DM v R

Court of Criminal Appeal (NSW)|2018-11-16|Before: Johnson J, Adams J

Judgment

SIMPSON AJA: I agree with N Adams J.
JOHNSON J: I agree with N Adams J.
N ADAMS J: The applicant seeks leave, pursuant to s 5(1) of the Criminal Appeal Act 1912 (NSW), to appeal against the sentence imposed on him by Montgomery DCJ on 28 March 2018. He was sentenced at that time in relation to one count contrary to s 66C(4) of the Crimes Act 1900 (NSW). An additional offence contrary to s 66C(4) of the Crimes Act was taken into account on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW). By his plea of guilty the applicant accepted that he had had sexual intercourse with a 15 year old female in circumstances of aggravation, namely, that the offence took place in company.

Background

The Crown case was that in the early hours of 21 May 2016, four young males had sexual intercourse with the victim at the home of one of the young males. The victim was 15 years and five months old at the time of the offences. The sexual acts fell into two time periods and will be referred to as the "first incident" and the "second incident". During the first incident, the applicant, HA, BJ and a fourth unknown male were present in the room. During the second incident, HA and BJ were present in the room.
The applicant was 17 years and seven months of age at the time of the offences, HA had turned 17 three days earlier and BJ was aged 14 years and six months at the relevant time. There was a fourth co-offender whose identity was never discovered and thus he was not charged.
DM and his two co-offenders were initially charged with aggravated sexual intercourse without consent contrary to s 61J(1) of the Crimes Act. The circumstance of aggravation was that each of the offenders was in the company of one or more of the others at the relevant time. An offence contrary to s 61J (otherwise than in circumstances referred to in sub-section (2)(d) of that section) is a "serious children's indictable offence" within the meaning of s 3 of the Children (Criminal Proceedings) Act 1987 (NSW) and, by operation of s 17 of that Act, a person charged with such an offence must be dealt with according to law.
Following charge negotiations, the applicant and his co-offenders ultimately entered pleas to alternative charges brought contrary to s 66C(4) of the Crimes Act. The applicant pleaded guilty to a charge that he did on or about 21 May 2016 have sexual intercourse with the victim being a person above the age of 14 years and under the age of 16 years in circumstances of aggravation, namely that the offence took place in company. It was not an element of the offence to which the applicant pleaded guilty that the victim did not consent to sexual intercourse. Rather, the criminality arose from the fact that the victim had not as yet turned 16 years of age.
An offence contrary to s 66C(4) of the Crimes Act is not a "serious children's indictable offence" as defined in s 3 of the Children (Criminal Proceedings) Act. Section 18(1) of the Children (Criminal Proceedings) Act provides that the Court may deal with a person who was a child when the offence was committed either according to law or in accordance with Division 4 of Part 3 of the Children (Criminal Proceedings) Act. Section 18(1A) of that Act provides that the Court must have regard to the following matters in determining whether to deal with the young offender according to law: "(a) the seriousness of the indictable offence concerned, (b) the nature of the indictable offence concerned, (c) the age and maturity of the person at the time of the offence and at the time of sentencing, (d) the seriousness, nature and number of any prior offences committed by the person, (e) such other matters as the court considers relevant."
At the proceedings on sentence before Montgomery DCJ, the Crown submitted that it was appropriate that each of the offenders should be dealt with according to law based on the relevant statutory criteria. It was submitted on behalf of the applicant and each of his co-offenders that the three offenders should be dealt with in accordance with Division 4 of Part 3 of the Children (Criminal Proceedings) Act. His Honour ultimately determined that the applicant and his two co-offenders should be dealt with according to law.

Facts

The sentencing judge summarised the agreed facts as follows: "On the evening of 20 May 2016, the victim met with her female friend, AB and with KS who was a 19 year old female friend of AB. At the time the victim was unable to live at home and was living at the home of her friend, AB. Whilst the three girls were on a train at about 11pm, the victim's friend, AB, was arrested by police leaving the victim in the company of the 19 year old KS, whom she had not met before that evening. The victim went with KS to the home of BJ, arriving at about midnight. KS was attending a party at BJ's house. The victim had not previously met BJ. The co-offenders DM and HA, each of whom was 17 years of age, were at BJ's home. When the victim arrived, there were three other girls present, all of whom were aged 16 years. The victim had never met DM or HA before. Shortly after the victim arrived at BJ's home, KS and the three other girls decided to leave the premises. Because the victim was not able to live at home and AB had been arrested she had no place to stay the night. She attempted to call her boyfriend to come and get her but was unable to contact him. KS asked BJ if the victim could stay the night at his home and he agreed. KS and the other girls left BJ's home, leaving the victim alone with BJ, HA and DM."
His Honour then went on to set out the agreed facts in relation to the first incident as follows: "BJ, HA and DM asked the victim to come into room 2 of BJ's home. She had one sip of alcohol which made her feel sick. There is no suggestion that she was intoxicated. The victim was sitting near the pillow end of the bed with her legs hanging over the bed and her feet on the floor. A short time later, DM positioned the victim's legs onto the bed such that he was sitting between her legs and her genital area was close to him. BJ was trying to kiss the victim. BJ and an unknown male were nearby when DM pulled the victim's pants off and threw them on the floor. The unknown male asked the victim whether she consented (first inquiry of consent). The victim did not respond to the unknown male's inquiry of consent. BJ was still trying to kiss the victim. DM put his finger in her vagina (Form 1 DM). The unknown male placed one hand on the victim's breast and with the other hand he grabbed the victim's hand which he then placed on his penis. The unknown male said, "Is that all right?" (second inquiry of consent). The victim did not respond to the inquiry of consent. BJ put his penis in the victim's mouth (Count 1 BJ). DM put his penis in the victim's vagina and had penile/vaginal sex with her (Count 1 DM). The unknown male kept telling DM to move. The unknown male then had penile/vaginal sex with the victim. Throughout the first incident HA stood in the room, near the door (Count 1 HA). After the unknown male got off the victim, BJ had penile/vaginal sex with her (Count 3 BJ). Whilst this was occurring DM and HA and the unknown male left the room. BJ had penile/vaginal sex with the victim for five to ten minutes until she told him to stop and said that she needed a smoke. BJ, in response to the victim's request, got off her. The victim went outside and had a smoke. A short time later the victim went and sat in the lounge room to watch television with BJ, HA, DM and the unknown male."
His Honour went on to summarise the "second incident" (in relation to which the applicant was not involved) as follows: "After some time in the lounge room BJ and HA asked the victim to go to room 1 of BJ's home. Room 1 was another bedroom. HA came to her saying that he wanted to talk to her and guided her by her hand into room 1. There was a single bed in the room. BJ came into the room and laid down on the bed. He told the victim to lie down next to him and said, "We are only talking". The victim lay down next to him. The victim had her clothes on and BJ also had his clothes on. HA sat on the end of the bed before laying down on the bed. HA started touching the victim on the outside of her vagina with his fingers/hands over the top of her clothing. BJ put his hand inside her pants and touched her vagina. Both BJ and HA pulled down her pants. BJ and HA had penile/vaginal sexual intercourse with the victim (Count 2 BJ, Count 2 HA). The penile/vaginal sexual intercourse of BJ and HA with the victim continued until the lights were turned on by another male, JH, who came into the room. At the time HA was on top of the victim and blood was noted on the bed sheet. There was blood on the fingers and penis of HA and he ran outside saying that he was sorry. The victim stayed in the bedroom, room 1, for about five to ten minutes lying down by herself. She then went to the bathroom and washed the blood off her vagina and legs. She went back into the lounge room where the males were. At that time another two males and two females had arrived at the premises. The victim sat in the lounge room with the group and had some marijuana with them. HA, another male kept asking the victim to come back inside the bedroom, room 2, but she refused. The victim sat in the lounge room for about five minutes watching a movie. She felt ill and then ran to the bathroom and vomited."
His Honour summarised the agreed facts as to what occurred after the offences as follows: "The victim woke up around 8.30 to 9am in the morning on the single bed in the bedroom 1 by herself. She only had her bra on and her clothes were on the floor. The victim put on her clothes and walked out the sliding door. An African male was sitting on chairs outside and she walked to the main street. The victim walked to the home of her friend MM which was not far from BJ's home. When the victim arrived at MM's home she spoke to MM's flatmate who contacted MM and MM then reported the matter to the police. When police attended the victim complained of soreness in her vagina, bad stomach pains and headache. The victim was taken to Westmead Hospital for a medical examination. A female doctor was not available to undertake an examination at this time but swabs were taken by the victim herself under instruction from staff. The victim complained of being light‑headed and she was noted to be drowsy. The victim had a cluster of ill-defined bruises on the right side of her neck, approximately 10 centimetres by 3 centimetres from collar bone to angle of the jaw and a 2 centimetre by 2 centimetre well demarcated circular bruise midway on the inner aspect of her right arm. Photographs were taken of the injuries on her face, neck and arm. The doctor described these marks as "hickeys" or "love bites". A medical examination was completed on 23 May 2016 by Dr Christine Norrie who noted that there was an injury to the victim's genital area described as a 1 centimetre by 0.3 centimetre linear mid line abrasion/laceration tear of the medial raphe midway between the posterior fourchette and the anal rugae with minimal bleeding from this abrasion. At 7.06pm on 21 May 2016 the victim was interviewed by police and her evidence was recorded. During the interview she disclosed the above offences and nominated the accused BJ as one of the males who assaulted her. Police applied for and were granted a crime scene warrant for BJ's home. Police attended and searched the premises. At 9.45pm on 21 May 2016 police arrested BJ at his home. His iPhone was seized. BJ was remanded in custody and has remained in custody since that time. At about 10pm 22 May 2016 DM, HA and [JH] attended Mt Druitt Police Station. Police seized the mobile phones belonging to HA and [JH]. They were later charged. The DNA of BJ matched with the profile of the semen located inside a green durex condom that was found in the rear yard of BJ's home. It had DNA matching the profile of the victim on the outside of it. In intercepted text messages between DM and his former girlfriend, DM told her that he wore a condom when he had sex with the victim."

Proceedings on sentence

The applicant, HA and BJ were all sentenced at the same time by the same judge. Detailed background reports prepared by caseworkers with Juvenile Justice NSW were tendered in relation to the applicant, HA and BJ. A short character reference was tendered in relation to HA. In addition, criminal records were tendered in relation to all three offenders as well as police facts in relation to some of the matters on the criminal records of both HA and the applicant. In addition, a psychologist's report and a letter from BJ's grandfather were tendered in relation to BJ and a character reference from the Deputy Chairperson of the Holy Family Catholic Parish Council in Emerton were tendered in relation to HA.
A victim impact statement was tendered as against all three co-offenders. The victim stated how the assaults had impacted on her life and that she felt "scared, hurt, violated, insecure, isolated alone and upset." She also stated that she now has "trust issues".
Neither the applicant nor either of his co-offenders gave evidence at the proceedings on sentence.

Subjective case of the applicant

The following information is taken from the applicant's background report.
The applicant is a Liberian Australian who left Liberia at a young age to live in Guinea. In 2005, he migrated to Australia as a refugee in the care of his grandmother. His parents remained in Guinea. He initially resided with his grandmother but was apparently subjected to severe physical discipline and neglect by his uncles. In 2013, he commenced residing in a youth refuge.
It was noted in the background report that the applicant has been diagnosed with "conduct disorder" and has several "personality and behavioural concerns." The author of the report also noted that the applicant was diagnosed with "depression" and "substance abuse disorder". He is on fluoxetine in order to address his depression.
The applicant had a criminal record at the time of the commission of these offences.
On 28 May 2013, he was charged with a robbery in company. It was alleged that he had stolen a mobile telephone from another commuter on a train. As will be seen below, it appears that the trial judge was wrongly of the view that this incident occurred in 2016.
On 26 November 2013, the applicant was placed on a bond for six months under s 33(1)(b) of the Children (Criminal Proceedings) Act.
On 20 September 2015, the applicant was charged with assaulting a police officer in the execution of his duty and resisting a police officer. On 2 December 2016, he was placed on a bond for six months under s 33(1)(b) of the Children (Criminal Proceedings) Act.
On 13 July 2016, the applicant was charged with one count of intimidation. The applicant had spat on the jumper of a police officer and resisted arrest by running away. On 19 September 2016, he was placed on a bond for nine months under s 33(1)(b) of the Children (Criminal Proceedings) Act.
On 24 September 2016, the applicant was charged with resisting police. On 1 March 2017, he was placed on a bond for eight months under s 33(1)(b) of the Children (Criminal Proceedings) Act.
It was noted in the background report that the applicant has received 41 punishments for misbehaviour whilst in custody. He had participated in at least six fights with other detainees. The majority of his punishments were for misbehaviour due to disobeying staff direction and harassment of staff and detainees. Despite this, the report noted that he was able to reach the third stage of the Juvenile Justice Custodial Incentives Scheme (the highest available for young people on remand). The author of the report went on to state that: "It is noted that [the applicant] has shown some improvement in his negotiation skills, and ability to accept decisions he perceives as unfavourable. This coincides with the commencement of anti-depressant medication in late October 2017. However, this is not translated to his participation in the assessment for this report, where he has shown resistance and refused to discuss his offending in depth."
The applicant refused to discuss the index offence with the author of the report.
As for his substance abuse, the applicant reported drinking four bottles of pear or apple cider on the night of the offence but indicated that he was not intoxicated and had not used any other drugs on the day of the offence. He self-reported use of cannabis on a daily basis in the months preceding the offence. The author of the report noted that this cannabis use contributed to the instability of his life at the time of the offence.

Remarks on sentence

After noting the relevant charges in relation to the three co-offenders, his Honour determined that he would allow a 15% discount for the pleas of guilty entered by each of them the day after the matter was listed for trial in the District Court. His Honour then set out the relevant facts in relation to the first incident (extracted above at [14]) before identifying the factors which he considered to be relevant to the criminality and moral culpability of the offending of each of the three offenders. These were as follows: 1. None of the offenders knew the victim; 2. Each of the offenders was present in the room when the unidentified male enquired twice of the victim as to whether she consented and she did not respond; 3. Neither the applicant, BJ nor HA used any physical force threats intimidation or coercion in order to persuade the victim to have sexual intercourse with any of them; 4. The victim did not struggle, use force, protest or voice opposition against the sexual intercourse; 5. The circumstances relevant to the gravity of the criminality in relation to the first series of assaults continued through the second incident; 6. The three Juvenile Justice Background Reports indicated the three offenders believed the victim to be 17 years of age. Each of them accepted that they had failed to make enquiries and did not know the victim's age; and 7. The three offenders submitted that the facts were consistent with the lower range of objective seriousness of offence.
His Honour then set out the facts in relation to the second incident (as extracted above at [15]) before making the following additional observations at ROS 9: 1. The victim suffered embarrassment and humiliation from the sexual engagement; 2. The sexual engagement was "devoid of affection"; 3. In relation to the second incident, HA and BJ had indicated that they were only going to talk to the victim and then proceeded to have sexual intercourse with her; 4. The second incident also occurred without BJ, or HA using force, intimidation or coercion to compel the victim into sexual intercourse; 5. Throughout the whole of the offending the victim was 15 and a half years old and alone in the company of these unknown males. She was thus in a position of vulnerability and was deserving of treatment "respecting her dignity and personal security"; 6. The victim had nowhere else to stay. This was an additional factor indicating to all of them the victim's vulnerability; 7. BJ ceased penile/vaginal intercourse during the first incident when the victim asked him to and so did HA following the second incident; 8. "The agreed facts are devoid of respect or empathy for the victim"; 9. The sexual assaults by each of BJ, HA and the applicant were committed purely for personal sexual gratification; and 10. This was not a case when the offenders went out on a plan to find and sexually abuse a victim. The offending was opportunistic.
As for the finding of objective seriousness his Honour found: "The objective seriousness is not confined [to] the nature of the sex act committed by the offender. While the form of intercourse can be an important factor, it is not to be regarded as the sole consideration. Also important in assessing the objective seriousness are the absence of violence beyond that inherent to the offence, the physical hurt inflicted, the nature of the intercourse not in isolation from the circumstances of what occurred, the humiliation caused to the victim and the duration of the offence."
His Honour then went on in some detail to outline factors relevant to the objective seriousness of the offence. He had regard to the victim impact statement and noted that there was no suggestion that drugs or alcohol were involved in any relevant sense. He referred to the authorities of Simpson v R [2014] NSWCCA 23 and KT v The Queen (2008) A Crim R 571; [2008] NSWCCA 51 and s 6 of the Children (Criminal Proceedings) Act.
His Honour then considered the question of whether he would sentence the applicant and his co-offenders according to law. He referred to s 18 of the Children (Criminal Proceedings) Act and then considered the relevant statutory considerations in some detail. In the process of doing so, his Honour observed that: "Consent is not an element of the offence under s 66C(4), the Court must be careful not to sentence as if for the more serious offence of sexual intercourse without consent of the other person under s 61J. An element of the offence is not sexual intercourse whilst knowing that the victim was not consenting."
His Honour then considered potentially aggravating features. He was not satisfied that the injury to the victim's vagina was an aggravating factor. His Honour had regard to the fact that the victim had twice remained silent and continued to engage sexually during the first incident when asked whether she consented. His Honour then observed in relation to all three offenders: "The degree of the victim's willingness or reluctance of participation in the context of the conduct making the offences is a question of fact to be assessed in all the circumstances. That the offenders observed the victim's silence to the inquiries seeking her consent and the fact that she returned to their company in the lounge room between the first and second incidents are matters to be observed in the context of her having no other place to sleep that evening other than in premises then occupied by the offenders and having telephoned her boyfriend in an attempt to avoid that scenario. It is significant that her consent was sought, but also significant is opportunistic youth engaged hormonal sexual drive devoid of empathetic romance based sexual conduct, immaturity of decision-making and objectification of the victim. These matters are to be assessed separately when sentencing each of the offenders for their criminal conduct in the circumstances."
His Honour went on to observe: "The offenders being adolescents and not charged with responsibility for the victim such as is recognised to arise at law in the adult responsibility for child scenario; they were not in a position of trust or authority in relation to the victim within the meaning of s 21A(2)(k) Crimes (Sentencing Procedure) Act. Nevertheless, that they knew the victim had nowhere else to go but to stay with them and that she was alone with the three of them were factors which, in my opinion, made each of them aware that to some degree she was in a position of disadvantage and compliant with their chosen course of conduct. In my understanding, adolescents are aware of peer group influence upon a lone stranger in the company of a group. All of those factors contribute to an assessment of the objective seriousness of the crime: Rainbow v R [2018] NSWCCA 442 at [23] to [31]."
His Honour then went on to state: "Careful consideration of the Agreed Facts of the present case, in my opinion, shows that the victim participated to the extent of doing so without protest when not under the duress of threat or coercion (as already identified) but when her liberty of free choice was diminished by the circumstances of being alone in the location of stranger boys (the offenders) who adopted a course of conduct, when she had nowhere else to go. There is no suggestion, for instance that she initiated the sexual engagement. Beyond that, the agreed facts do not permit an expression of the victim's willingness and certainly not of enthusiasm for the sexual intercourse."
His Honour then noted the importance of principles of parity (discussed below in consideration of Ground 4) before turning to consider separately the subjective circumstances of each of the three offenders. When it came to the applicant, his Honour observed that the act of digital penetration (the Form 1 offence) took place following the first "enquiry of consent" by the unknown male but was the "initiating physical sexual intercourse with the victim" occurring before the fellatio count committed by BJ and also before the penile/vaginal intercourse by the unknown male during the first incident. His Honour went on to note that: "DM also initiated the physical sexual course subsequently followed by himself and the other offenders, as well as the unknown male. He did this by positioning himself between the victim's legs whilst she was on the bed, and then by pulling her pants off and throwing them on the floor. At the time of taking that initiating action, he was the oldest of the offenders, being only 6 months short of obtaining his majority."
His Honour then referred to the relevant principles in relation to sentencing for a Form 1 offence by noting that: "The Court is to impose a sentence appropriate for totality of the criminality before it on the indictment, whilst taking into account the criminality of the Form 1 offence. This may mean that the sentence passed is greater than that which would have been appropriate for the offence on the indictment standing alone: Vougdis v R (1989) 41 A Crim R 125. There is no hierarchy between the physical sexual forms of intercourse and the criminality of each is to be assessed in the circumstances."
As for the finding of objective seriousness, his Honour noted that: "The objective gravity of DM's leadership in offending makes it more serious than that of HA or BJ, albeit each of them committed multiple offences. His age maturity makes his conduct of greater criminality than that of BJ. For the same reasons as stated in regard to the other offenders, each of his offences on the indictment and on the Form 1, were serious offences of the type, but for the same reasons, not at the higher level of objective seriousness for offences under s 66C(4)." [emphasis added]
His Honour then detailed the applicant's subjective material which was obtained largely from the background report. His Honour went on to state: "Taking into account the objective seriousness of the offence on the indictment and the offence on the Form 1, the nature of offending, including DM's lack of remorse and victim blaming in regard to it, being nearly of his majority of 18 years, albeit displaying immaturity at the time of the offence and at the time of sentencing and his antecedents displaying reaction to violence and confrontation including against police; in my opinion, DM is to be dealt with according to law for sentencing for the purposes of s 18(1A) CCP Act."
In further considering the appropriate sentence, his Honour observed: "The Background Report describes DM as lacking maturity of decision making at the time of the offence and that this has been a central focus of his rehabilitation. His commission of the offence was opportunistic. Again, there was no violence beyond the nature of the offence, threat or coercion. Taking into account his age of 17½ years, the offence did not involve adult planning, but rather occurred in the circumstances of the victim arriving into the company of the offenders because she had nowhere else to stay. In my opinion, it is appropriate to sentence DM with the considerations of sentencing of youth, to some extent diminishing deterrence in favour of rehabilitation. His dysfunctional family background as recorded in the Background Report shows that he has matured to early adulthood in an environment of violence without the opportunity of stability and without appropriate pro-social direction. Promotion of his rehabilitation will provide better protection of the community against risk of him re-offending in the future than punishment more focussed on deterrence. It is appropriate that the punishment denounce his conduct and make him accountable for his actions nevertheless, as well as recognising the harm done to the victim for whom he displays a lack of remorse. Incorporating the discount on the plea, in relation to the single offence on the indictment, including the Form 1 offence, and taking into account his three days of liberty from 22 to 24 September 2016, I sentence DM to a term of detention comprising a non‑parole period of 2 years and 9 months with a total term of 5 years."
BJ was sentenced to an aggregate sentence of four years, commencing on 22 May 2016 and expiring on 21 May 2020 with a non-parole period of two years commencing on 22 May 2016 and expiring on 21 May 2018.
HA was sentenced to an aggregate sentence of four years and eight months commencing on 27 October 2016 and expiring on 26 June 2021 with a non-parole period of two years and four months commencing on 27 October 2016 and expiring on 26 February 2019.

Ground 1 - The sentencing judge made a material factual error in finding that the applicant knew that the victim had nowhere to go on the night of the offence

Applicant's submissions

It was submitted that the sentencing judge made a material factual error in finding that the applicant knew that the victim had nowhere else to go. It was submitted that it was not open to his Honour to make this finding. The agreed facts only stated that KS had told BJ of this fact. There was no evidence to indicate that BJ then told the applicant about this. Nor was there any evidence that the applicant was present during that conversation between KS and BJ.
It was submitted that the applicant's knowledge of the victim's circumstances was material to his Honour's assessment of objective seriousness.

Crown submissions

Although it was accepted that the specific finding that the applicant knew that the victim had nowhere else to go formed no part of the agreed facts, it was submitted that it was nonetheless still open to the sentencing judge to find that the victim was vulnerable. It was submitted that whether or not the applicant had any particular appreciation of her accommodation crisis was not the point. Rather, it was submitted, the relevant factor was her vulnerability generally.

Consideration

It is well established that this Court can only disturb a factual finding made by a sentencing judge if satisfied that the finding was not open for this Honour to make. In R v O'Donoghue (1988) 34 A Crim R 397, Hunt J (with whom Carruthers and Wood JJ agreed) said (at 401): "It is important to emphasise that, unlike appeals to the Court of Appeal in civil cases, an appeal to this Court is not by way of rehearing. An appeal which is not by way of rehearing is no more than the right to have a superior court interpose to redress the error of the court below: A-G v Sillem (1864) 10 HLC 704 at 724; 11 ER 1200 at 1209; Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 109. Error may be demonstrated if there is no evidence to support a particular finding, or if the evidence is all one way, or if the judge has misdirected himself. But this Court has no power to substitute its own findings for those of the trial judge. The members of this Court may individually disagree with the findings which were made, but the Court cannot for that reason interfere with those findings. It is only where the very narrow basis upon which this Court can intervene in relation to a trial judge's findings of fact has been established that the conviction can be set aside, and then only if the error has led to a miscarriage of justice. See Merritt and Roso (1985) 19 A Crim R360 at 372-373; Kyriakou (1987) 29 A Crim R 50 at 60-61. No question has arisen in this application as to whether the trial judge's discretion miscarried."
In R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19, Wood CJ at CL (with whom Tobias JA and Hidden J agreed) said (at 573 [61]): "In its review, the Court [of Criminal Appeal] is also bound by findings of fact by the sentencing judge unless they were not open on the evidence or unless error is shown in a sense referred in House v The Queen (1936) 55 CLR 499 at 504-505, R v Kelly (1993) 30 NSWLR 64 and R v Khouzame [2000] NSWCCA 505."
The specific passage complained of is where his Honour found that: "The circumstances that the victim had nowhere else to stay and BJ had accepted KS's request that the victim stay at his home for the night were additional factors indicating to BJ, HA and DM the victim's vulnerability."
And further where his Honour noted: "...they were not in a position of trust or authority in relation to the victim within the meaning of s 21A(2)(k) Crimes (Sentencing Procedure) Act. Nevertheless, that they knew the victim had nowhere else to go but to stay with them and that she was alone with the three of them were factors which, in my opinion, made each of them aware that to some degree she was in a position of disadvantage and compliant with their chosen course of conduct."
Although the agreed facts stated that KS had asked BJ whether the victim could stay at his house overnight as she had nowhere else to go, it was accepted by the Crown that there was no evidence before the Court that this information was ever communicated to the applicant.
During the hearing of this application, it was accepted by counsel for the applicant that it was open to his Honour to find that the victim was vulnerable. The specific complaint under this ground is confined to the discrete finding that the applicant knew that she had nowhere else to go.
I have had regard to his Honour's detailed sentencing remarks. I am satisfied that his Honour's finding of the victim's vulnerability was not based solely on her lack of accommodation for the night. His Honour also remarked that she was 15 years old, that she was the only remaining female guest, that she was alone with the males and that it was after midnight. It was the combination of all of these factors which led to his Honour's conclusion regarding vulnerability.
Although it is to be accepted that the victim's accommodation difficulty might have explained why she remained at the house with four young males after midnight, her vulnerability also arose out of the other factors I have described above.
In support of his Honour's finding on this issue, the Crown relied upon the reference in the applicant's background report to where the applicant criticised the victim "…indicating that she should not have been at the house where the offence occurred after the other girls had left." Although this is unfortunate victim blaming, it also suggests that the victim's presence in the house indicated to the applicant a willingness on the victim's part to be there. I am not satisfied that this statement necessarily suggests that DM knew she had nowhere else to stay.
I am satisfied that, although it was inaccurate to attribute the knowledge of BJ to the applicant and HA, this did not make any material contribution to the finding that the victim was vulnerable. I would not allow Ground 1.

Ground 2 - The sentencing judge made a material factual error in finding that the applicant was in a position of leadership in relation to the offending conduct;

Applicant's submissions

The sentencing judge found that "the objective gravity of the applicant's leadership in offending makes it more serious than that of HA or BJ."
The applicant noted that no submission was ever made during the proceedings on sentence as to whether any of the co-offenders was in any relevant leadership position. It was submitted that there was no evidence to support any such finding that the applicant occupied such a position. There was no evidence that he instructed, commanded or directed any of the other offenders to do anything, nor did he have any involvement in the second incident in any event.
It was submitted that it was not reasonably open for his Honour to make this finding and it was material to his Honour's assessment of the objective seriousness of the offence.

Crown Submissions

The Crown relied upon the various acts attributed to the applicant in the agreed facts to contend that it was open to his Honour to make the finding that the applicant was in a position of leadership. In addition, the actions attributed to the co-offenders, when compared with those attributed to the applicant, were said to leave it open to his Honour to make a finding that the applicant took a leading role in relation to the first incident. I will consider that evidence below in my consideration of this ground.

Consideration

It was no part of the Crown case on sentence that any of the offenders had any particular leadership role. Despite this, it is to be accepted that the sentencing judge was not bound by the position of the Crown and the applicant on this issue: GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at 211 ([30]-[31]); DL v The Queen (2018) 92 ALJR 764; [2018] HCA 32 at 772 ([39]); R v Uzabeaga (2000) 119 A Crim R 452; [2000] NSWCCA 381 at 458 ([34]). It is relevant to note that, because the suggestion that the applicant played a "leadership" role was not raised during the proceedings on sentence, counsel for the applicant did not have the opportunity at that time to make any submissions on that issue.
As stated above, the specific finding made by his Honour was that: "The objective gravity of DM's leadership in offending makes it more serious than that of HA or BJ, albeit each of them committed multiple offences. His age maturity makes his conduct of greater criminality than that of BJ." (emphasis added)
The high point of any evidence that the applicant played any leadership role was that: he was the person who positioned the victim on the bed, he was the one who removed her pants, he was the first one to have any form of sexual intercourse with her (digital penetration - Form 1 offence) and he was the first of the four young offenders to have penile vaginal intercourse with her.
Other evidence before his Honour was that the applicant was not involved in any way in the second incident where HA and BJ took the complainant to a room and had sexual intercourse with her again.
His Honour had before him the background reports in relation to all three offenders. Although it was only the applicant's background report which was relevant to the sentencing of the applicant, it seems to me that it was relevant to any finding as to the relative criminality of each of the three offenders to have regard to how the other two offenders described the effect of the peer group on their offending. In his background report, HA is reported as stating the following: "Upon exploring his relationships with the co-offenders of these offences, [HA] described having a close friendship with young person [BJ], however he considered [the applicant] to be more of an acquaintance than peer. There was no reported peer pressure in his involvement in the offences before the court, however it appears that [HA] and [BJ] in particular negatively influenced each other to some level to commit the offences before the court, through encouraging each other's participation in group sex with the victim."
In the background report of BJ the following is reported: "…[BJ] has historically socialised with an older peer group within his local area. BJ reported that the majority of his friends are involved in antisocial or criminal behaviour, and are currently on remand or serving controllers, known to police and all involved in the juvenile justice service. It is noted that BJ's co-offenders were older than him which confirms his socialisation with older peers."
Further, when discussing the offence it was noted that BJ reported that: "…The victim had voluntarily attended his home, no preplanning of the offence had taken place amongst him and his peer group."
Although the applicant would not discuss the circumstances of the offence with his caseworker, the author of his report noted that: "…the applicant reported that engaging in sexual activity at BJ's house was normalised, and cited a previous time when he had a consensual sexual experience with a girl, together with his co-offender and another male."
While the applicant was the oldest of the three offenders to be sentenced by Montgomery DCJ and was only five months shy of being 18 years of age, I am not satisfied that the material before his Honour could lead to a finding that the applicant was in any "leadership" role. The agreed facts show that the first intimate contact between the victim and any of the men was when BJ kissed her. Nor am I satisfied that it was open to his Honour to make a finding of leadership based on age alone. Although the applicant's age was one of many matters which were relevant to the sentence to be imposed upon him, that fact on its own was not sufficient to make a finding that he was the "leader".
I would uphold this ground of appeal.

Ground 3 - The sentencing judge erred in failing to make a finding of objective seriousness

Applicant submissions

It was submitted that the sentencing judge erred in his assessment of objective seriousness in that his Honour did not make any clear finding on this issue.
It was also submitted, both in writing and orally at the proceedings on sentence, that the applicant's offending conduct fell within the lower range of offending of this kind. The position of the applicant was that, although his Honour appears in his Remarks on Sentence to have accepted that submission, he failed to make a clear ultimate determination in that regard.

Crown submissions

It was submitted that there was no failure on the part of the sentencing judge to state a conclusion as to the objective seriousness in clear terms. Rather, it was submitted that there was a clear conclusion when his Honour noted that the offences were serious but not in the higher level of objective seriousness for an offence under s 66C(4) of the Crimes Act.
It was submitted on behalf of the Crown that the sentencing judge placed significant emphasis on the absence of violence or threats on the part of the applicant and his co-offenders to coerce an unwilling victim. It was submitted that, in doing so, his Honour erred to the benefit of the applicant in circumstances where evidence of knowledge of lack of consent would have found a more serious charge contrary to s 61J of the Crimes Act.
As for the applicant's submission that the offence fell within the lower range of objective seriousness, the Crown responded that his Honour did not accept that contention. His Honour noted the submission on behalf of all three offenders that the facts are "consistent with the lower range of objective seriousness of offence, gravity of criminality and a degree of moral culpability such as that which might prevail in another case were no enquiry of consent was made and we coercion, intimidation or force was used to force the victim to is submission." His Honour did not go on to make a finding consistent with this. Rather, his Honour went on to enumerate the other factors relevant to the finding.

Consideration

The applicant's contention is that the sentence imposed on him is so high his Honour must have made a finding that it was more serious than had been submitted by his counsel, who had submitted that it was the "lower end of the scale".
The finding of the sentencing judge regarding the objective seriousness of the applicant's offending was that: "The objective gravity of DM's leadership in offending makes it more serious than that of HA or BJ, albeit each of them committed multiple offences. His age maturity makes his conduct of greater criminality than that of BJ. For the same reasons as stated in regard to the other offenders, each of his offences on the indictment and on the Form 1, were serious offences of the type, but for the same reasons, not at the higher level of objective seriousness for offences under s 66C(4)."
I am not satisfied that his Honour failed to make a finding as to objective seriousness. This is not a matter in relation to which the standard non-parole period of five years applied as all of the offenders were juvenile offenders at the time of the offences: see s 54D(3) of the Crimes (Sentencing Procedure) Act. I am not satisfied that any greater precision was required in articulating the range of objective seriousness beyond how his Honour expressed it in this case.
His Honour's finding was that these were serious offences of their kind but not at the higher level of objective seriousness. That assessment was one for the sentencing judge.
Although this ground was expressed as being a complaint that no finding of objective seriousness was made, both the Crown and the applicant also addressed in their submissions under this ground the question of whether this finding was in fact open to his Honour at all. A sentencing judge's characterisation of the degree of the objective seriousness of an offence is an evaluative judgement with which this court is slow to intervene. As Simpson J held in Mulato v R [2006] NSWCCA 282 at [46]: "The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. It is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion. As such it is reviewable in this Court only on the principles stated in House v The King [1936] HCA 40; 55CLR 499. The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. That is not because objective seriousness is something determined by reference to the evaluation of the credibility of witnesses, in respect of which it is conventionally held that the first instance judge is in a superior position. It is because it is a fundamental aspect of the appellate system. Each judicial officer in the hierarchy has his or her own function, and those at appellate level need to take care not to trespass upon the role of those at first instance".
Her Honour went on to note (at [47]) the: "……need for first instance judges to make clear findings of fact, and clear evaluations of such matters as objective seriousness. Absence of clarity in such findings may result in the need for the appellate court to undertake the task itself.
I am satisfied that there was no absence of clarity such as would require this court to undertake the task of making a finding of objective seriousness.
As for the finding itself, I accept the submission of the Crown that it was an error in the applicant's favour for the sentencing judge to appear to reduce the objective seriousness of the offending by reference to the fact that no threats were made. His Honour was mindful of the fact that the offence did not involve any element of a lack of consent. Furthermore, his Honour was aware that willingness on the part of a victim is relevant in the assessment of objective seriousness for an offence contrary to s 66C. His Honour referred to the decision of Wakeling v R [2016] NSWCCA 33 in his remarks on sentence. In that decision Davies J, with whom Hoeben CJ at CL and Johnson J agreed relied upon the decision in Hogan v R (2008) 186 A Crim R 52; [2008] NSWCCA 150 ("Hogan v R") and stated at [47] that: "Whether the complainant was a willing participant, notwithstanding her age, was relevant, as Hogan makes clear, to the level of objective seriousness."
In Hogan v R, Beazley JA (as her Honour then was) (with whom Johnson and McCallum JJ agreed) said (at [77]), in the context of considering a ground of appeal that the sentencing judge had erred in noting that the victim was not a "willing participant", that: "In my opinion, her Honour has not offended the principle stated in De Simoni. In the first place, she was conscious that consent was not an element of the offence. Indeed, that had been a matter of submission to her Honour. Rather, it is apparent that her Honour considered the question of whether or not TD was a willing participant was relevant, having regard to the wide range of offences that may be covered by the section. It is also apparent that her Honour's reference to TD not being a "willing participant" was made so as to gauge the relative seriousness of the offence in this case, as against other offences which might be charged under the section."
I am satisfied that his Honour made a finding of objective seriousness and that it was one open to His Honour to make on the evidence before him. I would not uphold this ground.

Ground 4 - The applicant has a legitimate sense of grievance when his sentence is compared to that of the co-accused HA

Applicant's submissions

The focus of the applicant's submission at the hearing of this application was that the applicant had a legitimate sense of grievance when his sentence was compared to that of his co-accused, HA. A number of differences as between the objective and subjective cases of HA and the applicant were relied upon which will be considered further below.

Crown submissions

Although it was acknowledged on behalf of the Crown that aspects of the applicant's case were more favourable than HA's case, reliance was placed upon the fact that the sentencing judge was well aware of the differences. Further, it was noted that there were very significant factors weighing heavily in HA's favour. It was submitted that the outcomes can be reasonably explained when consideration is given to the respective moral culpability of both offenders, including the applicant's initiating role and the fact that he was the oldest of the offenders. In addition, it was argued that HA's lower level of intellectual functioning and his impressive progress towards rehabilitation were relevant to the respective sentences imposed.

Consideration

It is well established that a Court may reduce a sentence not in itself manifestly excessive "in order to avoid a marked disparity with a sentence imposed on a co-offender": Green v The Queen (2011) 244 CLR 462; [2011] HCA 49; at [31]. As Gibbs CJ observed in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 ("Lowe v The Queen"), "…the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done." The majority (French CJ, Crennan and Kiefel JJ) observed in Green v The Queen (at [62]) that: "The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise." (footnotes omitted)
The applicant received a sentence of five years whereas HA received a sentence of four years and eight months. HA received indicative sentences of six months for count 1 and an indicative sentence of four years and six months for count 2. The applicant received a non-parole period of two years and nine months whereas HA received an aggregate non parole period of 2 years and four months. The applicant received a head sentence of five years imprisonment whereas HA received an aggregate sentence of four years and eight months.
Both the applicant and HA were sentenced by the same sentencing judge at the same time. As I have previously observed in Usher v R [2016] NSWCCA 276 (at [73]): "It is of significance that the same sentencing judge sentenced both the applicant and the co-offender. This Court has stated that, where possible, that practice is desirable. When the same judge hears both matters simultaneously, "…[he or she] will be in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way:" Huckstadt v R [2016] NSWCCA 22 per Button J at [90] (with whom Johnson and Fagan JJ agreed)."
Justice RA Hulme recently observed in Dayment v R [2018] NSWCCA 132 at [62] (Payne JA and Fagan J agreeing): "It is not for this Court to second guess the manner in which the primary judge differentiated between two offenders in the sentences imposed. Intervention will only be justified if the degree of the disparity in the sentences cannot be justified as a proper exercise of the judge's discretion."
In Lloyd v R [2017] NSWCCA 303 ("Lloyd v R"), RA Hulme J (with whom Payne JA and Garling J agreed) observed at [96]-[97]: "[96] It is a basic principle of appellate review of sentencing that 'there is no single correct sentence' and 'judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies': Markarian v The Queen (2005) 228 CLR 357 at 371 [27]; [2005] HCA 25 (Gleeson CJ, Gummow, Hayne and Callinan JJ). That observation may be translated to a review of the degree to which a sentencing judge has differentiated the sentences imposed upon co-offenders sentenced in the one sentencing exercise. [97] In short, it is not a question for this Court to second-guess the primary judge and to consider what we would have done: see Lowndes v The Queen (1999) 195 CLR 665 at 671-672 [15]; [1999] HCA 29. The question may be bluntly stated: was the differentiation made by the judge one that was open to her in the exercise of her discretion? In my view, the answer must be affirmative."
His Honour's sentencing remarks disclose that he was well aware of the differences and similarities between the offenders and the importance of principles of parity in the sentencing process. His Honour observed: "The task of sentencing each of the offenders demands consideration of parity between the sentences justified by a consideration of differences in the degree of culpability of the offenders or in their personal circumstances: OM v R, MH v R, AA v R, ASB v R [2009] NSWCCA 267 at [62]. The principle of parity apples to all aspects of sentencing, including the non-parole period, and is concerned with ameliorating a justifiable sense of grievance on the part of the offender. There is no breach of the principle of parity where sentences vary because of findings as to personal circumstances including findings as to whether special circumstances exist: R v Do [2005] NSWCCA 209 at [18]."
In order to determine whether the applicant has a justified sense of grievance concerning the sentence imposed on HA compared with his own sentence, it is necessary to have regard to the similarities and dissimilarities between the objective and subjective cases of the two offenders. As Gibbs CJ observed in Lowe v the Queen (at 609): "It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account."
A comparison of the applicant's case, and the findings made by the sentencing judge, as compared with of HA reveals the following.
First, his Honour found that the objective gravity of DM's leadership in offending made it more serious than that of HA (and BJ) even though each of them committed multiple offences. For reasons I have already given when considering Ground 2, I am not satisfied that it was open to his Honour to find that this applicant took any "leadership role" in the events in question. The Crown relied upon this finding by his Honour in support of its submission that the applicant's higher sentence can be explained. However, given my finding on this issue, that factor must be discounted as a possible explanation for the applicant receiving a higher sentence.
Second, HA stood to be sentenced for two offences on an indictment whereas the applicant only had one offence on an indictment and another on a Form 1. Although it is to be accepted that both of them had two offences before the Court that were to be dealt with, the fact that one of the applicant's matters was placed on a Form 1 nonetheless meant that he was only being sentenced in relation to one offence on indictment. It is well established that in sentencing an offender who has additional offences on a Form 1, the sentencing Court is to take into account the guilt which has been admitted with "a view to increasing the penalty that would otherwise be appropriate for the particular offence": see Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42] per Spigelman CJ (with whom Wood CJ at CL, Grove, Sully and James JJ agreed). However, this does not alter the fact that HA was being sentenced for two offences on indictment rather than one.
Third, HA was involved in both the first and second incidents whereas the applicant was only being sentenced in relation to the first incident. It is to be accepted in relation to the first incident that the allegation against HA is that he was present whilst DM and others had sexual intercourse with the complainant. It is not suggested that he played any active role in those matters beyond his presence but his plea of guilty means that HA accepted that he meant by his presence to encourage or otherwise participate in the first incident.
Significantly, HA took an active role in the second incident at a time when the applicant was not present. HA asked the victim to come to the bedroom saying that he wanted to talk to her, guiding her by her hand. Both HA and BJ then had sexual intercourse with her. HA had sexual intercourse with the victim whilst she was bleeding due to an injury caused to her vagina.
Fourth, although HA was seven months younger than the applicant, they were both 17 years of age and described by his Honour as immature. Although the applicant was towards the upper age bracket to still be dealt with as a juvenile offender, the difference in ages between HA and the applicant could not have been determinative of the respective sentences imposed on either of the two young persons in the circumstances. I am nonetheless satisfied that the applicant's age was a factor that distinguished him from HA to a small extent.
Fifth, HA had a significant criminal history which was more extensive and more serious than that of the applicant. HA had previously been sentenced to control orders whereas the applicant had not. I have already set out the applicant's criminal history above at [23]-[28]. This can be contrasted to HA's criminal history which can be summarised as follows.
On 2 February 2015, HA was charged with affray. He was sentenced to a period of 12 months probation under s 33(1)(e) of the Children (Criminal Proceedings) Act. On 14 October 2015, he was called up in relation to that probation and placed on probation for nine months. He was again called up on 22 February 2016 and was placed on a bond. He was called up yet again on 28 September 2016 and was placed on a five month control order under s 33(1)(g) of the Children (Criminal Proceedings) Act.
On 24 March 2015, HA was charged with refusing or failing to comply with a police direction. He was fined by the Court on 5 May 2015.
On 7 April 2015, HA was charged with three counts of intentionally marking premises. He was placed on a six month bond under s 33(1)(b) of the Children (Criminal Proceedings) Act. That bond was called up on 14 October 2015 and again on 22 February 2016, at which time HA was placed under another nine month bond.
On 12 August 2015, HA was charged with intentionally marking premises, shoplifting and causing damage to property. He was placed on a three-month bond under s 33(1)(a) of the Children (Criminal Proceedings) Act. That bond was called up on 22 February 2016. He was then placed on a 12 month good behaviour bond under s 33(1)(b) of the Children (Criminal Proceedings) Act.
On 22 February 2016, HA was charged with robbery in company. He was sentenced on 22 February 2016 to a 12 month control order under s 33(1)(g) of the Children (Criminal Proceedings) Act with a three month non-parole period.
On 17 March 2016, HA was charged with driving whilst never having obtained a licence. He was fined by the Court on 14 April 2016.
On 23 May 2016, HA was again charged with robbery in company. He was sentenced on 28 September 2016 to an 18 month control order under s 33(1)(g) of the Children (Criminal Proceedings) Act. Therefore, at the time of his sentence, HA was already serving a sentence for in relation to this offence. HA was also on both bail and parole at the time of the offences whereas the applicant was not on either form of conditional liberty. at the time of the offences.
His Honour appears to have made a mistake as to when the more serious offence of robbery in company on the applicant's record occurred. That offence was committed in 2013 when the applicant was 14 years of age and constituted his most serious matter prior to the index offence. Despite this, his Honour described that offence as happening more recently in 2016 and noted his escalating criminality. His Honour noted: "There is no antecedent offence of a sexual nature. The Background Report observes his escalation of seriousness of offending from divergent offences and that his offending displays a pattern of violation of rights of others."
Sixth, the subjective cases of the applicant and HA were similar to the extent that both of the offenders had had disadvantaged childhoods. HA grew up in a family involved in the criminal milieu where he was exposed to domestic violence, whereas the applicant was a refugee who was subjected to physical abuse by his uncles and was living in youth refuges by the age of 13.
Seventh, both offenders received a discount of 15% for their pleas of guilty.
Eighth, both of the offenders had some history of drug abuse to the extent that the applicant had a problematic history of cannabis use and HA had a pattern of alcohol-related offending.
Ninth, a comparison of the applicant's intellectual functioning with that of HA shows that, whereas the applicant suffers from depression, conduct disorder and substance abused disorder, he does not suffer from any intellectual disability. The evidence was that he was at least in the low average range for intellectual functioning but may had some cognitive deficits, particularly in verbal reasoning. The applicant, on the other hand, was assessed as being in the borderline range for intellectual functioning, although he did not meet the criteria for an intellectual disability.
Tenth, his Honour did not make any express finding as to the prospects of rehabilitation for either of the applicant or HA. Despite this, his Honour made findings relevant to this issue in relation to both of them. His Honour noted the applicant's plans regarding enrolling in TAFE but also noted that these long term goals may be difficult to achieve if he continued to be in conflict with his teachers and other students. HA, on the other hand, was described by his Honour (in the context of a finding of special circumstances) as needing to continue his "positive rehabilitation identified in the Background Report". HA's background report was very favourable on this issue.
Eleventh, his Honour made a finding of special circumstances in relation to both offenders. The ratio between the non-parole period and head sentence for both the applicant and HA was 55%.
Twelfth, there was a significant difference between the number of punishments for misbehaviour that each of these offenders received. Whereas the applicant had received 41 such punishments, HA had only received one - which was in fact a conflict with the applicant. The applicant's punishments were for fighting with other detainees, disobeying directions and harassing staff and other detainees.
Thirteenth, neither of the two young males expressed any remorse. Although the applicant refused to discuss the offences with his caseworker he did make some comments consistent with victim blaming. HA did not express any remorse either. Although HA ran from the room apologising when he saw the blood emanating from the victim's injury, he told his caseworker that he was concerned that he had damaged his own penis.
Finally, another difference between the subjective case of the applicant and HA was the progress they had each made whilst in detention. The applicant had been withdrawn from school altogether due to misbehaviour and was unwilling to attend a residential rehabilitation facility after custody. HA, on the other hand, received "glowing" assessments by staff and had earned a high level of trust. He was undertaking year 12 studies at the time of the report and had also participated in sporting and cultural activities. He had been willing to engage in supervision and sex offender intervention.
In light of the fact that HA was already serving a sentence at the time that he came to be sentenced for these matters, his Honour backdated the present sentence for a period of three months to 27 October 2016. At that time HA still had a further two months to serve in relation to the unrelated robbery offences. The applicant has included this period of backdating in his comparison of the sentence imposed on the applicant and that imposed on HA. That is, he seeks to make the comparison exclusive of the three months referable to both this offence and HA's robbery in company offence.
In Kelly v R [2017] NSWCCA 256, Beech-Jones J (with whom Basten JA and Fagan J agreed) at [39] approved of statements made by Hoeben CJ at CL in Ayik v R [2013] NSWCCA 119 at [39] that "it is artificial to isolate out that part of the sentence of the co-offender that was solely referable to the common offence and ignore that part of the sentence for the common offence that was running concurrently with the sentence for other offences." It is not appropriate to discount that portion of HA's sentence that was imposed to be served concurrently with his earlier sentence when seeking to compare his sentence with the applicant's for the purposes of identifying any disparity.
On one view it is difficult to conclude that there has been an error in the exercise of the sentencing judge's discretion when the relevant difference is only five months in terms of the non-parole period and four months as between the head/aggregate sentences. However, it is the applicant's argument that he should have received less than HA in the first place rather than more thus this difference should have been even greater. On the other hand, in circumstances where the offences committed at a time when the applicant and his co-offenders were still juvenile offenders, I do not consider it appropriate to categorise this disparity as insignificant. A difference of this degree may well seem less significant when comparing two much higher sentences imposed on older offenders.
Overall, when regard is had to all of the features listed at [99]-[121], it is clear that there were many aspects of the applicant's case, both objective and subjective, which were more favourable than those of in HA's case. The only significant difference in HA's favour was his positive background report and favourable rehabilitation and, to a lesser extent, the fact that he was seven months younger than the applicant. It is difficult to see why HA received a shorter sentence in these circumstances.
I have carefully considered the cases of both the applicant and HA and kept at the forefront of my consideration the fact that the applicant and HA were sentenced by the same judge at the same time. I am mindful of the relevant principles and have asked myself the same question as RA Hulme J did in Lloyd v R at [97] (quoted above at [95]): was the differentiation made by the judge between HA and the applicant one that was open to his Honour in the exercise of his discretion? I have come to the conclusion that it was not.
I am satisfied that the applicant has established error under this Ground. On that basis, I do not consider it necessary to determine Ground 5.

Re-sentencing

Error having been established, it is necessary for this Court to exercise afresh the discretion to re-sentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42].
An affidavit affirmed by the applicant on 31 October 2018 was filed on this application to be read in the event that error was established and the Court proceeded to re-sentence. In re-sentencing the applicant, I take into account the information contained in that affidavit. The applicant stated that the applicant was presently studying for a Certificate III in Visual Arts which he hopes to complete next term. He has completed the "Young Agents Course" and learned about business planning and was designing an "app" to help people in the community. He had also completed the "Save Our Mate" course about how to "assist mates in trouble, especially with drugs and alcohol" and he will also complete a first-aid course in the next few months. It would appear that the applicant's prospects of rehabilitation have improved since the time of his original sentence.
The applicant states that his uncle will be able to get him work at Aldi as a packer and that he would like to obtain a Forklift License, learn bricklaying and study business. He has applied for a pre-release program at Reiby Juvenile Justice Centre and is waiting for a reference from his caseworker for an interview. If the applicant is accepted into that program, it is hoped that he will transfer there until his release. That facility will assist in finding work and skills for managing in the community. The affidavit suggests that the applicant has significantly improved his conduct and has more positive prospects of rehabilitation than he did at the time he was sentenced in the District Court.
For the purpose of re-sentencing, I accept all of the findings made by the sentencing judge except, for the reasons provided in my consideration of Ground 2, the finding that the applicant had a leadership role. Consistent with the findings I have made above, I am mindful of the need in re-sentencing the applicant to achieve parity with the sentence imposed on his co-offender, HA.
I have had regard to the fact that the applicant was at the relevant time a juvenile offender who had pleaded guilty. The sentencing judge had relied upon the decision in Rainbow v R [2018] NSWCCA 442 and R v KB [2011] NSWCCA 190. I have had regard to the principles derived from those decisions but have not found the sentences imposed to be of particular assistance.
Having regard to the objective seriousness of the offending, the applicant's subjective features and the sentences imposed on his co-offenders, I consider that the appropriate sentence for the applicant is four years and six months imprisonment with a non-parole period of two years and five months to commence on 27 July 2016.

ORDER

For those reasons, I propose the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed and the sentence imposed at first instance is quashed. 3. The offender is sentenced to a sentence of imprisonment for four years and six months with a non-parole period of two years and five months, to commence on 27 July 2016. 4. The first date on which the applicant is eligible for release on parole is 26 December 2018. The sentence will expire on 26 January 2021.

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: 21 December 2018

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