Cowan v R

Court of Criminal Appeal (NSW)|2015-04-29|Before: Bathurst CJ, Simpson J, Bellew J, Mr P

Judgment

BATHURST CJ: In this matter, I have had the advantage of reading the judgments of Simpson J and Bellew J in draft.
I agree with the orders proposed by Bellew J and, subject to what I have written below, with his Honour's reasons.
For the reasons given by Simpson J, I have some doubt whether the sentencing judge properly took into account the applicant's youth in imposing the sentence. However, having regard to the applicant's success on the other grounds of appeal, it is unnecessary to pursue the matter further.
SIMPSON J: I have read in draft the judgment of Bellew J. I agree with the orders proposed, and with his Honour's reasoning in respect of Grounds 1 and 3, and his proposed disposition of Ground 4. I express some hesitation as to his Honour's reasoning in respect of Ground 2, concerning the applicant's youth and immaturity.
The relevance of youth and immaturity in sentencing is well established. It is an important sentencing consideration, for reasons stated in many cases, for example R v Hearne [2001] NSWCCA 37; 124 A Crim R 451 and BP v R [2010] NSWCCA 159; 201 A Crim R 379, and the many cases cited therein. In my opinion, the obligation to give adequate consideration, in a particular case, to the youth and immaturity of the offender is not discharged by mere reference to the offender's age, or to the offender as a "young person". Merely to note the age or youth of an offender, in such a way as to demonstrate that the sentencing judge is aware of the offender's age, is not sufficient to show that the appropriate sentencing principles were taken into account.

THE FACTS

Between about 9:40pm on 2 September 2013 and 1:50am on 3 September 2013 a Nissan Patrol ("the vehicle") was stolen from a residence in the northern NSW township of Casino. At about 1:53am on 3 September 2013 the vehicle entered a service station and pulled up to a petrol pump. A person later identified as the applicant got out of the vehicle. His carriage in the vehicle up to that time was the subject of the first of the matters contained in the Form 1.
The applicant was seen on CCTV footage to cover his hands with the sleeves of his jumper before filling the vehicle with fuel. A security guard observed that the driver of the vehicle had not shut down the engine while it was being refuelled. This caused the security guard to think that the driver may leave without paying for the fuel. Because of this he wrote down the vehicle's registration number.
The applicant put 24.44 litres of fuel, the value of which was $37.96, into the vehicle. The applicant got back into the vehicle and it was driven away without paying for the fuel. The failure to pay for the fuel is the subject of the second of the matters on the Form 1.
At about 2:39am on 3 September 2013 CCTV footage recorded the vehicle in the township of Evans Head, where it was seen to reverse from the road straight through the front doors of a bottle shop which was adjacent to the Illawong Hotel. As a result of the impact, the doors of the bottle shop (which were closed and locked at the time) were shattered. Six people, one of whom was the applicant, got out of the vehicle and ran inside. The applicant, who was wearing socks on his hands, pulled the hood of his jumper down over his face. Along with his co-offenders he ransacked the bottle shop and stole alcohol, cigarettes and cigarette lighters before leaving in the vehicle. The cost of repairs to the premises was $8,209.50. The value of the stock which was stolen was $8,093.07.
The vehicle was recovered, burnt out, at about 8:30am on 3 September 2013 in a park in Casino. A search of the nearby area resulted in the seizure of (inter alia) a "Bic" brand cigarette lighter, identical to the type stolen from the bottle shop.
The applicant was recognised by a police officer who viewed the CCTV footage taken at the bottle shop. Police then attended premises where they located a number of people including the applicant. Bottles of alcohol, cigarettes and cigarette lighters identical to those stolen during the raid were seized from various rooms within the premises. Other items seized included a pair of black tracksuit pants in which police located packets of cigarettes, a cigarette lighter and a wallet containing the applicant's identification. In another bedroom police located a green coloured jumper that the applicant was seen to be wearing on the previous evening.

Ground 1 - His Honour failed to take into account and apply the principles relevant to sentencing an intellectually disabled offender

The evidence before the sentencing judge

There was considerable evidence before the sentencing judge concerning the applicant's mental state.
Firstly, there was correspondence dated 11 October 2012 from Ian Nisbet, a senior specialist psychologist from the Forensic Mental Health Program of Juvenile Justice. Mr Nisbet reported that following assessment, the applicant's FSIQ score was found to be 44.
Secondly, a case note tendered to the sentencing judge recorded the details of a consultation between the applicant and Ms Katie Stephen, psychologist on 21 March 2014. The case note documented the results of an assessment of the applicant's cognitive functioning as follows: "The results of this assessment indicated that Mr Cowan's score fell within the Extremely Low range of cognitive functioning (Moderate). His score falls within the range of someone having an intellectual disability. Accordingly, he would experience difficulty in keeping up with his peers in a wide variety of situations that require age appropriate thinking and reasoning abilities."
The assessment of the applicant's level of cognitive functioning was later amended to mild as opposed to moderate.
Thirdly, there was a pre-sentence report dated 27 February 2013. It described the applicant's level of engagement throughout the interview as "limited", and his cognition as "significantly affected". The author of the report went on to state: "He did not appear to comprehend either the assessment process or his precarious situation."
The author also stated: "His psychosocial functioning also appeared affected by significant cognitive deficits, manifested in a lack of understanding regarding his legal requirements. To that end, further assessment regarding his level of functioning appeared warranted."
Finally, a report from Professor David Greenberg, psychiatrist, dated 2 June 2004 was tendered before the sentencing judge. Having examined the applicant's mental status, Professor Greenberg's provisional diagnoses included: 1. intellectual impairment with learning disorder; 2. attention deficit disorder; and 3. alcohol and cannabis abuse/dependence.
Professor Greenberg went on to say the following: "The writer is of the opinion there are reasonable grounds to believe that Mr Cowan suffers from a developmental disability. According to the pre-sentence report and the Juvenile Justice background report, Mr Cowan has been diagnosed as having intellectual disability (mental retardation) associated with learning disorder. It is reported that Mr Cowan's mother drank alcohol in significant quantities during her pregnancy. It is therefore likely that Mr Cowan has Foetal Alcohol Syndrome which is associated with intellectual disability. He is also been diagnosed with Attention Deficit Disorder. He has a history of alcohol and cannabis abuse and also has used amphetamines. He has significant personality problems with antisocial features which has been evidence (sic) since his early adolescence period. With regard to treatment recommendations the writer is of the opinion that Mr Cowan may benefit from drug and alcohol counselling. He may benefit from psychological counselling for his personality problems. It is imperative he abstain from all alcohol and other illicit substances for an indefinite period. Further use of these substances is likely to exacerbate his personality problems."

The sentence proceedings

The submissions made to the sentencing judge by the applicant's solicitor regarding the applicant's mental state commenced at T15 L36: "Your Honour sees that there's clearly issues with drugs and alcohol and as far as a residential type setting, there is nothing that is available to Mr Cowan at this particular point. But certainly during a period of supervision, it may be that he could be considered. He was certainly considered suitable for the Namatjira Haven Program, but there is not a place available to him at this time. But on a period of supervision, he has expressed his willingness to take part in any type of program that would address those drug and alcohol issues. Your Honour I'd ask your Honour to take into account the recommendations that were contained in a report, the psychiatric report that was prepared by Justice Health."
Having quoted from that part of the report of Professor Greenberg regarding the likely benefits of counselling, the applicant's solicitor continued (commencing at T16 L5): "Those recommendations, in my submission, are things that could be incorporated into a period of supervision on parole. What I am asking your Honour to consider is - I'm asking your Honour to find that there are special circumstances in relation to Mr Cowan and that the normal ratio could be adjusted to reflect those special circumstances, so that there would be shorter period of time in custody followed by a lengthier period on parole."
No further submission was made regarding the applicant's mental state. In particular, no reference was made to the principles regarding the sentencing of mentally ill offenders.
The Crown's written submissions on sentence did not address the issue of the applicant's mental state. However in oral submissions in reply the Crown (commencing at T18 L23) expressly acknowledged the applicant's "undoubted intellectual disability". Nevertheless, the Crown submitted that the applicant knew that his offending was wrong and that this circumstance necessarily reduced the weight to be given to his mental state.
Whilst acknowledging that the matter may not be "clear cut" the Crown continued (commencing at T18 L48): "Certainly there would be elements of impulse control that your Honour may be minded to take into account when determining the moral culpability of Mr Cowan, given the intellectual disability he labours under. The Crown's submission is the objective evidence shows that notwithstanding the intellectual disability, that the objective evidence is clear, that he knew what he was doing was wrong. He took some steps - not all steps that could be taken - but some steps to avoid detection. There is not any evidence in the footage available to show clear intoxication or the like and that while the Crown certainly concedes that it is relevant - and that is conceded - that the weight that ought be given to it ought not be disproportionate to the objective evidence available. That's the Crown's submission in respect to that subjective feature."

The findings of the sentencing judge

The sentencing judge said the following (commencing at ROS 3): "Now as far as he is concerned there is clear evidence, and it is principally from Professor Greenberg but there is plenty of other evidence, that what Professor Greenberg chooses to call a developmental disability, which he amplifies as intellectual disability, mental retardation, associated with learning disorder is significantly present in the case of this young man. He also has ADD, according to the Professor, and there have been significant alcohol and drug issues in the past. With that very much in mind that although he appears to have taken some steps of sadly inadequate nature from his point of view to conceal his identity, and although obviously there was planning, somebody decided that the vehicle was going to be stolen, somebody decided that it would be fuelled up and somebody decided that the target was over in Evans Head. There is absolutely no basis for regarding this young man as a prime mover in the planning organisation of this and indeed the Crown very frankly said the matters referred to as involving some planning are not put forward by way of aggravation against this offender, a very understandable approach in view of the background material about his educational and mental capacity. It is quite clear to me, having heard his sister who has been good enough to come to court and give evidence about him, that he is a vulnerable young man who is made use of as an experienced participant in matters such as this by others minded to carry out criminal activity. Regrettably he should have known better than to go along with anything of the sort because of his previous activities but I regard him as ready to go along with suggested wrong doing but not being the instigator of it, and I just repeat that the statement of facts shows that when the ram-raid achieved entry to the premises, he took an active physical part in abstracting some of the contents."
Having accepted that the applicant came from a disadvantaged and deprived background, his Honour then said (at ROS 4): "He is in need of intensive assistance down the track and that is where I come to now. It is submitted in the final assessment I should find special circumstances. That is conceded by the Crown and obviously the material fully justifies such a finding. The particular bases of that are the report of Professor Greenberg dated 2 June 2014, the material tendered by the defence and he obviously needs more time on parole than the normal sentence would involve."
His Honour made no specific reference to the principles applicable to sentencing mentally ill offenders.

Submissions of the applicant

It was submitted on behalf of the applicant that the sentencing judge had failed to consider whether: 1. the applicant was an appropriate vehicle for general deterrence in light of his mental state; 2. the applicant's reduced capacity to reason as to the wrongfulness of his conduct lessened his moral culpability; and 3. the need for retribution and denunciation was reduced in light of the applicant's mental state.
It was submitted that in these circumstances, the sentencing judge had fallen into error by failing to consider and apply the principles relevant to the sentencing of mentally ill offenders.

Submissions of the Crown

The Crown pointed out that no submission was made on behalf of the applicant to the sentencing judge regarding: 1. the degree to which the applicant's moral culpability was reduced because of his mental state; or 2. the reduced need for retribution and/or denunciation on account of such mental state.
The Crown argued that in circumstances where the submissions made on behalf of the applicant were restricted in the way that I have outlined, the absence of any reference by the sentencing judge to the applicant's suitability (or otherwise) as a vehicle for general deterrence was unremarkable, and was not indicative of error. The Crown also relied on the fact that the sentencing remarks had been delivered ex tempore, immediately following submissions.

Consideration

It has been observed by this Court on a number of occasions that it is inappropriate to take an overly critical approach to reasons for sentence which are delivered ex tempore, immediately following sentencing proceedings: see for example Gommesen v R [2012] NSWCCA 226 per Garling J at [37]-[38], McClellan CJ at CL and McCallum JJ agreeing; Warner aka Jeremy Pachenko v R [2013] NSWCCA 10 per S Campbell J at [33], Hoeben CJ at CL and Davies J agreeing. However even when full allowance is given to that circumstance in the present case, I am persuaded that ground 1 has been made out.
There was considerable evidence before the sentencing judge regarding the applicant's mental state. In these circumstances, and notwithstanding the absence of any specific submission as to the principles governing the sentencing of mentally ill offenders, the sentencing judge was under an obligation to consider those principles and, if appropriate, to apply them. I am fortified in that view by the recent observations of Price J (with whom Hidden and Schmidt JJ agreed) in Martin v R [2015] NSWCCA 6 at [53]: "It is evident from these opinions that the applicant's mental disorders may have contributed to his offending. Although a specific submission was not made by the applicant's counsel on this issue, the focus of the applicant's case on sentence was his mental health. In my respectful opinion, the judge was obliged to expressly make some assessment as to whether the applicant's moral culpability for the serious crimes that he committed was reduced by his mental condition. In assessing the objective seriousness of the offences, her Honour did not make any reference to the applicant's mental health and erred in not doing so."
In the present case, there was a similar evidentiary focus upon the applicant's mental health. The sentencing judge was under the obligation to which Price J referred. That extended to an obligation to consider the principles set out by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177]-[178] regarding the relevance of mental illness on sentence. In my view, the sentencing judge failed to discharge those obligations and accordingly this ground is made out.
As error has been found, the provisions of s. 6(3) of the Criminal Appeal Act 1912 (NSW) are enlivened. In these circumstances it is the duty of this Court to exercise the sentencing discretion afresh in the manner outlined by the plurality in Kentwell v R [2014] HCA 37; (2014) 88 ALJR 947 at [42]-[43]. In doing so, the court must take into account all relevant statutory requirements, and all relevant sentencing principles: Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 per Spigelman CJ at [19], cited with approval in Kentwell at [42].
I will return to these issues after considering the remaining grounds.

Ground 2 - The sentencing judge failed to take into account the applicant's youth

The evidence before the sentencing judge

The applicant was born on 21 April 1995. He was therefore 18 years of age at the time of the offending and 19 at the time of sentence. His sister gave evidence in the sentence proceedings (at T10 L14-21) that he was easily influenced by others and that he sometimes found it hard to make the right decisions.
The applicant's solicitor made the following submissions to the sentencing judge as to the relevance of the applicant's age (commencing at T15 L3): "In my submission, with appropriate supervision, there certainly are some - there is some prospect of rehabilitation. Particularly taking into account his age and that he is only - he is 19 at the time of these offences. Your Honour this is clearly, this is the first time that he has been in adult custody and he has spent, for a first time in adult custody already, a significant period of time in custody, almost ten months."
Although there were subsequent references (at T16 L17 and 21) to the applicant's age, such references were in the context of the applicant's difficult upbringing.

The findings of the sentencing judge

At the outset of his reasons the sentencing judge (at ROS 1) expressly referred to the fact that the applicant was aged 19 and had been in custody since the date of his arrest. He referred to him in the course of the remarks on sentence as a "young man" (at ROS 3.7 and 3.9). He expressed the view (at ROS 3.9) that he was "vulnerable" as a consequence of his youth.

Submissions of the applicant

It was submitted on behalf of the applicant that the sentencing judge had failed to consider and apply the principles relevant to the sentencing of young offenders, and had made no reference to having taken into account the applicant's youth when determining sentence.
It was submitted that the applicant's youth and immaturity, particularly in the light of his intellectual disability, had contributed to the commission of the offence and that there was evidence, which his Honour accepted, that the applicant was easily led and vulnerable to exploitation. It was submitted that the sentencing judge had erred in failing to take the applicant's youth and immaturity into account.

Submissions of the Crown

The Crown relied upon the fact that the sentencing judge had made specific reference to the applicant's age. The Crown also relied on the finding that the applicant was a vulnerable person which, it was submitted, necessarily incorporated a finding that the applicant was immature. It was submitted that in these circumstances the "synthesis of the sentence" necessarily included considerations of the applicant's age. The essence of the Crown's submission was that these matters left no room to doubt that the sentencing judge had taken into account the applicant's youth when determining sentence.

Consideration

The sentencing judge did not make specific reference to the principles in relation to the relevance of youth on sentence. However, it is clear from the various references in [47] above that he was aware of the applicant's age. It is also clear that he concluded that as a consequence of his age and immaturity, the applicant was vulnerable.
I am satisfied in these circumstances that his Honour was aware of the applicant's youth and that he took that (and related matters) into account on sentence.
It follows that this ground is not made out.

Ground 3 - His Honour failed to consider the objective seriousness of the offence

The sentence proceedings

In written submissions provided to the sentencing judge the Crown argued that the offending was "objectively serious" and that such seriousness was increased by virtue of the offending being in the nature of a "ram-raid". The Crown also relied upon the fact that more than $8,000.00 damage was caused to the premises. It was submitted that this amount was over and above that which was ordinarily occasioned in matters of this nature and that in these circumstances the aggravating feature in s. 21A(2)(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), namely that the damage caused by the offence was "substantial", had been established.
The Crown also relied on the fact that six people were involved in the offending. Whilst acknowledging that the aggravating feature in the offending was that the applicant was in company, and that it was therefore necessary to take care to avoid double counting, the Crown submitted that the large number of people involved in the offending was relevant to an assessment of its objective seriousness. In particular, it was submitted that although the offenders had been inside the premises for no more than 5 minutes, the large number of them meant that a significant amount of property was able to be taken in a short time, thus maximising the gain from the offending and minimising the risk of detection.
No real issue was taken by the applicant's solicitor to the Crown's categorisation of the objective seriousness of the offence.

The findings of the sentencing judge

Having summarised the facts of the offending the sentencing judge (commencing at ROS 2) made reference to the applicant's criminal history. He then considered (at ROS 3) the report of Professor Greenberg before turning to the role played by the applicant in the offending. Having done so, his Honour said (at ROS 4): "So in the light of all that I have to assess the appropriate sentence bearing in mind the standard non-parole period, although the law has changed about the approach to take to that; other authorities about ram-raids which unfortunately are fairly common and the way the courts look at it, and also bear in mind that this offender pleaded guilty at the outset and is entitled to full credit for that."

Submissions of the applicant

It was submitted on behalf of the applicant that the sentencing remarks were bereft of any assessment of the objective seriousness of the offending. It was submitted that such an assessment was essential to the task of the sentencing judge, and that had it been conducted it would have led to a finding that the objective seriousness of the offending was towards the lower end of the scale. It was submitted that his Honour's failure to undertake such an assessment amounted to error.

Submissions of the Crown

The Crown relied on the fact that there had been no real challenge at the sentence proceedings to the Crown's written submissions regarding the objective seriousness of the offending. Further, the Crown submitted that although there was no express assessment of the objective seriousness of the offence, it was apparent from the sentencing judge's references to various other matters that he had considered that issue.

Consideration

In my view, the sentencing remarks do not reflect his Honour having made any assessment of the objective seriousness of the offending. Such assessment is an important part of the sentencing process: R v Campbell [2014] NSWCCA 102 at [27] per Simpson. The importance of that assessment is such that its absence in the present case cannot be explained by the fact that the remarks were delivered ex tempore.
Moreover, as I have observed in respect of ground 1, his Honour failed to take into account and apply the principles relevant to sentencing a mentally ill offender, a consideration of which formed part of the assessment of objective seriousness. In McLaren v R [2012] NSWCCA 284 McCallum J (with whom McClellan CJ at CL and I agreed) said (at [29]): "The decision in Muldrock does not, however, derogate from the requirement on a sentencing judge to form an assessment as to the moral culpability of the offending in question, which remains an important task in the sentencing process. That this assessment is also sometimes referred to as the "objective seriousness" of the offence perhaps contributes to the misconception. I do not understand the High Court to have suggested in Muldrock that a sentencing judge cannot have regard to an offender's mental state when undertaking that task (as an aspect of his or her instinctive synthesis of all of the factors relevant to sentencing)."
In Elturk v R [2014] NSWCCA 61 Beazley P (with whom RA Hulme and Schmidt JJ agreed), said in reference to the decision in McLaren (at [34]): "Her Honour's analysis is, respectfully, not only correct, but aptly captures the relevance of moral culpability in the sentencing process."
In these circumstances, ground 3 is made out.

Ground 4 - The sentence imposed was manifestly excessive

For the reasons stated I have found error in respect of grounds 1 and 3. This requires that the sentencing discretion be exercised afresh. In these circumstances, it is not incumbent upon the applicant to establish that the sentence imposed by the sentencing judge was manifestly excessive. I have considered the matters advanced by counsel for the applicant in support of this ground in determining whether some other sentence is warranted: Criminal Appeal Act 1912 (NSW) s. 6(3).

Is some other sentence warranted?

The applicant's offending was undoubtedly serious. It resulted in substantial damage being occasioned to the premises and a large quantity of goods being stolen.
In terms of the applicant's role, the agreed facts made specific reference to the fact that he: 1. covered his hands with the sleeves of his jumper before refuelling the vehicle at the service station; 2. pulled the hood of his jumper down over his face upon entering the bottle shop; and 3. wore socks on his hands as he stole items from the bottle shop.
These matters support a conclusion that the applicant's offending was not spontaneous, that there was some degree of planning and that the applicant had some appreciation of his wrong doing. That said, there is nothing to suggest that the applicant played an organisational role in the offending. In fact, the evidence of the applicant's youth and his associated vulnerability tends to the contrary.
The medical evidence establishes that at the time of the offending the applicant had a mental disability which gave rise to a mild cognitive deficit. The case note of Ms Stephen specifically records that as a consequence of these matters, the applicant is a person who struggles in situations which require age appropriate thinking. There is other evidence, including that given by his sister on sentence, that he is easily influenced by others. I am satisfied in light of all of this evidence that there is a causal connection between the applicant's mental state and his offending. This renders him an inappropriate vehicle for general deterrence: De La Rosa at [177]-[178] per McClellan CJ at CL.
All of these matters impact upon an assessment of the objective seriousness of the offending generally, and the applicant's moral culpability in particular. They are consistent with the evidence given by the applicant's sister that he is a person easily influenced by others who sometimes finds it hard to make the right decisions.
In all of the circumstances, I would assess the objective seriousness of the offending as falling below the mid-range.
In the event that this Court came to re-sentence the applicant, two affidavits of Claire O'Neill, solicitor, affirmed on 24 April 2015 and 27 April 2015 were read without objection. The first affidavit establishes that the applicant has been employed since being taken into custody, firstly in upholstery making and secondly in ground maintenance. The reports of his work performance have been generally good. The second affidavit annexed an affidavit from the applicant sworn on 24 April 2015 in which he confirmed his work history and stated that he had been allowed to work outside the confines of a minimum security facility in which had been housed because of his good behaviour. He is presently on a waiting list to undergo a Young Offender's Program.
I am satisfied on the evidence that the applicant has used his time in custody productively. He has pursued employment, as a consequence of which he has acquired new skills. He has also sought to pursue educational opportunities. He continues to have the support of his sister who gave evidence on his behalf at the sentence proceedings and with whom he maintains regular contact. He has expressed a desire to undertake an Arts Course through Lismore TAFE when he is released and has stated that another of his siblings has undertaken to support him with his efforts to reintegrate into the community. The sole custodial issue faced by the applicant was in January this year when traces of a substance which had not been prescribed for him were found in his urine. No other breaches of custodial discipline have been identified. The applicant is still a young man and all of these matters support a conclusion that he has good prospects of rehabilitation, notwithstanding his prior criminal history.
The report of Professor Greenberg establishes that the applicant, who is Aboriginal, comes from a deprived background. His parents were both alcoholics and have been separated for some time. The applicant's two older brothers reportedly have drug and alcohol issues. As a consequence of these matters, the applicant was raised by his grandparents. He attended school until year 9 but is both illiterate and innumerate. He reported behavioural problems at a young age, and has never worked on the open labour market. In my view, these circumstances warrant the application of the principles discussed in R v Fernando (1992) 76 A Crim R 58, and more recently in Bugmy v R [2013] HCA 37; (2013) 249 CLR 571. Those principles include the following: 1. the deprived background of an Aboriginal offender may mitigate the sentence that would otherwise be appropriate: Bugmy at [37]; 2. the effect of deprivation does not diminish over time and must be given full weight in the determination of the appropriate sentence: Bugmy at [43]; 3. the experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life: Bugmy at [44].
In summary, the applicant's subjective case establishes that he: 1. is now 20 years of age and was 18 years of age at the time of the offending; 2. entered an early plea of guilty for which he was entitled to a discount of 25 percent; 3. has an impaired mental state which was causally connected to the offending; 4. comes from a deprived and dysfunctional family background; 5. is a person easily influenced by others; 6. is in adult custody for the first time; and 7. has good prospects of rehabilitation.
Specifically as to (vii), I am satisfied on the evidence that there are significant positive signs which demonstrate that if the applicant is allowed a longer period on parole, rehabilitation is likely to be successful: R v Tuuta [2014] NSWCCA 40 at [57]. I therefore find special circumstances.
In my view, the appropriate starting point is a sentence of 4 years imprisonment. As previously noted, the applicant is entitled to a discount of 25% on account of his early plea of guilty. The conclusion I have reached as to special circumstances will be reflected in the adjustment of the ratio between the total sentence and the non-parole period.

Orders

In the exercise of the sentencing discretion afresh, I propose the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed upon the applicant in the District Court is quashed. 4. In lieu thereof, the applicant is sentenced to a non-parole period of 1 year and 10 months imprisonment commencing on 3 September 2013 and expiring on 2 July 2015, with a balance of term of 1 year and 2 months imprisonment commencing on 3 July 2015 expiring on 2 September 2016.

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: 29 May 2015

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