the Crimes Act). The other offence for which he was sentenced was a detain victim with the intention of obtaining a financial advantage. A 20% discount was applied for past and future assistance to law enforcement authorities, and there was a 25% discount for his plea of guilty. An indicative sentence of 20 years, before discount, for the s 112(3) offence was held not to be manifestly excessive, although in resentencing (on other grounds) the indicative sentence nominated by this Court was 18 years and 6 months imprisonment. This was reduced after discounts of 45% to 10 years. An aggregate sentence of 12 years and 6 months with a non-parole period of 8 years was imposed.
8. The offender in Charrouf forcefully entered the victim's home with his co-offender in the early hours and committed a serious indictable offence, namely aggravated wounding in company. The circumstance of special aggravation was being armed with a dangerous weapon (a pistol). After gaining entry, the co-offender fired two .38 calibre automatic shots at the victim. One bullet hit the victim's thigh. The offender was about 34 years old at the time of offending and 37 years old at the time of sentence. He had extensive prior convictions including robbery in company, robbery with an offensive weapon, assault occasioning actually bodily harm, common assault, larceny, taking and driving a conveyance, and break, enter and steal. He had spent a significant part of his adult life in gaol and was on parole at the time of the offending. He received a 10% discount for his plea of guilty. He was sentenced to 11 years imprisonment with a non-parole period of 7 years and 6 months.
9. The applicant also referred to the Public Defenders' Table which contains 21 cases, picking up both pre and post-SNPP offences. There is no material before this Court to suggest this table was before the sentencing judge. The applicant points to the two sentences which involved sentences over 10 years: Srikantharajah v R [2012] NSWCCA 209 ("Srikantharajah") and Wootton v R [2014] NSWCCA 86; (2014) 241 A Crim R 256 ("Wootton").
10. It can be noted that in Srikantharajah, there were two offences against s 112(3). The serious indictable offence was intimidation, and the aggravating circumstance was that the appellant was in company. The circumstance of special aggravation was the intentional infliction of grievous bodily harm. There was an additional offence on a schedule, being intentionally or recklessly destroy property.
11. The appellant, who was 25 years old at the time of offending, was part of a group of Tamil males involved in violent confrontations with members of the Sinhalese community. Together with the co-offenders, he attended the victims' home at about 11:45pm and they smashed their way inside. One victim was struck with a metal pole (breaking his ankle) and stabbed in the stomach with a sharp implement. That victim also had his finger broken, hand wounded and had caustic soda squirted onto his face. The other victim had caustic soda squirted into his eyes, and whilst smashing a window with his hands in an attempt to escape, he received lacerations to his hands and sliced off the tips of his ring fingers. This victim was placed in a medically induced coma to alleviate pain. His sight returned over 2 to 3 months, but he continued to suffer pain to his eyes and blurred vision. The injuries were found to be very substantial.
12. The offending was held to fall within the mid-range of objective seriousness, with no evidence of planning by the appellant who had become spontaneously involved and no evidence that the appellant knew any offender had caustic soda. His substance dependence disorder was held to have played a causal role in the offending. He had prior convictions for affray and being armed with intent to commit an indictable offence. He received a 25% discount for his pleas of guilty. Accordingly, the starting point for each offence before this reduction was 9 years and 4 months, with the total effective sentence being 10 years with a non-parole period of 6 years and 6 months. This sentence was affirmed on appeal.
13. In Wootton, the appellant pleaded guilty shortly before trial to a break and enter dwelling and committing a serious indictable offence (robbery) with the special circumstance of aggravation being armed with a .22 pump-action long rifle. The offence was a planned violent robbery/home invasion by three offenders who concealed their faces and possessed firearms. The appellant was aged 27 at the time of the offence and together with two co-offenders, they forced their way into the victim's home by firing a shotgun through the door. A number of the pellets struck the victim on his arm, back and neck. The victim was assaulted including being struck to the back of his head with the butt of a gun. The victim escaped and a shot was fired as he ran away. The victim's partner and baby were present. The objective seriousness was found to be above the mid-range. The appellant received a 10% discount for his late plea of guilty. There was a history of disadvantage (childhood sexual abuse and early onset of drug addiction). He had prior convictions and was subject to a s 9 bond at the time of offending. There was no finding of genuine remorse. The starting point was 12 years. The sentence of 10 years and 9 months imprisonment with a non-parole period of 7 years was affirmed on appeal.
14. The applicant then pointed to some further decisions which were not before the sentencing judge.
15. I note that the first of these, Silas Gordon Haines v R [2012] NSWCCA 238, involves a s 111(2) offence (rather than s 112(3)) which carries a maximum penalty of 14 years. In light of the significantly different maximum penalty, I am of the view that it cannot be regarded as a comparative sentence and it is not useful to further consider it.
16. The next was Stewart v R [2013] NSWCCA 185 in which the appellant was sentenced for seven offences with four additional offences on a Form 1. This concerned two home invasions, committed in company, on the night of 5 to 6 November 2010 and again on the night of 15 to 16 November 2010 on the same home and victims.
17. During the second home invasion, the appellant was armed with a sawn-off shotgun, and the principal co-offender had a baseball bat at the time of entry. All offenders wore motorcycle helmets. The appellant knocked the male victim to the ground with the butt of the shotgun and forced the barrel into his mouth demanding money and valuables. Threats were made to harm a male victim, including by the cutting of his fingers, with the physical harm inflicted on him including a dislocated finger. The two female victims were indecently assaulted (making up the four additional offences on the Form 1). The appellant and the principal co-offender committed non-consensual oral and penile intercourse on an adult female victim inside the house. The appellant was just under 25 years old at the time of the offending and had experienced an "extremely disadvantaged upbringing". He had a criminal history which was "not significant", but which mostly concerned property damage offences. He had been abusing alcohol and cannabis and was "unaccustomed" to the "ice" he was given by the principal co-offender prior to the second home invasion. A 25% discount for his plea of guilty was applied and a finding of special circumstances was made (based on his need for rehabilitation and that it would be his first time in gaol). A total effective sentence of 14 years and 6 months imprisonment with an effective non-parole period of 8 years and 6 months was imposed.
18. Piscitelli v R [2013] NSWCCA 8 involved an appellant who was 23 years old at the time of offending. He received a discount of 25% for an early plea of guilty, and an appeal against his head sentence of 16 years and 6 months was dismissed. The appellant had committed a break and enter and committing a serious indictable offence (attempted sexual intercourse without consent) in circumstances of special aggravation, namely wounding (repeated bashing of the victim's head against a wall) contrary to s 112(3). The appellant was also found guilty of two counts of aggravated sexual intercourse. The victim was 83 years old and lived alone in her unit. The case of Brooks v R [2006] NSWCCA 169 was relied upon in Piscitelli and referred to by this applicant but I note that the offender in Brooks was charged with a s 112(2) offence which carried a lower maximum penalty and a 5 year SNPP. In Brooks, the victim was an 82 year old woman whose home was broken into. The 18 year old appellant (who was 21 at the time of sentence) terrified her with a spanner and digitally penetrated her and then committed penile-vaginal intercourse. He also performed cunnilingus and attempted to force the victim to perform fellatio and robbed her. He received a discount of 20% for his pleas of guilty. On appeal, his sentence was reduced to a head sentence of 14 years with a non-parole period of 10 years and 6 months. The sexual offending was found to have been opportunistic.

Consideration of Ground 3

1. In order for this ground to be made out, the applicant must show that the aggregate sentence was unreasonable or plainly unjust.
2. As noted above, in attempting to do this, the applicant has particularly focussed on the indicative sentence for Count 1.
3. The applicable principles are well known and are conveniently collected in Baker v R [2022] NSWCCA 195 at [117]-[119] by N Adams J: "The principles to be applied when considering an allegation of manifest excess are well established and have been frequently stated in this court. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill J and I agreed) summarised the relevant principles as follows at [443]: '[443] When it is contended that a sentence is manifestly excessive it is necessary [to] have regard to the following principles derived from House v The King at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust.' As has been observed by this court on numerous occasions, the question when considering a ground of appeal alleging manifest excess is not whether this court may have imposed a different sentence to that imposed at first instance. In Byrne v R; Cahill v R [2021] NSWCCA 185 at [1], Bell P (as his Honour then was) expressed it in this way: '… A sentence will not be disturbed for the simple reason that members of the Court of Criminal Appeal may have taken a more lenient or harsh view of the matter, were they conducting the sentencing hearing, than the sentencing judge. Something more must be shown that warrants appellate interference with the sentencing judge's discretion, as the famous decision in House v The King (1936) 55 CLR 499; [1936] HCA 40 makes plain.' The task of determining whether a sentence is unreasonable or plainly unjust is an evaluative one. As Wilson J (with whom Beech-Jones CJ at CL and Garling J agreed) recently observed in SB v R [2022] NSWCCA 164 at [55]: 'The process of considering the applicant's proposed ground must be, to a degree, an instinctive one, as is the procedure for determining sentence at first instance. Just as there is no single or mathematically correct sentence that should be imposed by a sentencing court, there is no mathematical equation by which an intermediate appellate court can conclude that a sentence is manifestly excessive or inadequate. The Court may be informed by considering sentencing statistics and other decided cases, or by conjecturing as to the level of notional concurrence or accumulation that may underlie an aggregate sentence, but questions of the excessive or inadequate nature of a sentence are matters for evaluative judgment. Considering all of the facts and circumstances that apply in a particular case, and having regard to the applicable principles of law, is the sentence imposed so far outside the acceptable range of sentence that it is erroneous?'"
4. In my view the comparative sentences provided to this Court simply do not demonstrate that the indicative sentence for Count 1 was outside any reasonable range. Nor do they show that the aggregate sentence was unreasonable or plainly unjust.
5. As referred to above in the discussion of the first two grounds of appeal, although the applicant was young when he committed the offences, he was not young when sentenced. Accordingly, the comparative sentences which focus on youthful offenders who were sentenced when they were still youthful have limited relevance. This is because factors such as an increased emphasis on rehabilitation do not apply where the person being sentenced is no longer youthful (and indeed, as in this case, has a subsequent criminal history). In the circumstances, it was open for the sentencing judge to give full weight to general and specific deterrence, and the guarded findings as to genuineness of remorse and prospects of rehabilitation were also open to him.
6. Further, as stated in Hili v R (2010) 242 CLR 520; [2010] HCA 45 at [54]: "In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'." (Footnotes omitted.)
7. As to the indicative sentence for Count 1, in light of all of the circumstances of the offence including the presence of multiple weapons, the number of persons involved, the maximum penalty, the scheduled offence, and the uncontested finding that the offending of Count 1 was gravely serious, a starting point of 14 years imprisonment with the discounted indicative sentence of 12 years and 7 months was well open to the sentencing judge.
8. Further, the aggregate sentence clearly had a large component of notional concurrency built into it. Taking into account all of the circumstances of the three counts, which included the very serious sexual assault offences and the scheduled offences, an aggregate head sentence of 16 years with a non-parole period of 12 years was well within the discretion of the sentencing judge.
9. Accordingly, I am of the view that Ground 3 is not made out.

Proposed orders

1. The orders I therefore propose are: 1. Leave to file the appeal out of time granted. 2. Leave to appeal allowed. 3. Appeal dismissed.
2. R A HULME AJ: I agree with McNaughton J. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 February 2023