[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.)
- It is apparent from the passage of the remarks set out at [46] that these well-established principles were known to the sentencing judge.
- 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.
- 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."