Edwards v R

THE FACTS OF THE OFFENDING

1. The sentencing judge found the facts of the offending to be as follows. [1]

Background

1. Dong Hua He and Huan Luo were the proprietors of a convenience store located at 664 Elizabeth Street, Waterloo. At about 2:41pm on 11 June 2019, Mr He and Mrs Luo were standing behind the counter of their store, in the company of their 4 year old son, when the applicant and his co-offender Ivan Harris (Harris) entered the store. Upon entering, Harris walked to the back of the store, and the applicant stood near the counter area.

Count 1

1. At about 2:44pm a customer, Bob Tom (Tom), entered the store and approached the front counter. He removed a $100.00 note from his wallet and asked to purchase a $20.00 Opal Card "top up". He placed the $100.00 note onto the counter, holding his wallet in his left hand. Harris then began to walk out of the store followed by the applicant. Whilst passing by Tom, the applicant snatched his wallet and ran out of the store.

Count 2 and the Form 1 offence

1. A short time later, the applicant and Harris re-entered the store. Both had hoods pulled up over their heads. Harris returned the wallet to Tom by throwing it on the counter in front of him. At that time, the applicant was standing next to Harris near the counter. The applicant then produced a large knife and stood at the counter, behind which Mr He, Mrs Luo and their four-year-old son were standing. Brandishing the knife in their direction, the applicant said: If you don't want anything to happen to the boy, give me the money.
2. Mrs Luo became very scared and handed the applicant the $100.00 note that Tom had earlier placed on the counter, and which had remained there in the interim. At that point the applicant again waved the knife towards the cash register. Mr He opened the register and removed approximately $200.00 which he then handed to the applicant. As this was occurring, Harris stood between Tom and the doorway of the store saying: Don't move…… 5,4,3,2,1, don't move
3. Having received the $200.00 from Mr He, the applicant and Harris left the store. The applicant was arrested by police about 5:50pm that day. Harris was arrested a number of days later.
4. CCTV footage of the incident, [2] which I have viewed, confirms the facts found by the sentencing judge. The applicant's behaviour with the knife is clear, as are the terms of the threat he made regarding the victim's young son. In that regard, it is noted that count 2 was constituted by the robbery in company offence involving Mr He as the victim. The corresponding offence in the Form 1 related to Mrs Luo.

The objective seriousness of the offending - the findings of the sentencing judge

Count 1

1. The sentencing judge concluded that the offending in count 1 fell within the "upper echelon of the lower range of objective seriousness." [3] In reaching that conclusion, his Honour took into account that: 1. the offending was of short duration and appeared to have been entirely opportunistic; 2. Tom's wallet was an item of limited value which was returned; and 3. the offending was committed in the presence of a young child. [4]

The Form 1 offence

1. His Honour observed that the Form 1 offence was characterised by a number of the factors referred to by this Court in R v Henry. [5] He concluded that the objective seriousness of this offence fell "somewhat above that of the typical case" discussed in Henry, though more so for the applicant than Harris, given their differing roles. [6] In reaching that conclusion, his Honour took into account that: [7] 1. there were two people involved (that being the minimum number of persons required to commit the offence); 2. there was a limited degree of planning; 3. there was limited, if any, actual violence (although there was a real threat of violence); 4. the victim, Mrs Luo, was in a vulnerable position as a shopkeeper; and 5. a small amount of money was taken.
2. His Honour also found that the offending was aggravated by the fact that: 1. it was committed in the presence of a four year-old child; and 2. it involved the use of a knife. [8]
3. His Honour also noted that the various matters to which he had referred were relevant to assessing the increment to be applied to the sentence imposed in respect of count 2, to which the Form 1 attached. [9]

Count 2

1. His Honour concluded that the objective seriousness of the offending in count 2 fell "somewhat above" that of the typical case, again more so for the applicant than Harris given their respective roles. [10] He found that the offending was characterised by the same factors he had identified in respect of the offending to which the Form 1 related, [11] including the fact that it involved the use of a knife and was committed in the presence of a 4 year old child. [12]
2. His Honour concluded that the offending overall was aggravated by the fact that the applicant was on conditional liberty at the time. [13] In that regard, the applicant was on bail for offences of affray and escaping from lawful custody, and on probation for offences of damaging property and breaching an Apprehended Violence Order.

The applicant's subjective case

1. A report of Vanessa Edwige, Registered Psychologist, was tendered in the applicant's case on sentence. [14] In that report, Ms Edwige set out the applicant's background, which was not in dispute and which may be summarised as follows.
2. The applicant is an indigenous young man who was born in Bourke, NSW. He is currently 20 years of age was 18 years of age at the time of the offending. Up to the age of 2 he lived in Bourke with his parents, each of whom abused drugs and alcohol. His mother then fled to Sydney to escape significant domestic violence at the hands of the applicant's father. Upon relocating to Sydney, the applicant's mother established a relationship with another man who was also extremely violent towards her. The applicant was constantly exposed to that violence. Having terminated that relationship, the applicant's mother then formed a relationship with another man who formed a close relationship with the applicant, but who was subsequently fatally wounded in an attack witnessed by both the applicant and his mother. Following that event the applicant, who was then just 5 years of age, was removed from his mother's care. That was an obviously traumatic event, the applicant's mother describing him becoming "hysterical" when officers of the Department of Community Services arrived to take him into their care.
3. Following his removal from his mother, the applicant was placed in various care arrangements, at least some of which were both unsupportive and productive of yet further trauma. In one placement, those entrusted with the applicant's care assaulted him. In another, he was sexually abused by a young person who had been placed in the same care arrangement. Due to all of these circumstances, the applicant attended multiple primary and secondary schools. His behaviour was challenging, he was aggressive towards other students, and he was suspended frequently.
4. The applicant first entered a Juvenile Justice facility at the age of 11, following which he was released into the custody of his aunt who lived in Sydney. Despite only being in her 20's at the time, the applicant's aunt assumed her responsibilities with great diligence. The applicant was enrolled to undertake counselling, and was also enrolled at a school which specialised in students who had exhibited challenging behaviour. The applicant remained at that school intermittently over a period of approximately 10 months, although as his behaviour became worse, he entered other Juvenile Justice facilities during this period.
5. The applicant started smoking marijuana at the age of 11 and continued to do so until he was 17. He also consumed alcohol over the same period but does not drink alcohol now. Having commenced using crystal methamphetamine at approximately 13 years of age he quickly became dependent on it, reporting significant paranoia and an increase in aggression when he consumed it. He also said that using that drug caused him to be extremely violent and made him "do things that he didn't want to do." Although the applicant has attended drug and alcohol rehabilitation programs, his behavioural issues have been such that he has only been able to remain in those programs for intermittent periods.
6. The applicant has effectively looked after himself since the age of 11. He has slept on the streets regularly. He spent time with his uncle at one point, who himself was involved in criminal activities. The applicant's extended family members have had drug and alcohol issues, have experienced significant and cumulative trauma, and have been exposed to significant violence, both of a sexual and physical nature. All of these factors rendered it impossible for them to provide the applicant with any real degree of support during his formative years.
7. Ms Edwige noted a previous diagnosis of Attention Deficit Hyperactivity Disorder for which the applicant was prescribed Ritalin. The applicant told her that he used to take Ritalin when he was in primary school but had not taken it since that time. He said that he never had counselling of any kind, be it for the sexual abuse he suffered, or the trauma he had experienced in the various care arrangements in which he was placed.
8. Ms Edwige concluded that the applicant's exposure to violence as a child meant that he grew up in an environment that was unpredictable and anxiety-provoking, and one that gave rise to a prolonged sense of fear. She concluded, in particular, that the applicant's exposure to parental violence placed him at risk of child abuse, neglect, and substance abuse. In that respect, Ms Edwige noted that children are particularly vulnerable to cumulative harm in families with multiple and complex problems, with research indicating that such factors diminish a child's sense of safety and well-being.
9. In addressing the applicant's current psychological state, Ms Edwige concluded that: 1. the applicant's multiple care placements had impacted upon his ability to form healthy attachments to a primary caregiver; 2. the unpredictability of never knowing how long he would be in one place had: 1. caused the applicant to internalise distrust, insecurity and a belief that he should suppress emotional responses; 2. impacted on his ability to form healthy relationships and attachments; and 3. resulted in the formation of maladaptive beliefs, leading to generalised anxiety, dysthymia and social dysfunction; 1. the applicant displayed a level of emotional detachment at traumatic events which portrayed a sense of hopelessness and defeat; 2. the applicant found it difficult to regulate his emotions, and felt intense anger leading to violent outbursts; and 3. the applicant's emotional detachment from his mother had been productive of a degree of resentment, particularly in light of the fact that his mother now had another younger child.
10. In terms of her diagnosis, Ms Edwige said: [15] At the time of the offence it is my clinical opinion that [the applicant] was suffering from Unspecified Trauma - and Stressor - Related Disorder and Substance Use Disorder and meets the diagnostic criteria for such in the DSM-5. [The applicant] presents with behavioural and emotional symptoms that are a direct response to the trauma he experienced as a child and adolescent. He has been exposed to violence throughout his life and has normalized that behaviour. It is my opinion that [the applicant's] behaviour and conduct are a result of the ongoing trauma he experienced. He has been unable to process this trauma and is in a constant state of fight, flight and freeze. [The applicant] has become reliant on substances [ice] as he has a reckless disregard for his own well-being. He uses substances to avoid unpleasant thoughts and feelings that are related not only to his current situation, though also to his former background.
11. Ms Edwige then continued: [16] [The applicant] presents with a history of behavioural difficulties. These behaviours can be best explained as developmental trauma. Children who have experienced significant trauma continue to operate from their primal brain (brain stem). They are inattentive, hyperactive, hypervigilant, in fight, flight mode, in survival mode and impulsive. They externalize their trauma through challenging behaviours. This presentation is very similar to the diagnostic criteria for ADHD. It is my opinion that [the applicant's] behavioural presentation is a result of developmental trauma. Further investigation is warranted to confirm a diagnosis of ADHD. [The applicant] presents as a young man who is immature for his age. Despite the fact that he is only 19 years of age, he is quite childlike in his understandings and his personal interactions. Overwhelming stress in utero and childhood affects the way the brain develops. Often, children who have experienced developmental trauma continue emotionally to operate from their primal brain and do not access other parts of their brain that are used for higher order thinking. [The applicant] does not appear to have an intellectual disability, though, without conducting a psychometric assessment, I am unable to say this with certainty.
12. Ms Edwige reported that the applicant had said that he was "very sorry" for what happened. She also reported that he had expressed a genuine motivation to change his life, and had acknowledged that his substance misuse had impacted upon his behaviour and was directly linked to his offending. In circumstances where the applicant had acknowledged the need for support, and had demonstrated a positive attitude towards engaging in ongoing therapy, Ms Edwige recommended a treatment plan incorporating (inter alia) ongoing psychological support.
13. A report of Daniel Daylight, the Program Manager of Weave Youth and Community Services was also tendered in the applicant's case before the sentencing judge. [17] Mr Daylight reported that he had previously mentored the applicant and said that he envisaged that upon the applicant's release from custody, drug and alcohol counselling, along with reconnecting with community in a positive way, would be the main priorities towards his ongoing rehabilitation. [18]
14. Other documents tendered in the applicant's case on sentence included extracts of chapters from the Bar Book Project published by the Judicial Commission of NSW dealing with the effects of childhood exposure to domestic and family violence, [19] as well as the effects of early exposure to drug and alcohol abuse. [20]
15. The applicant has a significant criminal history dating back to the age of 14 which includes offences of: [21] 1. destroying or damaging property; 2. having goods in custody suspected of being stolen; 3. aggravated breaking and entering and committing a serious indictable offence; 4. stalking and/or intimidating; 5. aggravated robbery; 6. being armed with intent to commit an indictable offence; 7. common assault; 8. aggravated assault; 9. larceny; 10. stealing from the person; 11. being carried in a vehicle taken without the consent of the owner; 12. escaping from lawful custody; and 13. affray.
16. The applicant gave sworn evidence before the sentencing judge in which he confirmed that he had told Ms Edwige the truth when he spoke with her. [22] He said that prior to the offending he had taken methamphetamines and Xanax, and had been under the influence of drugs for "a few days." [23] He said that he had not given any thought to his offending in advance, and described it as being "just spur of the moment." [24] He was asked: [25] Q: What do you think now about what you had done? A: It's wrong and shouldn't have been done. If I could look back, I - I wouldn't do it at all. Q: What do you think now when you look at what happened to the victims? A: I feel - feel remorseful for them. I wouldn't like anyone to walk in my shop and I'd have my trouble with them robbing me.
17. The applicant was then asked: [26] Q: Overall can you describe the effect of it on you? A: It's - it's more matured me up and more wise and I realise that - where I want to be in life. I don't want to be in here. It's changed me more into a better man.
18. The applicant gave evidence about the difficulties that he has experienced in custody as a consequence of the Coronavirus pandemic. He said, in particular, [27] that there had been an increase in lockdowns in custody as a consequence of which inmates were required to remain in their cells for extended periods. He expressed a feeling of uneasiness as a consequence of being in custody in those circumstances. [28] None of this evidence was challenged in cross-examination. The applicant expressed a willingness to engage in further counselling with Mr Daylight when released. [29] He confirmed that accommodation was available upon his release with one or other of his aunts. [30]
19. When cross-examined, the applicant accepted that he had been in possession of a knife at the time of the offending but denied that this was because he was intending to rob someone. He maintained that he found the knife "a few blocks away… just at a house…" [31] He also maintained that he had not noticed the presence of the victim's four year-old child when he had first entered the store, and had only noticed him when he had gone back inside. [32]
20. The applicant denied choosing Mr He and Mrs Luo as victims because he thought that they were vulnerable as a consequence of the presence of their young child. [33] He was asked: [34] Q: Did you threaten the four year old because it was more likely that they would give you the money without any trouble? A: No, I didn't threaten the four year-old. Q: We played the tape before, where you were heard saying - and it's in the agreed facts, that you say to the victims, "if you don't want anything to happen to the boy, give me the money". A: Yeah, I was just letting them know. Q: Know what? A: That they have a boy in the shop. Q: Were you letting them know you were going to hurt the four year-old if they didn't give you the money? A: Nah. Q: You just wanted them to think that you would. A: Not really. I just let them know that they had a boy in the shop.
21. When asked how, in light of his criminal history, the Court could have any confidence in his stated commitment to rehabilitation, the applicant said: [35] Because I've been to gaol and I don't want to come back. It's not a good place. I know different know [sic], and when opportunities comes [sic] I'm just going to reach out and grab them, and I don't - I'm not going to go back to that life.

The applicant's subjective case - the findings of the sentencing judge

1. The sentencing judge comprehensively summarised the report of Ms Edwige [36] as well as the report of Mr Daylight. [37] Having done so, his Honour said: [38] The Court is satisfied that [the applicant] has experienced significant deprivation as a consequence of the circumstances in which he was born, raised and remained throughout his life involving significant domestic and other violence, familial and other domestic dislocation as well as an environment of drug and alcohol abuse. Further, the Court is satisfied that [the applicant] was subjected to sexual abuse as a child and further consequential trauma resulted.
2. In light of these matters, and whilst his Honour concluded that the applicant's moral culpability for the offending remained "significant", [39] he found that such culpability was ameliorated by: [40] 1. the principles referred to in Bugmy v The Queen [41] ; 2. the fact that the applicant had engaged in drug abuse from a very early age as a consequence of the influences of those around him; 3. the applicant's mental health; and 4. the applicant's youth and immaturity.
3. However, his Honour found that the applicant's criminal history, whilst not an aggravating factor, was nevertheless significant, and counterbalanced the ameliorative effects of his age and relative immaturity. [42] His Honour also found that the applicant's mental health issues would render a custodial sentence more onerous. [43] However, he was not satisfied that it was possible for any sentence to reflect the actual and/or potential adverse effects on the applicant brought about by the current pandemic, given that custodial conditions arising from that circumstance are regularly reviewed by the relevant authorities. [44]
4. His Honour accepted that the applicant had pleaded guilty at the first available opportunity and was entitled to a discount of 25%. [45] He was satisfied that the applicant was genuinely remorseful and found, despite his extensive criminal history, that he had "guardedly good prospects of rehabilitation". [46] He concluded that it was premature to make a positive finding that the applicant was unlikely to reoffend in the future, but emphasised that this did not mean that he was satisfied that the applicant would do so. [47]
5. His Honour was satisfied that there were special circumstances arising from the applicant's age, the fact that this was his first time serving a sentence in custody, his mental health issues, the need to promote his drug abstinence and rehabilitation, and the need to facilitate his reintegration back into the community. [48] His Honour specifically considered the issue of parity before imposing the sentence previously set out. [49]
6. In reaching all of these findings, his Honour was properly mindful of the fact that the total effective non-parole period could not be less than that required to reflect the minimum period that the applicant should spend in custody in order to appropriately reflect the criminality for which he was being sentenced. [50]

The aggregate sentence is manifestly excessive considering the objective of seriousness of the offence, as well as the applicant's subjective case.

Submissions of the applicant

1. Although the sentencing judge incorrectly stated [51] that the applicant was aged 19 at the time of the offences and 20 at the time of sentence (in circumstances where he was in fact aged 18 and 19 at those respective times) counsel for the applicant did not rely upon that as a substantive error of a kind which would justify the intervention of this Court. Moreover, counsel did not take issue with any of the factual findings which had been made by the sentencing judge.
2. However, counsel submitted that the structure of his Honour's reasons, and particularly the references to the decision in Henry, had "distracted" his Honour from a proper consideration of the issues. This, it was submitted, had resulted in a misinterpretation of the decision in Henry, and the consequent imposition of a sentence which was manifestly excessive. It was submitted that although his Honour had acknowledged the important mitigating factors relied upon by the applicant, those factors were not properly reflected in the sentence which was imposed, to the point that his Honour's references to the decision in Henry had "cut across" his findings in respect of the applicant's subjective case, and his assessment of the report of and opinions of Ms Edwige.
3. Further, and to the extent that his Honour had found that the applicant's criminal history was a factor which distinguished his offending from the circumstances referred to in Henry, counsel submitted that rather than applying a focus to the history itself, his Honour should have enquired as to why it was that the applicant had that history at such a young age. It was submitted that such an enquiry, had it been made, would have resulted in his Honour applying a proper focus to the applicant's subjective case generally, and to the circumstances of his youth and upbringing in particular.
4. Whilst counsel for the applicant acknowledged the objective seriousness of the offending, he highlighted that it had not been planned, and that it had all occurred within the one course of criminal conduct. Counsel also emphasised what he described as the applicant's "most compelling subjective case", characterised by: 1. his age and immaturity; 2. the significant hardship he had suffered from an early age; 3. his early pleas of guilty; 4. his expressions of remorse; 5. the difficult conditions of his custody, which were rendered more onerous as a consequence of his mental health issues; 6. the risk of institutionalisation.

Submissions of the Crown

1. The Crown emphasised the objective seriousness of the applicant's offending, particularly the fact that it was aggravated by the applicant's use of a knife, and that it was committed in the presence of a four year-old child whom the applicant had threatened. Whilst accepting that the offending in the Form 1 had occurred in the same course of criminal conduct as that in which the offending in counts 1 and 2 had been committed, the Crown submitted that the sentencing judge was correct to conclude that the offending in the Form 1 warranted an increase in the sentence for count 2 in order to reflect the necessity to give greater weight to specific deterrence and retribution. The Crown also pointed to the fact that the applicant had been on conditional liberty at the time of the offending in two separate respects, and in relation to four different types of offending.
2. The Crown pointed to the detailed consideration given by the sentencing judge to the applicant's upbringing, and expressly acknowledged the applicant's deprived and tragic childhood which had led to complex personal issues in his life. However, the Crown pointed to the fact that the sentencing judge had nevertheless found that the applicant had significant moral culpability for his offending, and emphasised that there was no challenge before this Court to that (or any other) finding made by his Honour.
3. Finally, the Crown submitted that the degree of accumulation applied by the sentencing judge was appropriate and that in all of the circumstances, including his Honour's adjustment of the ratio between the head sentence and the non-parole period to one of 68%, the sentence imposed was not manifestly excessive.

Consideration

1. In order to succeed on this ground the applicant must establish that the sentence which was imposed was unreasonable or plainly unjust. [52] In considering that question, it is necessary to bear in mind that sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach, and with applicable sentencing principles. This Court will not interfere with a sentence simply because it may have exercised the sentencing discretion differently. [53]
2. In Henry, Spigelman CJ (with whom the other members of the Court agreed) identified a "typical" case of armed robbery as having the following characteristics: [54] 1. a young offender with no or little criminal history; 2. the use of weapon (such as a knife) capable of killing or inflicting serious injury; 3. a limited degree of planning; 4. limited, if any, actual violence but a real threat thereof; 5. a victim in a vulnerable position, such as a shopkeeper or taxi driver; 6. a small amount taken; 7. a plea of guilty [55] , the significance of which is limited by a strong Crown case.
3. Spigelman CJ concluded that sentences for an offence characterised by those factors should generally fall between 4 and 5 years for the full term. Subsequently, this Court concluded that the guideline promulgated in Henry was also applicable to offences of robbery in company. [56]
4. In am unable to accept the submission that his Honour's consideration of the decision in Henry distracted him in the manner in which counsel for the applicant suggested. His Honour's approach to that decision was, in my view, both methodical and wholly principled. In particular, his Honour properly pointed out that: 1. this was not a case where the applicant had little or no criminal history; [57] 2. the applicant's offending was aggravated by the presence of the victims' young child who was, in an indirect sense, the target of a serious and immediate threat of violence, such threat being carried out with the simultaneous brandishing of a knife; [58] and 3. the offending was further aggravated by the fact that the applicant was on conditional liberty, in two separate respects, at the time. [59]
5. Further in my view, his Honour's assessment of the applicant's subjective case was a careful and comprehensive one, in which he assessed all relevant considerations. The proposition that his Honour failed to properly consider the applicant's criminal history is answered by the simple fact that his Honour was not asked to undertake the enquiry which counsel for the applicant before this Court suggested ought to have been undertaken. The written submissions provided to the sentencing judge by counsel then appearing for the applicant advanced no such submission, [60] and the oral submissions of counsel simply acknowledged the applicant's criminal history without taking the matter any further. [61] There was therefore no error in the manner in which his Honour approached the issue of the applicant's criminal history.
6. There is no doubt that the applicant's subjective case was one deserving of considerable weight. He has had what could only be described as a severely disadvantaged upbringing from a very young age, characterised by exposure to serious violence, as well as drug and alcohol abuse. The tragedy which brought about the applicant's separation from his mother was exacerbated by the further trauma he suffered in various care placements, forcing him into a life without a home, without parental love and guidance, and without appropriate role models. The reasons of the sentencing judge make it clear that he took all of these factors into account.
7. At the same time, no issue was taken before this Court with the sentencing judge's assessment of the objective gravity of the applicant's offending. Whilst that gravity speaks for itself, the applicant's use of a knife to threaten the safety of a 4 year old child is particularly disturbing. The applicant was also subject to two different forms of conditional liberty at the time, and had a lengthy criminal history which included multiple offences of violence. All of these factors distinguished the applicant's offending from that considered by Spigelman CJ in Henry. It is also important to bear in mind that although the applicant had engaged in the one course of conduct, he committed more than one offence. Moreover, in imposing a sentence for count 2, his Honour was required to take into account the Form 1 offence which meant that the sentence for count 2 was longer than would have been the case had that count stood alone. [62]
8. In one sense, the submissions advanced by counsel for the applicant before this Court appeared to be underpinned by the general proposition that the sentencing judge had failed to afford the appropriate degree of weight to the applicant's subjective case. To the extent that this was the applicant's complaint, it is one which necessarily assumes that the sentencing judge gave some weight to that subjective case. This Court has observed on a number of occasions that that attribution of weight to a particular factor is a matter for a sentencing judge. [63] The sentencing judge in the present case thoroughly considered each and every aspect of the applicant's subjective case. In particular, the matters arising from the applicant's upbringing which were dealt with by Ms Edwige were comprehensively addressed.
9. Finally, and bearing in mind the focus placed by counsel on the applicant's subjective case, it is necessary to emphasise that there must be reasonable proportionality between any sentence imposed, and the gravity of the particular offending. [64] An offender's subjective case, however powerful, must not be permitted to result in the imposition of a sentence which fails to reflect that gravity. In particular, the fixing of a non-parole period is not a matter to be determined solely, or even primarily, by reference to considerations of rehabilitation. [65] As the sentencing judge properly pointed out, a non-parole period is to be fixed by what a sentencing court concludes that all of the circumstances of the case (including the need for rehabilitation) indicate should be the minimum period of actual incarceration. [66]
10. In my view, the approach taken by the sentencing judge was entirely consonant with those principles. The sentence imposed was within the bounds of the proper exercise of the sentencing discretion and was neither unreasonable nor plainly unjust.
11. It follows that the ground of appeal is not made out.

ORDERS

1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.
2. BUTTON J: I have had the very considerable benefit of reading in draft the judgment of Bellew J. In that judgment, his Honour comprehensively, with respect, summarises all of the objective and subjective factors upon which one needs to reflect in assessing whether the aggregate sentence of 4 years 9 months with a non-parole period of 3 years 3 months imposed upon this applicant is manifestly excessive.
3. I have respectfully come to the contrary view that it is, based upon the age of the applicant of 18 years 8 months when he committed these offences, and, more significantly, his atrociously deprived, disrupted, and traumatic upbringing.
4. Without repeating all that the primary judge and Bellew J have written, to my assessment, in its extremity the background of the applicant goes well beyond the often encountered lives of material and emotional impoverishment and deprivation that burden the great majority of people - a disproportionate number of them Indigenous - who come before the criminal courts charged with serious matters.
5. It is a background that was almost inevitably criminogenic, featuring, amongst other things: being born into a world of alcohol and drug abuse, and concomitant violence and criminality; witnessing the murder of one's stepfather at the age of 5; living on the streets from the age of 11; commencing to smoke ice from the age of 13.
6. Furthermore, whilst such a background does not excuse the undoubtedly serious record for crimes of violence that the applicant had already accumulated by the time he became an adult, and the breaches of multiple forms of conditional liberty constituted by the offences under consideration, I believe that it goes a very long way to explain that record.
7. Underpinning my view of the ground of manifest excess is the following analysis of the sentence "structure" adopted by the learned sentencing judge, appreciating of course that only the aggregate sentence actually imposed is amenable to appeal.
8. The indicative sentence of 9 months, after the application of a 25% discount, provided for the steal from person upon a victim in his eighties, is unimpeachable.
9. The indicative head sentence for the substantive robbery in company (taking into account the closely related robbery in company on the Form 1), is 4 years 3 months (expressed by the sentencing judge as 51 months). Removing the 25% discount, the starting point for that indicative sentence was 68 months, or 5 years 8 months.
10. In my opinion, despite the deplorable and undoubtedly aggravating fact that the robbery featured a four-year-old child being threatened with harm by the applicant whilst armed with a knife, and despite his criminal record, and despite the resultant breaches of conditional liberty, a starting point of 4 months short of 6 years after a putative trial would have simply been too much, in all of the circumstances of this case.
11. In saying that, whilst it is true that the criminal record of the applicant featured similar crimes in the past, I note that the longest previous period of mandatory incarceration imposed upon the applicant was an aggregate control order of 4 months 3 weeks in August 2018.
12. Relatedly, on reflection I have come to the view that the ultimate aggregate head sentence of 4 years 9 months - to which the indicative sentence for the robbery in company was clearly a very significant contributor - is also beyond the sentencing discretion reposed in the primary judge. And I say that well aware that, at first blush, that aggregate sentence seems to be generally unexceptionable, and in particular to fit comfortably within the quantum spoken of in the seminal guideline judgment.
13. My simple point is that this is a case of exceptionally damaging deprivation even by the standards of the criminal justice system, and an aggregate head sentence of almost five years that would in other cases be unimpeachable is rendered manifestly excessive as a result.
14. In short, I am satisfied that the error complained of is established.

Resentence

1. Exercising the sentencing discretion afresh, I would replicate the indicative head sentence of 9 months for the steal from person, having commenced from a replicated starting point of 12 months or one year.
2. As for the indicative sentence for the robbery in company, and taking into account the Form 1, I would adopt a starting point of 54 months, or 4 years 6 months. That is substantially less than the indicative sentence provided by the sentencing judge. Even so, it is a not insignificant sentence after putative trial, for what was really a single robbery with two victims, to be imposed notionally upon an 18-year-old who committed a very unsophisticated though no doubt terrifying robbery and netted $200, possessing the life history detailed in the judgment of Bellew J.
3. Applying a 25% discount, one arrives at an indicative sentence for the robbery in company of 40 months 2 weeks, which I would round down to 3 years 4 months.
4. Reflecting on totality and notional cumulation as between the two indicative sentences of 9 months and 3 years 4 months for two similar and closely related offences, I would impose an aggregate head sentence of 3 years 9 months.
5. Finally, I would replicate the finding of special circumstances and adjust the statutory ratio, as did the primary judge. Even so, to replicate the ratio of 68% with regard to this significantly shorter aggregate head sentence would lead to a non-parole period that does not reflect the objective gravity of what happened here, nor the criminal record of the applicant.
6. I would impose a non-parole period of 2 years 8 months. That means that the ratio between the non-parole period and the head sentence would be about 71%.
7. I am the first to accept that an aggregate head sentence of 3 years 9 months with a non-parole period of 2 years 8 months is an unusually lenient sentence to impose upon a young man who did what the applicant did, and who possessed his criminal record when he did it. But I believe that the sentence to be imposed upon him needs to reflect the extremity of the deprivation that he has suffered over many years through no fault of his own. It is also to be borne in mind that it is quite possible that, in light of his previous failures on conditional liberty, the applicant will not be released on parole at the end of his non-parole period, or indeed at all.
8. Finally, the parties informed the Court in writing after the hearing that, if the appeal were upheld, the commencement date of a further sentence imposed on 11 February 2020 for another robbery, committed on 15 April 2019, should be adjusted, in order to preserve the intention of that subsequent sentencing judge that the non-parole period of the applicant be extended by three months, and the aggregate head sentence not at all. Neither party submitted that that recently discovered sentence should be taken into account in determination of the ground itself.
9. Pursuant to s 59 of the Crimes (Sentencing Procedure) Act 1999 (NSW), I propose to adjust that commencement date, appreciating that the further extension of the mandatory minimum time in custody created by that sentence takes the ratio between the aggregate head sentence and the total non-parole period very slightly past the statutory ratio.

Proposed orders

1. The orders I propose are: 1. Leave to appeal granted. 2. Appeal against sentence upheld. 3. The sentence imposed by Judge Ingram SC on 22 May 2020 is quashed. 4. In substitution, an indicative sentence of 9 months is provided for the steal from person. 5. An indicative sentence of 3 years 4 months is provided for the robbery in company, taking into account the offence on the Form 1. 6. The applicant is sentenced to an aggregate head sentence of imprisonment for 3 years 9 months, to commence on 11 June 2019, and expire on 10 March 2023, with a non-parole period of 2 years 8 months, to expire on 10 February 2022. 7. The commencement date of the sentence imposed on 11 December 2020 for an offence of robbery is adjusted from 11 November 2021 to 11 April 2021. 8. In accordance with those orders, the first possible release date of the applicant appears to be 10 May 2022.

Endnotes

1. Commencing at AB 11.
2. Exhibit 5
3. AB 13.
4. AB 12.
5. (1999) 46 NSWLR 346; [1999] NSWCCA 111;
6. AB 14.
7. AB 13-14.
8. AB 13-14.
9. AB 14.
10. AB 15.
11. AB 14-15.
12. AB 15.
13. AB 22.
14. Exh. EA, AB 123-134.
15. AB 130.
16. AB 131.
17. Exh EB; AB 136-137
18. AB 136.
19. Exh EC; AB 139-148.
20. Exh ED; AB 150-157.
21. AB 81-94
22. AB 181.
23. AB 182.28 - AB 182.39.
24. AB 182.41 - AB 182.43.
25. Commencing at AB 182.48.
26. AB 183.11 - AB 183.14.
27. AB 184.24 and following.
28. AB 184.48 - AB 184.49.
29. AB 185.9 - AB 185.11.
30. AB 185.21 - AB 185.36.
31. AB 186.8 - AB 186.18.
32. AB 186.27 - AB 186.37.
33. AB 187.15 - AB 187.17.
34. AB 187.19 - AB 187.36.
35. AB 188.27 - AB 188.29.
36. Commencing at AB 15.
37. AB 19 - 20.
38. AB 20.
39. AB 22.
40. AB 20-21.
41. (2013) 249 CLR 571; [2013] HCA 37.
42. AB 23.
43. AB 21.
44. AB 30.
45. AB 23.
46. AB 24.
47. AB 24.
48. AB 36.
49. AB 31 - AB 33.
50. AB 36.
51. AB 32.
52. Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.
53. Markarian at [15].
54. At [162].
55. For the purposes of (vii), the plea of guilty contemplated is a "late" plea. As already noted, the applicant's pleas of guilty were entered at the first available opportunity in the Local Court, leading to a discount of 25%.
56. R v Murchie [1999] NSWCCA 424; (1999) 108 A Crim R 482.
57. AB 23
58. AB 13.
59. AB 15.
60. AB 159-166.
61. AB 206.
62. Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518.
63. R v Baker [2000] NSWCCA 85 at [11]; Ryan v R [2009] NSWCCA 183 at [33].
64. R v Amati [2019] NSWCCA 193 at [120] per Johnson J and the authorities cited therein.
65. R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 per Spigelman CJ at [59].
66. Simpson at [59] citing Power and ors. v The Queen (1974) 131 CLR 623; [1974] HCA 26. 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: 09 April 2021