Harris v R

Court of Criminal Appeal (NSW)|2021-11-24|Before: Ierace J, Dhanji J

Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (NSW) (Crown) File Number(s): 2019/192692 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 22 May 2020 Before: Ingram DCJ File Number(s): 2019/192692

Judgment

SIMPSON AJA: I agree with Dhanji J.
IERACE J: I agree with Dhanji J.
DHANJI J: The applicant, Ivan Paul Wayne Harris, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Ingram SC DCJ on 22 May 2020 in the District Court at Campbelltown.

Background

The applicant pleaded guilty in the Local Court to one count of robbery in company contrary to s 97(1) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 20 years imprisonment.
A further offence of robbery in company was taken into account on a Form 1 along with three offences of possessing a prohibited drug (contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW)). The drug possession offences carry a maximum penalty of 2 years imprisonment and/or 20 penalty units.
The applicant was also sentenced for one count of carry cutting weapon, contrary to s 547D of the Crimes Act that was before the District Court pursuant to a certificate under s 166 of the Criminal Procedure Act 1986 (NSW). That offence carries a maximum penalty of 6 months imprisonment and/or 5 penalty units.
On 22 May 2020 the applicant was sentenced to an aggregate term of 4 years and 5 months imprisonment commencing on 20 June 2019 and expiring on 19 November 2023 with a non-parole period of 3 years expiring on 19 June 2022. The indicative sentences were as follows: Count 1: 4 years and 3 months imprisonment; S 166 offence: 6 months imprisonment.
The applicant's co-offender, Mr Dwayne Edwards was sentenced for one count of stealing from the person (contrary to s 94(b) of the Crimes Act; maximum penalty of 14 years imprisonment) and one count of robbery in company, with a further offence of robbery in company taken into account on a Form 1 in relation to the latter offence. Proceedings on sentence were conducted jointly with the applicant on 7 April 2020 and both offenders were sentenced by Ingram DCJ on 22 May 2020.
Mr Edwards was sentenced to an aggregate term of 4 years and 9 months imprisonment with a non-parole period of 3 years and 3 months. The indicative sentences were 9 months for the stealing from the person offence and 4 years, 3 months for the robbery in company.
Mr Edwards sought leave to appeal against his sentence on the basis of manifest excess. His application for leave was granted but the appeal was dismissed: Edwards v R [2021] NSWCCA 57 (per Payne JA and Bellew J, Button J dissenting).
The applicant seeks leave to appeal on the following grounds: "Ground one: The sentence is manifestly excessive. Ground two: The applicant has a justifiable sense of grievance in the final result when considered against the sentence imposed on the co-offender."
The applicant also requires an extension of time. Affidavits were filed in relation to the delay. The Crown submitted that the extension of time should be considered in light of the merits of the appeal.

Factual background

Agreed facts were tendered in relation to the applicant and his co-offender. The offences were also captured on CCTV. The footage was tendered in the District Court and made available to this Court. I have viewed that footage.
At around 2:41pm on 11 June 2019 the applicant and Mr Edwards entered a convenience store in Waterloo. Two shopkeepers, Mr He and his wife Ms Luo were present at the counter with their four-year-old son. The applicant and Mr Edwards walked around the store and the counter area for two or three minutes.
At around 2:44pm Mr Tom, an 81-year old man, entered the store and placed a $100 note on the counter. He asked Ms Luo to place $20 credit on his Opal card. At around this time the applicant began walking out of the store followed by Mr Edwards. Mr Edwards snatched Mr Tom's wallet out of his hand as he ran past leaving the store with the applicant. The wallet only contained personal items and did not have any money. The applicant was not charged in relation to this aspect of the matter, and indeed appears to be looking away from Mr Tom when Mr Edwards snatched the wallet from Mr Tom.
A short time later the applicant and Mr Edwards returned to the store with the hoods of their jackets pulled up. The applicant approached Mr Tom and rummaged in the pocket of his hoodie before returning Mr Tom's wallet by throwing it on the counter.
Mr Edwards, who was standing next to the applicant, then produced a knife. He stood at the counter pointing the knife towards the cash register, where Ms Luo and Mr He were standing with their son. Mr Edwards said, "if you don't want anything to happen to the boy give the money". Ms Luo was scared and gave Mr Edwards the $100 note that was sitting on the counter.
Mr Edwards then waved the knife towards the cash register. The applicant, who had stepped backwards towards the door (blocking Mr Tom from exiting the store), said "don't move". The applicant started counting and said, "five, four, three, two, one". Mr He gave Mr Edwards $200 cash from the register. The applicant then repeated, "don't move" and he and Mr Edwards left the store.
Mr Edwards was arrested and charged later that evening. The applicant was arrested nine days later on 20 June 2019. When arrested, the applicant was carrying a "satchel bag" which contained: a folding knife with a 10cm blade; one clear resealable bag containing 0.2g cannabis; three clear resealable bags containing 1.16g methylamphetamine; and three clear resealable bags containing 0.06g heroin.

Proceedings on sentence

Proceedings on sentence were conducted jointly with Mr Edwards on 7 April 2020. A Crown bundle was tendered containing a notice of committal, charge certificate, s 166 certificate, Form 1, agreed facts and the applicant's criminal and custodial history. The Crown also tendered a Corrective Services NSW "response to COVID-19" document, JIRS statistics, written submissions and the DVD containing CCTV footage of the offences. Counsel for the applicant tendered a psychiatric report, the Bar Book chapter on Out-of-Home Care, an affidavit of the applicant affirmed on 13 March 2020 and written submissions.
The report of Dr Gerald Chew, consultant general and forensic psychiatrist, set out the applicant's background. He was born in Broken Hill, one of four children including a twin brother. The applicant was removed from his parents at the age of 3 and placed into foster care with a number of different families (with eight or nine placements over the course of eight years). He reported experiencing physical abuse and witnessing domestic violence. The applicant also reported being sexually abused as a child but did not wish to discuss the abuse with Dr Chew.
The applicant reported "significant" drug issues, including consuming 3-4g of heroin and 3-4g of methylamphetamine daily around the time of his arrest. He had also used cannabis "on and off" for many years but denied consuming alcohol.
The applicant reported previously hearing voices in the context of significant drug use or times of stress. He denied any current psychotic symptoms but reported that his mood was "up and down" and he often had flashbacks and nightmares due to his childhood trauma.
In relation to the offences, the applicant told Dr Chew he "felt extremely sorry" and that his cousin, Mr Edwards, had not informed him what was going on. He said he felt "set up" by Mr Edwards but was remorseful for his own involvement.
Dr Chew opined that the applicant met the diagnostic criteria for Complex Post-Traumatic Stress Disorder (PSTD) and Cluster B Personality Disorder, complicated by a severe substance use disorder. Dr Chew also reported that the applicant had previously been diagnosed with a heart murmur and had experienced ongoing chest pain and palpitations which Dr Chew believed required further investigation.
Dr Chew concluded that a term of imprisonment would weigh more heavily on the applicant as an Aboriginal man with significant health issues, who was at risk of institutionalisation. Dr Chew recommended that the applicant receive treatment for his cardiac condition and participate in a residential rehabilitation program before his release into the community.
The applicant gave evidence in the proceedings on sentence. He adopted the contents of his affidavit, which described his personal history including that his father passed away when he was three years old and he and his siblings were placed into foster care due to a custody dispute between his mother and paternal grandmother. He spent the next eight years in different foster homes, including one placement at which he was physically abused on a daily basis by being beaten with an electrical cord and was not provided with adequate food. The applicant also stated he was sexually abused by his foster carer at this placement and was not permitted to visit his mother or maintain cultural connections with the Aboriginal community.
When the applicant was 11 years old he returned to his mother, who shared custody with his grandmother. His mother commenced a new relationship with a man who was violent towards the applicant and his mother. The applicant recalled cleaning blood off the floor but stated he did not think it was strange at the time and believed the violence he witnessed was "normal". The applicant did not recall regularly attending school until Year 3. He attended school in Brisbane for a year and a half on a rugby scholarship before returning to Dubbo to care for his maternal grandmother, who was ill. He left school halfway through Year 10. The applicant worked consistently for seven and a half months when he was 19 years old but stopped working as his partner believed he was not spending enough time with their children. The applicant's two children were aged 2 and 5 years old respectively at the date of sentence.
The applicant recalled using drugs as a teenager, including alcohol, cannabis and ice. He used drugs as "a way of coping" with his experiences and to "block things out". He often got into fights when on drugs. The applicant also reported frequently being the subject of disciplinary action while in custody due to getting into fights with other inmates.
In his oral evidence the applicant described the conditions he had experienced while on remand for the past nine months, including frequent lock-ins during which inmates had no access to phone calls or showers. The applicant stated that he had been working as a sweeper for the past two months, which he described as "a massive step for me from all of my charges of fighting and doing this and standing over and all that." He said that this job had been a "wake up call" for him and that he had been required to complete drug tests to engage in this work. The applicant said that he had reflected on the offences and understood the gravity of the threat to the child, especially as he had two children himself. The applicant said he felt "ashamed" for his offending and understood that his actions were wrong.
In cross-examination the applicant said he did not mean to threaten the victims when he counted down from five. He said that he had only intended to "peer pressure" his cousin to "forget about it" and leave the store. He denied that his actions implied that something would happen to the victims when he finished counting. He was challenged as to this evidence, and while no specific finding was made by the sentencing judge, there was no suggestion that the applicant's evidence that he did not intend by his words to add to the threat being made was accepted was accepted by the sentencing judge in the face of that challenge.

Remarks on sentence

The sentencing judge set out the agreed facts as summarised above.
In relation to objective seriousness, his Honour noted that the robbery in company offence had a number of features of the "typical case" as described in R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 (found to be applicable to robbery in company in R v Murchie (1999) 108 A Crim R 482; [1999] NSWCCA 424). Those features were: a limited degree of planning; limited, if any, actual violence but a real threat thereof; a victim in a vulnerable position; and a small amount taken. His Honour noted that it was an aggravating feature that the offence was committed in the presence of a four-year-old child as well as being committed with a knife. His Honour concluded in relation to both the robbery in company offences that the objective seriousness was: "somewhat above the 'typical case' contemplated by [R v Henry], though, again, the role of [the applicant] is somewhat less than that of Edwards having regard to all of the factual circumstances."
In relation to the Form 1 drug offences his Honour found that the objective seriousness was in the "very low range" and would only warrant a "nominal increment" in relation to the robbery sentence. His Honour found the offence relating to the possession of the knife, was "objectively, quite a serious offence".
His Honour set out the applicant's subjective case including that he was aged 22 at the time of the offences and 23 at the date of sentence, which his Honour later found was "within the range" of the "typical case". His Honour had regard to the "significant deprivation" experienced by the applicant and found that his moral culpability was reduced in accordance with Bugmy principles (Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37). The sentencing judge also found that the applicant's moral culpability was reduced due to his early abuse of alcohol and drugs in accordance with the principles in R v Henry.
In relation to the applicant's mental health, his Honour found that his moral culpability was reduced in accordance with Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 and was satisfied that the applicant's time in custody would be more onerous. Having regard to all these factors, his Honour was nonetheless of the view that the applicant's moral culpability was "significant".
The sentencing judge had regard to the applicant's criminal history, commencing in the Children's Court in 2012 and continuing as an adult, with offences including contravening an ADVO and assault occasioning actual bodily harm in a domestic violence context. His Honour found that the applicant was not entitled to leniency in light of his criminal history and that his criminal history was more serious than that contemplated by R v Henry.
In relation to the subjective case of Mr Edwards, his Honour noted an expert report which set out that Mr Edwards had a history of "multiple childhood losses, parental/carer substance abuse issues, sexual and physical abuse, parental domestic violence and removal from his mother". The sentencing judge found that the co-offender's time in custody would be more onerous due to his mental health conditions (unspecified trauma and stress or related disorder and substance abuse disorder). His Honour found that Mr Edwards' moral culpability was ameliorated in accordance with Bugmy and DPP (Cth) v De La Rosa. His Honour further found that due to Mr Edwards' young age (18 years and 8 months at the date of the offence) and his immaturity, his moral culpability was reduced. Mr Edwards was on two forms of conditional liberty (bail and probation) at the time of the offences, which was found to be an aggravating factor, although the index offences were of a different character to the offences for which he was subject to conditional liberty. The sentencing judge noted that Mr Edwards had a "significant criminal history" in the Children's Court, commencing in 2015, and found that this would disentitle him to any leniency and counterbalance the mitigating effects of his youth and immaturity.
Both offenders received a discount of 25 percent for their pleas of guilty and were found to be genuinely remorseful. Both offenders were found to have "guardedly good prospects of rehabilitation". His Honour took into account the risk of institutionalisation in relation to each offender. A finding of special circumstances was made in relation to each offender due to their need for rehabilitation.
His Honour had regard to the principle of parity and noted the differences in the Form 1 and s 166 offences. In relation to the offenders' roles, his Honour noted that while both co-offenders acted together, it was Mr Edwards who held the knife and threatened the child. It was further noted that the applicant was older than Mr Edwards (by three and a half years) and had a more extensive criminal history (commencing in the Children's Court in 2012). His Honour noted that the applicant was not, however, on conditional liberty, as Mr Edwards was, and found that their subjective cases were otherwise quite similar.
His Honour concluded, based on objective and subjective factors, that the overall criminality of each offender was "broadly comparable" in relation to the two robbery in company offences, although his Honour noted that the applicant had additional Form 1 matters in relation to the robbery offence. His Honour observed that the additional Form 1 offences warranted an "appropriate incremental increase". His Honour was satisfied that the criminality in the two offences for which the applicant stood for sentence, given they occurred nine days apart, would not be appropriately reflected in imposing entirely concurrent sentences. His Honour indicated he proposed to make a "modest allowance for putative partial accumulation" between the sentences. His Honour then imposed the sentences as set out above.

Ground 1 - Manifest excess

Principles
Where an applicant appeals against a sentence on the basis it is manifestly excessive it remains a complaint based on error. The error is, however, not a specific error capable of identification, sometimes described as a "patent error". Rather, the contention is that the outcome is such that it can be inferred that some error must have occurred, sometimes described as "latent" error. A summary of the principles to be applied in a complaint of manifest excess was set out in Obeid v R (2017) 6 NSWLR 155; [2017] NSWCCA 221 at [443] as follows: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this Court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
While inherent in the ground is a concession that the sentencing judge did not err by failing to take into account particular matters (or by taking into account matters he should not have), inevitably an applicant will attempt to point to circumstances which establish the sentence imposed is outside the available range of sentences and consequently in error.
Consistently with the above, the applicant necessarily acknowledges all of the various matters relevant to a sentencing purpose were considered by the sentencing judge, and an appropriate discount applied for the utilitarian value of his plea. Indeed, at the outset it must be acknowledged the sentencing judge's reasons for imposing the sentence he did were impressively thorough. The applicant however points to what is said to be incongruity between the length of the sentence and, in particular, the lesser role played by the applicant, the evidence of his deprived background, and the impact of the applicant's mental health.
The respondent in submissions stressed the absence of any specific error on the part of the sentencing judge with its obvious corollary, that the various matters raised by the applicant were all taken into account. The Crown submitted that analysis of this case when compared with the Henry guideline suggests the sentence imposed was not in error. The respondent pointed to the following passage from the reasons of Payne JA with respect to the applicant's co-offender, in Edwards (at [2]): "The judgment of the sentencing judge here was, as counsel for the applicant accepted, thorough, principled and legally correct. The tragic personal history of the applicant was set out at length by the sentencing judge and taken into account in accordance with the decision of the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. The offending, however, was very serious. In particular, it involved the use of a knife and the threat of violence to a four-year-old child to demand money from his parents. Giving weight to the conflicting purposes of punishment is what made the exercise of the sentencing discretion in this case so difficult: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 476."
The Crown also pointed to the reasons of Bellew J (at [65], footnotes omitted): "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. 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. 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."
The force of these observations is self-evident. However, as the reasons of Button J in dissent demonstrate, the determination of whether a sentence is manifestly excessive, while a matter of law (or more properly mixed fact and law), is one that involves an evaluative exercise as to which reasonable minds might differ. Payne JA in the extract above explicitly acknowledged the difficulty in giving weight to the conflicting purposes of punishment in that case.
Importantly, in the present case, unlike in Edwards, the focus is not solely on the subjective case of the applicant. A significant aspect of the argument put on behalf of the applicant is that the objective gravity of the offending in his case, while undoubtedly serious, was not of the same quality as that in the case of Edwards. Implicit in the applicant's argument is that the conclusion of the majority of this Court in Edwards does not have direct application to this case due, in particular to the different objective seriousness of the offending. The applicant further pointed to factors such as the fact that Edwards was in breach of two forms of conditional liberty being bail and a probation order.
The Henry guideline
It is convenient to begin the analysis by reference to the Henry guideline. While the offence here is an offence of robbery in company rather than armed robbery, both offences are created by s 97(1) of the Crimes Act. Thus in R v Murchie this Court held the guideline to be applicable to robbery in company offences. It is of course necessary to keep in mind what it means to be "applicable". As pointed out in the respondent's written submissions, a guideline judgment provides a "check", "sounding board" or "guide": R v Whyte (2002) NSWLR 252; [2002] NSWCCA 343 at [113]); rather than a "tramline" : Legge v R [2007] NSWCCA 244 at [59]). In the present context, of course, the point is less about the guideline not eliminating the flexibility allowed to first instance judges but rather, more to do with whether the sentence imposed was outside what such flexibility allows.
The guideline in R v Henry states (at [161]-[165]) that for an armed robbery offence with the following characteristics, the sentence should generally be between four and five years for the full term: 1. young offender with little or no criminal history; 2. weapon like a knife, capable of killing or inflicting serious injury; 3. limited degree of planning; 4. limited, if any, actual violence but a real threat thereof; 5. victim in a vulnerable position such as a shopkeeper or taxi driver; 6. small amount taken; 7. plea of guilty, the significance of which is limited by a strong Crown case.
The reference in Henry, to a plea of guilty, was subsequently clarified as a late plea: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [161]). If the Henry guideline is assumed to involve a 10 percent discount, the notional starting point would be in the range of 4 years, 5 months to 5 years, 6 months. There was, at the time these cases were decided, no arithmetical precision involved in the assumption of a late plea: see Sullivan v R [2016] NSWCCA 172 at [15]-[19]. The insertion of Div 1A into Part 3 of the Crimes (Sentencing Procedure) Act has introduced arithmetic prescription based on the timing of the plea. A plea more than 14 days after the date set for trial will, other than in a narrow class of case, result in a discount of 5 percent. This would reflect a range for the starting point of 4 years 2 and a half months to 5 years and 3 months.
Noting the limitations inherent in the exercise it is nonetheless useful to compare the present case to the guideline, as indeed the sentencing judge did. The starting point for the indicative sentence in the present matter was 5 years and 8 months. This was, at least at the upper end (if not above) the range referred to in Henry.
There were aspects of the objective features of the offending that were properly acknowledged by the sentencing judge as militating towards an offence of greater seriousness than that envisaged in Henry. The offending involved the use of a knife. While this was a feature of the guideline, the guideline contemplated an offence of armed robbery, while here it was a feature in addition to the element of being in company. Alternatively, viewed from the perspective of the guideline rather than the charge, the present offence was more serious by virtue of the fact it was committed in company.
The offence was committed in the presence of a young child and included threats of harm to the child. It should also be noted that the physical threat of the knife was directed to Mr He while the child remained out of the physical reach of Mr Edwards. While the threats were not made directly to the child (and it is not clear what the child was able to observe or make of the events), the presence of the child no doubt added to the vulnerability and fear felt by the victim of the offence Mr He, but also that of the child's mother Ms Luo. Mr Tom was on the same side of the counter as the offenders and while not directly threatened, his egress was blocked by the applicant. He, in addition to Mr He and Ms Luo must have felt some fear (despite his remarkably sanguine response shown on the CCTV footage on the departure of the offenders).
Role
Some care must be taken when evaluating the seriousness of "an offence" in the context of an offence committed by an offender jointly with other offenders. It is (as the sentencing judge appreciated) the objective gravity of this offender's offence not of the joint offence. Of course, that does not excuse the applicant from responsibility for matters such as his co-offender's use of a knife, or the threats to the child. And while it was the case that it was the co-offender who was primarily responsible for performing the physical elements of the offence (with exception of being in company, and noting the applicant contributed to the threat by words and actions), it does not automatically follow that the applicant was less culpable. However, in the circumstances of this case the applicant was found to have a lesser role. There was no challenge by the respondent to this finding, although the respondent did submit that a finding the offenders were equally culpable would have been open (essentially to suggest any differentiation was not significant).
In R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49, Spigelman CJ with whom other members of a five judge bench of this Court agreed as to the relevant principle said (at [161]): "It may be the case that the particular role of a person engaged in a joint criminal enterprise does not always need to be identified with "precision", because of the responsibility each participant in such a joint enterprise must bear for the acts of any other participant in carrying out that enterprise. Nevertheless, it is always relevant to refer to the particular conduct of each such participant with a view to identifying the level of culpability for which each must be sentenced. (See, eg, Lowe v The Queen (1984) 154 CLR 606 at 609; R v Howard (1992) 29 NSWLR 242 at 254-259; R v Spathis [2001] NSWCCA 476 at [193]-[197]. See generally A Dyer and H Donnelly, "Sentencing in Complicity Cases - Part 1: Joint Criminal Enterprise", Sentencing Trends and Issues, No 38, Judicial Commission of New South Wales, June 2009.) I do not understand the brief observations in Hoschke to qualify this well established principle."
The Chief Justice (at [163]) went on to set out the following passage from R v Wright [2009] NSWCCA 3: "[28] If this conduct by other persons was done in the carrying out of a joint criminal enterprise to which the respondent was a party, then the respondent was to be sentenced for that conduct under the principle that a party to a joint criminal enterprise is to be sentenced for the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise R v Cotter & Ors [2003] NSWCCA 273 especially per Carruthers AJ at 90. [29] However, the respondent was not necessarily to receive the same punishment as would have been appropriate if he had himself personally performed all of those acts. In each case it depends on the circumstances whether a person who is criminally liable for an act as a principal in the second degree or as an accessory should be regarded as equally culpable, less culpable or even more culpable than the person who actually performed the criminal act. See the discussion by the High Court in GAS v The Queen (2004) 217 CLR 198 especially at 209 (23). [30] A case to which the Court was referred on the present appeal was R v Mitchell, R v Gallagher [2007] NSWCCA 296. In Mitchell and Gallagher the two respondents to the Crown appeal against sentence had jointly attacked the victim, punching, kicking and stomping on him. It was found that Mitchell was the primary offender in the attacking of the victim, although Gallagher had also punched the victim to the head and kicked him as he lay on the ground. The Court of Criminal Appeal accepted that Gallagher's objective criminality was less than Mitchell's, even if not to a very substantial degree, and that, apart from differences in the subjective circumstances of the two offenders, Gallagher's lesser objective criminality should be reflected in a lesser sentence."
Of course, consistently with what I have said above, as cautioned by McClellan CJ at CL, Johnson and Howie JJ in JW (at [213]), while accepting the above principles "the sentencing judge should not lose sight of the fact that they were all participants in the crime".
Here the applicant by his plea necessarily accepted liability with respect to all the elements of the offence. In his report to Dr Chew, as noted above, he said Mr Edwards "hadn't informed him at all what was going on" and that he felt "set up" by him". The applicant's oral evidence adopted the correctness of the report generally. In cross-examination his account that there was no discussion or planning before re-entering the store was not challenged. While this is difficult to reconcile with the objective fact that the applicant and the co-offender had their hoods pulled up on their return to the store suggesting preconcert, having regard to the absence of challenge and the elements of the offence there is no basis to find the applicant was aware a knife would be produced. While this aspect of the matter was not explicitly addressed in the remarks on sentence, there was certainly no finding made that the applicant was aware of the potential use of the knife prior to its production.
The significance of the above is somewhat limited. The applicant joined in the offence and continued his participation after the production of the knife. But it also remains the case that he had no control over the manner in which it would be used by the co-offender or to the threats that would be issued with respect to the child.
Having regard to the above matters while there were aspects of the offence that made the joint offence more serious than that envisaged in the Henry guideline, their impact was somewhat muted in the applicant's case.

Record

The applicant was not an offender with "limited or no" criminal history. His record, particularly having regard to his age, was significant. I pause to note the record tendered was in the nature of a report that is usually seen in the context of bail, and included many entries that resulted in acquittal or warrants being issued (which has the effect that the charges are repeated when actually dealt with the result that the document is longer). While the sentencing judge was astute to recognise this, the sentencing task is sufficiently difficult without such avoidable distractions.
Analysis of the record shows that all of the applicant's previous offences were dealt with in the Childrens' Court or the Local Court. Most significantly, the prior offences were of quite a different nature to the present offence. With the exception of a receiving charge in 2012 (when the applicant was 15 and for which he was initially placed on probation), all of the applicant's past offences relate to breaches of apprehended domestic violence orders, assaults, including offences resulting in actual bodily harm, committed in a domestic context, and offences of damaging property which also appear to have occurred in the context of domestic violence offences. That context is not identified in order to trivialise in any way the seriousness of those offences. Had the applicant been before the court in relation to a further domestic violence offence, that record would have real significance, particularly with respect to the weight to be given to specific deterrence and community protection. Conversely, the fact that the present offence was the first offence of its nature had the result that the applicant's record did not speak in the same way to the need for specific deterrence and community protection.
In addition to the above, the applicant's record might be regarded as giving weight to what has been said with respect to the applicant's lesser role. With respect to this last observation, it might be noted the co-offender, Mr Edward's record included entries for aggravated robbery, being armed with intent to commit an indictable offence, aggravated assault with intent to rob, aggravated break, enter and commit serious indictable offence, aggravated break, enter and commit serious indictable offence in company and two offences of stealing from the person. In the context of the present offences that is a record of a very different quality to that of the applicant. While I am not here concerned with parity, it might also be noted that Mr Edward's offending was aggravated by the fact that he was in breach of conditional liberty in two separate respects, this being one of the three matters relied on as making Mr Edward's offending more serious than the typical case in the guideline judgment: Edwards at [60], [63]).
Having regard to the above, while the applicant was not a person with "little or no" criminal record, I would not regard his record as a matter of particular significance in distinguishing him from the typical Henry case.

The Form 1

The offence for which the applicant stood to be sentenced had attached to it on a Form 1, the robbery committed against Ms Luo which related to the $100 on the counter together with three relatively minor offences of possession of a prohibited drug. Those latter offences were, correctly in my view, regarded by the sentencing judge as having nominal impact and, for the purposes of the present analysis can be put to one side. The second offence of robbery in company requires closer scrutiny.
The offender was not to be sentenced for the additional robbery offence on the Form 1. Rather, as Spigelman CJ explained in 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; (at [42]), his admitted commission of the offence was to be taken into account when sentencing for the primary offence, by giving greater weight to personal deterrence and to retribution when determining the penalty for the primary offence. See also Abbas & Ors v R (2013) 31 A Crim R 413; [2013] NSWCCA 115.
The weight that matters on a Form 1 will contribute to personal deterrence and retribution will necessarily vary according to the case. Where the Form 1 offences are committed in the context of quite separate offending, that fact will likely suggest a need to give significantly increased weight to personal deterrence and retribution (although the weight ultimately to be given to these factors may be impacted by other evidence in the case). Here the offences were part of what was very much a single episode (particularly noting the entire event from re-entry to the store to departure, was about 30 seconds). The separate offences were the result of the fact that the stealing element of the offences, was committed against the possession of Mr He with respect to the primary offence but against Mrs Luo with respect to the Form 1 offence. Particularly from the perspective of the applicant, who did not perform the physical acts constituting the stealing, there was thus a degree of happenstance in the commission of separate offences. Had Mr He rather than Ms Luo been in possession of the money on the counter, the danger to which Ms Luo, and also Mr Tom were exposed, and the fear in which they were put, would have remained relevant, but there would have been only one offence.
It is convenient to recall precisely what Spigelman CJ said (at [42]) in relation to the relationship between offences on a Form 1 and personal deterrence: "… the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged"
When regard is had to the particular circumstances of this case, and, from the applicant's perspective, the absence of any real "course of conduct", it is difficult to see that any appreciable increase in the weight to be given personal deterrence was warranted.
The foundation for giving increased weight to retribution, is the "community's entitlement to extract retribution for serious offences" in circumstances where there are other, admitted, offences for which no punishment has been imposed: Attorney General's Application per Spigelman CJ also at [42]. In the present case, while there is no issue of punishment being imposed with respect to both robbery offences, the observations of the plurality in Pearce v The Queen (1998) 194 CLR 610; [1994] HCA 57 have some resonance. McHugh, Hayne and Callinan JJ said (at [40]: "To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."
Here, it might be thought that the presence of two offences is the result of the manner in which the criminal law punishes robbery as an offence against possession. Put another way, in circumstances where the public would not necessarily have understood that the two offences were separate and distinct crimes, the community's entitlement to extract greater retribution for the primary offence due to the commission of the second (unpunished) offence might be regarded as limited.
It follows from the above that, in assessing whether the sentence imposed was within the available range of sentences, I do not share the primary judge's view that "a not insubstantial increment is required" on the basis of the second robbery offence on the Form 1.

Conclusion with respect to the comparison with the typical Henry case

It follows from the above, that while there were factors which marked the present offending as more serious than the Henry guideline their impact, in the case of this applicant, was muted. Care must also be taken in approaching the guideline in the manner of a mechanical checklist. Each case is unique and the particular facts in a case will inform the overall feel, or intuitive judgment, of the relative seriousness of the offence. Here, for example the offence was of very limited duration and, while a knife was produced, the offenders were at all times separated by a counter from victim of the robbery (as was also the case for the Form 1 matter). Thus, by way of example, had either offender jumped over the counter, the offence would have had a distinctly more serious quality without this being reflected when comparing the offence to the typical offence in a superficial "checklist" fashion.

The subjective case

The resolution of the sentence to be imposed required a synthesis of all matters relevant to a sentencing purpose, including the subjective circumstances of the applicant. That does not of course warrant a court losing sight of the objective gravity of the offending, a matter made clear in Edwards.
While the applicant's background was necessarily different to that of Mr Edwards, there was no suggestion that there was any material distinction between them with respect to the deprivation suffered, both materially, but more importantly with respect to domestic stability, guidance, and an environment free from exposure to violence and abuse. The evidence compelled a finding, as made by the sentencing judge, that the applicant: "… 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."
In Bugmy, the plurality stated (at [40]): "The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way."
Their Honour's went on to discuss (at [44]) the conflicting purposes of punishment and stated: "An offender's childhood exposure to extreme and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."
In the present matter there was no issue that the applicant's background was one of profound deprivation: cf Nasrallah v R [2021] NSWCCA 207; Hoskins v R [2007] NSWCCA 169. Further, there was no suggestion in this case that the offence involved the type of careful planning which may impact the application of Bugmy principles for the reasons discussed in Taysavang v R; Lee v R [2017] NSWCCA 146 at [42]-[43]. While the applicant's actions may not have been the result of an instinctive reaction in the sense discussed in Bugmy (at [44]), the offence was clearly poorly planned, and, particularly given the applicant's role largely involved him joining in with the co-offender, his decision to participate appears to have involved little in the way of deliberation. Consistently with these observations the sentencing judge found that the principles referred to in Bugmy, Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 and R v Fernando (1992) 76 A Crim R 58 applied and "serve to ameliorate the moral culpability" of the applicant.
Related to the dislocation in his upbringing, the applicant suffered abuse with clinically significantly consequences leading to the sentencing judge accepting he suffered from Complex PTSD and Cluster B Personality Disorder complicated by Substance Abuse Disorder with transient psychotic episodes related to this diagnosis.
With respect to the applicant's mental health the sentencing judge found the principles in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and DPP(Cth) v De La Rosa applied to reduce his moral culpability. His Honour also found that any custodial sentence would be more onerous due to the applicant's mental health. While not explicitly referred to by the sentencing judge, application of the relevant principles also requires some reduction in the weight to be given to general deterrence.
Finally, with respect to the role played by addiction, it was accepted by the sentencing judge that circumstances in which the applicant came to abuse drugs was less in the nature of "personal choice" (see Henry, per Spigelman CJ at [198]) and more attributable to circumstances for which the applicant was not primarily responsible (see Henry per Wood CJ at CL at [273], noting Spigelman CJ's agreement at [212]; as well as that of Newman J at [278], Hulme J at [331] and Simpson J, as her Honour then was, at [348]. The sentencing judge found that the circumstances in which the applicant's drug addiction arose served "to further ameliorate the moral culpability of [the applicant]" with respect to his offending.
The above matters, the background of deprivation, mental health and the circumstances leading to addiction were interrelated both as to their source but also with respect to the manner in which they impacted the purposes of sentencing. That is, it is to be kept in mind that they are not separate matters to be regarded individually with a consequent iterative impact. Nonetheless each finding was significant, and together they warranted consideration of their impact on the sentence to be imposed.
Having made the above findings the sentencing judge found the applicant "nonetheless has significant moral culpability" for the offences. This finding was not the subject of challenge. It must however, be seen in the context in which it was made. Having found the applicant's moral culpability was reduced having regard to his background (including the circumstances of his addiction) and his mental health, his Honour's conclusion can only have meant, in my view, that the while the applicant's moral culpability was necessarily reduced, having regard to the objective circumstances of the offending, he still bore "significant moral culpability". Significant moral culpability in this context is a level of moral culpability that is less (and given the particular features, appreciably less) than would ordinarily be the case.
The amelioration of the applicant's moral culpability gives a different perspective to the relationship between the present offending and the Henry guideline.
That said, the factors leading to reduced moral culpability do not automatically translate to a reduced sentence. The purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act are varied and, as has been said many times, will commonly pull in different directions. As the High Court's decision in Bugmy makes clear, while a finding of reduced moral culpability may lead to a reduction in the weight to be given to general deterrence, that reduction may be counter-balanced by a corresponding need for community protection: Bugmy at [44], set out above. Additionally the need to "recognise the long standing obligation of the State to vindicate the dignity of each victim of violence" and to "express the community's disapproval" of the offending remained: Munda at [54] and see also Christopher Ross v R [2019] NSWCCA 314 at [44]; Dungay v R [2020] NSWCCA 209 at [142].
In the present matter there was no explicit finding of any increased need for weight to be given to community protection. In the absence of such a finding at first instance I would hesitate before making such a finding on appeal. The applicant's record, however, does not inspire confidence that the applicant will not re-offend in some way, and perhaps sooner rather than later. That said, as noted above the present offence is not of a type previously committed by the applicant. It is also the first time he has appeared in the higher courts and the sentence is substantially longer than any that he has previously received. Further, the sentencing judge noted the applicant's relatively young age, that he had developed some insight into the causes of his offending, and found the applicant has "some guardedly good prospects of rehabilitation". Given these matters, while community protection must be a consideration the circumstances here are not such as to warrant an increase in that consideration so as to cancel out, or greatly impact, the mitigatory effect of the applicant's reduced moral culpability.

Conclusion on ground 1

The robbery in company offence was undoubtedly serious. However, having full regard to that objective gravity, in circumstances where the offence lasted for a total of 30 seconds, the applicant was not the instigator, and had a lesser role in the actual commission of the offence, the indicative sentence of 4 years and 3 months (arrived at after a discount of 25 percent), when regard is had to the matters discussed above, including in particular the applicant's reduced moral culpability, in my view, is simply too long.
The appeal is of course against the aggregate sentence not the indicative sentence. That aggregate took into account the offence of carrying a cutting weapon for which the indicative sentence was 3 months (again after a 25 percent discount). That offence carried a maximum penalty of 6 months. The indicative sentence was, having regard to this maximum, high. For present purposes it is sufficient to note that the impact of the second offence on the aggregate sentence did nothing to ameliorate the severity of the indicative sentence for the robbery in company offence. It necessarily follows that, in my view, the aggregate sentence is manifestly excessive.
In coming to this view I should note that I have had regard, and paid full deference to, to the decision of this Court in Edwards. That decision has precedential value with respect to the principles it applies rather than the result. That is a function of the fact that the result is a product of the circumstances of the individual case. As noted above, there are features of the present case that differ from that in Edwards.

Ground 2 - Parity

Having regard to the conclusion I have reached on ground 1 it is not necessary to determine ground 2. It might, however, be noted that, at least in part, the basis for the conclusion reached on ground 1 is the role of the applicant in the offence in the light of the absence of any prior similar offending.

Resentence

On resentence the respondent relied on an affidavit of Adrienne Ey dated 15 November 2021. That affidavit reveals that since he was sentenced the applicant has incurred 13 misconduct infringements in custody. The majority of these matters relate to failures to comply with directions or correctional centre routine. There were also three offences of fighting or related activity and an offence of intimidation committed against a correctional centre teacher which was the result of the applicant swearing at (though not directly threatening) the teacher in the context of him blaming her for his work on a computer being lost.
The applicant relied on his own affidavit dated 19 November 2021. In it he indicated he has used drugs for many years but, after a wait of 11 months, has been placed on a buprenorphine program. He said that this has been effective in eliminating the desire to take drugs. He acknowledged his poor custodial record and said that he found gaol difficult. He said his background had resulted in a difficulty with authority and a lack of trust in the system. He sought to explain the circumstances of some of the charges. He said that he has been engaging in counselling with the prison chaplain twice a week and has been reflecting on his choices and his important connections to the outside community. As a result, he has investigated potential educational opportunities and options for employment. He said that while in gaol he has completed a TAFE numeracy and literacy course and is doing a social skills life course with the chaplain. He said he recently took up a position as a sweeper (although I note his evidence at sentence was he was working as a sweeper at that time). The applicant also deposed as to the difficulty that resulted from restrictions stemming from the prison's response to the COVID-19 pandemic which resulted in him being locked in his cell for about 3 weeks without opportunity for work or exercise.
The applicant's response to prison discipline does not engender confidence. His affidavit however provides at least some hope that the applicant may overcome his disadvantage. At the least, I take the approach, similar to the finding made at first instance, that given his still relatively young age (to be seen in the light of his immaturity), and his background, his response to imprisonment does not disentitle weight being given to rehabilitation. This view is fortified by the context that the applicant's response to imprisonment, while hardly commendable, might also be seen in context of a young man with a difficult background adjusting to a significantly longer sentence than any previously imposed.
Like the sentencing judge, I would find special circumstances for the purposes of s 44(2B) of the Crimes (Sentencing Procedure) Act. The applicant's particular circumstances and associated need for assistance with rehabilitation are clearly such that a longer period of supervision is desirable on his release.
In relation to the offence of carrying a cutting weapon on a certificate pursuant to s 166 of the Criminal Procedure Act, having particular regard to the maximum penalty of 6 months imprisonment, but for the utilitarian value of the plea of guilty I would have imposed a sentence of 3 months imprisonment. After application of the discount the sentence I would have imposed, with rounding, is 2 months.
In relation to the offence of robbery in company, and having regard to the offences on the Form 1, I would have imposed, prior to application of a discount for the utilitarian value of the plea of guilty, a sentence of 5 years imprisonment. Applying a discount of 25 percent results in a sentence of 45 months or 3 years and 9 months.
Having regard to the above indicative sentences and to the principle of totality, I propose an aggregate sentence of 3 years and 10 months, commencing on the applicant's date of arrest, 20 June 2019. This sentence will, in the ordinary course, expire on 19 April 2023
I propose a non-parole period of 2 years and 6 months. That non-parole period would have expired on 19 December 2021.
With respect to the extension of time, the Court has a power to extend the time in which to appeal: s10(1)(b) of the Criminal Appeal Act. The applicant relied on his own affidavit and that of his solicitor acting on the appeal. While the history is unfortunate, the delay is not attributable to the applicant. Having regard to the view I have formed as to the merits, an extension of time should be granted: see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, in particular at [32]-[33].
The orders I propose are therefore as follows: 1. The applicant be granted an extension of time in which to appeal. 2. Leave to appeal is granted. 3. The appeal is allowed. 4. The sentence imposed on the applicant in the District Court on 22 May 2020 is quashed. In lieu thereof the following aggregate sentence is imposed under s 53A of the Crimes (Sentencing Procedure Act) 1999 (NSW): 1. 3 years and 10 months imprisonment to date from 20 June 2019 and expire on 19 April 2023 with a non-parole period of 2 years and 6 months to expire on 19 December 2021. 2. Pursuant to s 53A(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the indicative sentences are: 1. Offence H260/8 (taking into account H260/3, H260/4, H260/6 and H260/6 on the Form 1): 3 years and 9 months with a non-parole period of 2 years and 5 months. 2. Offence H260/2 on the s166 certificate: 2 months.
It is noted that, as at the date of these orders, the applicant is eligible for release on parole, subject to consideration by the Parole Authority.

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