JC1 v R; GN v R

Court of Criminal Appeal (NSW)|2021-07-23|Before: Payne JA, Davies J, Ierace J

Solicitors: Legal Aid NSW (for the Applicant JC1) O'Brien Criminal and Civil Solicitors (for the Applicant GN) Solicitor for Public Prosecutions (Respondent) File Number(s): 2018/331846 & 2018/343820 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: Nil Date of Decision: 30 October 2019 (JC1) and 3 June 2020 (GN) Before: Delaney ADCJ File Number(s): 2018/331846 & 2018/343820

The offending

Each of the offenders, including JC2, was sentenced on the basis of the same statement of agreed facts. The offending took place in the early hours of 15 January 2018.
JC1 was born in August 2000, and was aged 17 years and four months at the time of the offending. JC2, who was JC1's cousin, was born in April 2001, and was aged 16 years and nine months at the time of the offending. GN was born in September 2001, and was aged 16 years and four months at the time of the offending. The offending comprised two robberies at two brothels. The first was a brothel known as "Eden" at Villawood and the second was known as "Angels on Lancaster" in Ingleburn.

The offences at Eden at Villawood

Eden was located in an industrial estate in Birmingham Avenue, Villawood. It was open 24 hours a day, seven days a week. The entrance was situated at the top of a staircase to the left of the front carpark area.
On the night of 14/15 January 2018 there were present at the brothel Mr Jun Liu who was the manager/receptionist; Mr Bin Xu who was a friend of Mr Liu and who lived at the brothel helping out from time to time; Ms Ciknooraini Abraham and Ms Hui Ma who were both sex workers at the brothel; Ms Qingjie Kong who was a masseuse at the brothel; and another unknown female.
About 1:44am on 15 January, Mr Xu was asleep on a lounge in a room near the front door to the brothel. JC2 approached the front door and rang the doorbell, causing Mr Xu to wake up. Mr Xu opened both the wooden door and metal security door providing entrance to the premises. He saw that the person who had rung the doorbell had covered his face. Mr Xu tried to close the door, but JC2 pushed him away from the door, and Mr Xu was knocked to the ground. JC2 then punched Mr Xu four or five times to his mouth and face.
GN and JC1 had followed JC2 up the stairs, and they rushed into the premises. GN was armed with a self-loading paintball gun which was missing its gas cylinder and hopper magazine. However, it is a weapon that qualifies as a prohibited firearm under the Firearms Act 1996 (NSW) and is therefore a dangerous weapon under the Crimes Act.
JC2 dragged Mr Xu to the reception desk by his shirt, ripping it by doing so, and said, "Cash, cash, open the security box." JC2 saw a security box underneath the reception table and told Mr Xu to open it. Mr Xu said that he did not know how to open the box, and that only the boss could open it. He was yelling out for help at the time.
While Mr Xu was on the ground in front of the security box, he had his Samsung Galaxy Note 5 mobile phone in his hand. JC2 grabbed the mobile phone from Mr Xu's hand, scratching Mr Xu's hand in the process. This constituted sequence 1. Mr Xu continued to yell out for help, so JC2 covered Mr Xu's mouth with his hand for about a minute.
Meanwhile, Ms Abraham, who was in the workers' bedrooms overlooking the driveway, had heard Mr Xu screaming out for help. GN came into her room, pulled the paintball gun out of his jumper and pointed it at Ms Abraham. He said, "Don't move, give me all your money", to which Ms Abraham responded, "I don't have money. Money with boss."
GN went back into the reception area, and Mr Xu said he did not have any money. GN returned to the room where Ms Abraham was. He punched a table causing her bag to fall to the ground. Ms Abraham retrieved the bag, and GN demanded money again. She gave him $1000 out of the bag as well as two mobile phones. This constituted sequence 3.
GN left the room and went back to the reception area. Mr Xu said the money was with the boss in room 7. Mr Xu started to walk towards room 7 when GN pointed the paintball gun at him and made further demands for money. Mr Xu then went into the women's restrooms while GN held the gun to the back of his head. GN then went into the women's rooms where JC1 and JC2 were.
At some point, GN ran into Ms Kong's room and pointed the paintball gun at her. He yelled, "Money, money", and pointed to Ms Kong's backpack next to her bed. This constituted sequence 4. Ms Kong emptied the backpack onto her bed, and GN again said, "Money, money". Ms Kong said, "Money, boss", and collapsed onto the floor.
GN then walked into the room where Ms Ma was. He pointed the paintball gun at her and yelled, "Money, money, money". This constituted sequence 5. Ms Ma said, "No English, no money, boss". She pointed to where the boss would have been.
At some stage one of the co-offenders went to room 7 at the rear of the premises where Mr Liu was asleep. Before going to sleep, Mr Liu had put his money and watch on his bedside table and his mobile phone next to the pillow. When Mr Liu heard the commotion, including Mr Xu screaming for help, he hid in the gap between his bed and the bedroom wall. A few seconds later he heard a loud bang coming from his door, as if someone was kicking it. He could not see anything. The door opened and one of the co-offenders came into the room and took Mr Liu's black Huawei mobile phone before leaving the room. This constituted sequence 6.
All of the co-offenders left the premises by the front door. Mr Xu then telephoned the police, who arrived a short time later. As a result of being assaulted, Mr Xu suffered a cut to the inside of his lip, and cuts and scratches to his face, right hand and arm.
At about 3:00am on 15 January, the three co-offenders attended the brothel "Angels on Lancaster" in Lancaster Street, Ingleburn. The business was owned by Ms Younghui Li and Mr Terry McDonald.
Mr McDonald was lying down on a couch in the reception area. GN approached the front door with the paintball gun secreted down the back of his pants. JC1 and JC2 waited around the corner, out of sight of the CCTV cameras.
GN rang the buzzer, and Mr McDonald opened the door. When the door was opened, GN removed the paintball gun from his pants and pointed it in Mr McDonald's face. GN then followed Mr McDonald to reception, and JC1 and JC2 followed GN inside to assist.
GN struck Mr McDonald in the ribs with the paintball gun, after which he said, "Aussie dog, get on the ground". Mr McDonald did not want to get onto the ground for fear of being kicked in the head, but he fell to the ground. One of the other co-offenders then dragged Mr McDonald around and kicked him in the back. While this was occurring, the co-offenders were demanding money saying, "Where's the safe?" Mr McDonald said that there was no safe, after which one of the co-offenders demanded money from him and threatened to kill him.
Fearing for his safety, Mr McDonald handed over $400 cash which he had in his pocket in a bulldog clip. This constituted sequence 2.
In the meantime, GN had given the paintball gun to JC2. Mr McDonald got up off the ground and sat on the lounge. JC2 stayed with Mr McDonald, telling him to get on the floor, acting as if he was going to punch him. JC2 saw Mr McDonald's iPhone 6 mobile phone charging on a side table beside the lounge. He grabbed the phone and saw that Mr McDonald was wearing a Rolex Yacht Master watch. JC2 demanded the watch, which Mr McDonald gave to him, and JC2 put it in his pocket. During this time, JC2 hit Mr McDonald in the back of the head with the paintball gun and later smashed the TV with it.
While JC2 was with Mr McDonald, the other co-offenders went into the "girls' area" and rummaged through lockers and filing cabinets, taking two iPhone 6 mobile phones. One of the co-offenders saw that the backdoor was open, and they all ran out through that door. Mr McDonald then rang the police, who arrived at the scene but could not locate the offenders.
The police then used a variety of means, including monitoring telecommunications, to identify that the three offenders were involved in the robberies.
On 24 October 2018, police attended at the premises where JC1 resided with his parents. Police showed JC1 CCTV stills from the robberies. Arrangements were made with JC1's father for JC1 to meet the police at Liverpool police station.
On 29 October 2018, JC1 attended Liverpool police station and was charged in relation to the armed robberies. He participated in an ERISP during which he made extensive admissions about being involved in the robberies at both of the brothels. He also named GN and JC2 as the two other persons involved in the robberies.
On 8 November 2018 GN was arrested and taken to Liverpool police station. On 22 November 2018 JC2 was arrested and charged in relation to the robberies.

Ground 1: Failing to take into account the totality principle

Submissions

The applicant submitted that this ground concerned an earlier sentence imposed on him by the Children's Court for offences he committed in February 2018, approximately six weeks after the offences the subject of the appeal.
The applicant submitted that although the issue was raised by his counsel at the sentence proceedings, the sentencing judge did not say anything about the matter in his Remarks on Sentence (ROS), nor can it be inferred from the sentence imposed that the other sentence was taken into account. The applicant submitted that, given the earlier sentence related to offences which were part of the same episode of criminality and some were of a similar character, it was an error for his Honour not to take that sentence into account and apply the totality principle.
The applicant submitted that how any error in relation to ground 1 was dealt with might well be connected to the parity issue raised by ground 2.
The Crown submitted that the issue was raised before the sentencing judge. The Crown had contended in written submissions that the sentence should be backdated to include the 50 days served referable to the present offences, but did not address orally on the issue of the February 2018 offending, and the principle of totality. The Crown submitted that no direct submission was made by the applicant's counsel that, given any similarity between the subject offences and the February 2018 offences, a further degree of concurrency within the 24-month control order would be appropriate.
The Crown pointed out that when counsel for the applicant was asked by the sentencing judge to nominate the commencement date, 10 September 2019 was suggested and adopted. That was a date which only took into account the time spent in custody referable to the subject offences. The Crown submitted that thereafter the sentencing judge asked if there was anything else he had overlooked and not taken into account. Nothing was said about the February 2018 offending, nor the principle of totality.
The Crown submitted that whilst the sentencing judge made no express reference to the applicant's prior criminal history in his ROS, the relevant material was before the Court and had been the subject of oral submissions, including a direct reference to totality.
The Crown submitted that where the present sentence commenced during the parole period of the control order, there was nothing in the length of the sentence imposed by the sentencing judge that supported the fact that totality with the earlier sentence was overlooked. When the total criminality of the applicant for the subject offences and the February 2018 offences is considered, the sentences could not be described as crushing or contrary to the principle of totality.

Submissions

The applicant submitted that the cumulative impact of three factors supported the proposition that the degree of differentiation between the sentence imposed on the applicant on the one hand, and the sentence imposed on each of his co-offenders on the other, was erroneous, and that JC1 has a legitimate sense of grievance.
The applicant submitted that the first factor was that his role in the offending was substantially less than each of his co-offenders. The applicant submitted in that regard, that it was not clear from the statement of facts that he did anything in particular during the commission of the offences at Villawood. He was neither violent nor armed during those offences.
In relation to the offences at Ingleburn, the applicant submitted that it was not clear from the agreed facts which of the three offenders assaulted Mr McDonald, and that the facts disclosed only that the applicant and GN rummaged through lockers and filing cabinets in an area of the premises, taking two mobile phones.
The applicant submitted that the second factor was that, unlike either of his co-offenders, he made extensive admissions in a record of interview with the investigating police about his involvement in the offences, and he identified each of the co-offenders to the police by name. The applicant submitted that those admissions amounted arguably to assistance of the kind that falls within s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The applicant accepted, however, that no submission was made to the sentencing judge in relation to s 23.
The applicant submitted that the third factor related to the criminal antecedents of the co-offenders and the commencement dates for each of the co-offender's sentences. The applicant submitted that the extent of the concurrency with other sentences, brought about by the commencement date of the sentence for each of the offenders, linked grounds 1 and 2.
The applicant submitted that JC2's criminal antecedents were far more substantial than those of the applicant, and JC2 benefitted by way of three months' concurrency with a non-parole period served for another offence between 6 August 2018 and 5 February 2019.
In relation to GN, the applicant submitted that GN committed a further offence of recklessly causing grievous bodily harm on 23 December 2018 and received a control order for ten months commencing 25 December 2018 with a non-parole period of five months. The sentencing judge commenced GN's sentence on 7 January 2019 which, the applicant submitted, had the practical effect of subsuming GN's five month non-parole period for the offence of recklessly causing grievous bodily harm.
The applicant submitted that otherwise there was little to differentiate amongst the co-offenders.
The Crown submitted that the judge did differentiate the role played by JC1 in the robberies, but also found that without JC1's participation and the fact that he was actively assisting and supporting the other two, there may well have been a lesser reaction by the victims.
The Crown submitted, in relation to JC1's admissions and assistance, that all three co-offenders had been identified by the police prior to JC1's arrest, but his admissions were taken into account in his favour by the sentencing judge.
The Crown submitted that in relation to criminal history, GN did not have a criminal history prior to the offending. Whilst JC2 had some more serious matters on his record, and was on conditional liberty at the time of the offending, his history was not far more substantial than the applicant's.
The Crown submitted, in relation to the subjective cases, that GN and JC2 were both younger than JC1, and that there were differences between them in their subjective cases. GN had no prior convictions and was not on conditional liberty at the time of the offending. The sentencing judge found that his offending was related to a desire to provide his family with financial assistance, whereas the evidence in relation to JC1 was that he got involved for a quick financial gain. Further, general deterrence was found to be of less importance for GN due to his deprived background.
The Crown submitted that the sentencing judge also found that there were reasons why general deterrence might be of less relevance in sentencing JC2, because of his being exposed to violence and physical and sexual abuse during his childhood.

Consideration

For the reasons which follow, I consider that the submission made by counsel for the applicant concerning the link between grounds 1 and 2 should be accepted. It is necessary, therefore, to consider the grounds together.
In Warwick v R [2016] NSWCCA 183 Adamson J (with whom Payne JA and R A Hulme J agreed) discussed that aspect of the principle of totality which involves consideration of other sentences which have been imposed upon the offender that is being sentenced. Her Honour said: "[28] The principle of totality is, in my view, so fundamental that the failure to apply it will necessarily lead to error. A sentencing judge is required as a matter of law to consider the total criminality involved, not only in the offences for which the offender is being sentenced but also in any offences for which the offender has already been sentenced: Postiglione v The Queen (1997) 189 CLR 295 at 308 (McHugh J). As Giles JA said in Wu v R [2011] NSWCCA 102; 211 A Crim R 88: '[52] Application of totality principles is not a matter of leniency. . . [53] The cases have well recognised that totality principles are applicable where there is separate and later sentencing for one of a number of offences of similar character committed in the same episode of criminality, beyond where the delay was due to an interstate element or otherwise because of the operation of the criminal justice system.' [29] The importance of the sentencing task being undertaken in accordance with correct principle was emphasised by Gummow J in Pearce v The Queen (1998) 194 CLR 610 at [46] in the following passage: 'Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.' … [31] Where, as in the present case, a sentencing judge imposes a sentence on an offender who has already been sentenced by another judge, the second judge must not only regard the first sentence as an appropriate exercise of the first judge's discretion, but must also seek to determine what the overall sentence would have been had the offender been sentenced at the one time for all offences: R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [99] (Spigelman CJ, Whealy and Howie JJ). The difficulty of this task imposes an additional obligation on counsel to provide assistance as to how the principles of totality ought operate in the particular case. [32] The correct application of the principle of totality serves to remove from consideration arbitrary matters, such as whether the same judge sentenced the offender for all offences; or whether the offender was sentenced later for an offence committed earlier than one for which he has already been sentenced. The totality principle has the effect that, if all other things were equal, the total sentence imposed on the applicant for the August 2010 and the September 2010 offences would be the same irrespective of the time at which the offender was sentenced or the order in which he was sentenced for these offences."
The sentencing judge made two references to totality in his ROS. The first reference was when he was identifying the indicative sentences. His Honour said: "The requirement of totality in Pearce's case requires me to take the following course. It is necessary that there should be some accumulation. There are different victims at different places in different circumstances."
When his Honour convicted the applicant and again specified the indicative sentences, his Honour said: "Taking into account questions of totality and accumulation, there will be a head sentence of four years three months with a non-parole period of two years six months…"
In my opinion, those references to totality concerned only that aspect of the principle concerned with concurrency and accumulation of the offences for which sentence was being imposed. So much is clear from the fact that, in both cases, the sentencing judge related the principle of totality to the matter of accumulation (or notional accumulation) of the indicative sentences. Further, the only reference made by the sentencing judge to any aspect of the applicant's criminal record was where his Honour said: "I was informed by the Crown that the offences, being sequences 1, 2 and 3, were committed whilst he was on conditional liberty."
The issue of totality was raised by counsel for the applicant at the sentence proceedings. Counsel first raised the issue of the applicant's criminal record generally, and then drew specific attention to the sentence imposed on the applicant on 28 May 2018 for two counts of robbery armed with an offensive weapon, committed a little over one month after the date of the present offending. Counsel said: "STARES: … That aspect is also relevant because your Honour will obviously consider totality in his particular instance. He has served, of course, six months for those robbery offences that occurred about a month afterwards and what your Honour has here, he served a months [sic] and a half-- HIS HONOUR: So he served six months for the others, did he? STARES: Six months' non parole period for the others. He's still on parole."
The sentence imposed for those two armed robberies was a control order for 24 months commencing 5 March 2018 concluding on 4 March 2020 with a non-parole period of six months concluding 4 September 2018. It was after the applicant's release to parole on 4 September 2018 that he was arrested for the present offences on 29 October 2018.
It is significant to note that in Warwick, neither counsel referred the sentencing judge to the issue of totality. At the hearing of the appeal in that matter, the Crown contended that it was not open to the applicant to raise the matter because of what was said by Johnson J in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [75]-[83]. In response to that submission, Adamson J said in Warwick: "[27] It is regrettable that the principle of totality was not raised before the sentencing judge. His Honour was entitled to expect, and receive, greater assistance than was provided. However, the principle of totality is not properly classified as a 'mitigating factor' (which was what Johnson J was addressing in Zreika) which needs to be brought forward on behalf of the applicant in a sentence hearing before a sentencing judge is required to take it into account."
In the same vein, the Crown submitted on the present appeal that counsel for the applicant had, effectively, two opportunities to draw the sentencing judge's attention again to the issue. After the sentencing judge had identified the indicative sentences and announced the aggregate sentence that he would impose, the following exchanges occurred: "HIS HONOUR: …I would ask you on which date the sentence should commence, please? STARES: 10 September 2019. HIS HONOUR: Do you agree, Ms Crown? PARTRIDGE: Yes, I do, your Honour. HIS HONOUR: Is there anything that I've overlooked and not taken into account, please. STARES: I don't think your Honour has actually said the maximum penalty. HIS HONOUR: 25 years, if I did not indicate that previously. I thought I did when I started off but, if I did not, I say it again. Each of the three sequences has a maximum penalty of 25 years. Anything further? Please, I am happy to be corrected if anything."
The submission that counsel should have answered the question about the date the sentence should commence by raising the issue of totality should be rejected. The question clearly related back to what the sentencing judge had said earlier in his ROS: "He has spent a short time in custody and ultimately I will be asking counsel to indicate a start date for the sentence."
The submission that counsel's failure to raise the issue of totality when the sentencing judge asked if there was anything he had overlooked, is answered by what Adamson J said in Warwick at [27]. In the present case, by comparison with Warwick, counsel for the applicant had made specific submissions in relation to the principle of totality as it concerned the earlier sentence. The sentencing judge in the present matter erred by failing to deal with this aspect of the principle.
The issue regarding totality is connected closely with the issue of parity because, in the case of both GN and JC2, there was an adjustment to the starting date of their sentences arising from time spent in custody for the offences committed by them after the present offending.
In the case of GN, he was sentenced on 30 August 2019 for an offence of reckless grievous bodily harm committed on 23 December 2018, after the present offending. He was sentenced to a control order of ten months commencing 25 December 2018 and concluding on 24 October 2019 with a non-parole period of five months concluding 24 May 2019.
GN had been arrested for the present offending on 8 November 2018, and remained in custody bail refused until he was sentenced on 3 June 2020. As indicated, the control order imposed on 30 August 2019 was commenced on 25 December 2018. His Honour commenced the sentence for the present offending on 7 January 2019. The effect of that starting date was that all but 13 days of the control order was subsumed in the sentence for the present offending.
In the case of JC2, he was sentenced on 22 February 2019 for a count of affray committed on 6 August 2018, almost seven months after the present offending. The control order was for a period of 15 months commencing on 6 August 2018 and concluding on 5 November 2019 with a non-parole period of six months concluding 5 February 2019. He was actually released on 22 February 2019.
After the conclusion of his time spent in custody under the control order, JC2 was on bail for the present offending. However, he voluntarily asked for his bail to be revoked on 27 November 2019 while the proceedings were part heard before the sentencing judge. Accordingly, at the time he was sentenced on 3 June 2020 he was in custody bail refused.
His Honour fixed a commencement date for JC2's sentence on 27 August 2019, saying: "Since committing the offences of 15 January, he has had a number of minor offences. He has been out in the community and although he has served some portion of a sentence earlier, it was agreed that taking into account the periods of time that he has been in custody, especially now from 27 November, the start date of his sentence ought to be a date which takes account of all his previous periods of incarceration which means 27 August appears to be the correct date."
It may be observed, therefore, that both in case of GN and JC2, the sentencing judge took into account not only time spent in custody referable to the present offending but also time spent in custody, in each case, on the control orders that had been imposed in 2018. The sentencing judge did not do that in respect of JC1 although, in the same way as the co-offenders, he had spent six months in custody on a control order imposed in 2018.
However, but for this significant anomaly in the sentencing judge's approach to the starting dates of the sentences, his Honour properly took into account the similarities and differences between the offenders, including their respective roles in the offending, their background, their age, and their prior criminal records or lack thereof.
It may be accepted that JC1's role in the offending was not as culpable as his two co-offenders. He was, however, the eldest of the three offenders, and nothing in his background and upbringing provided any excuse or even explanation for his offending. His motive for participating was not, for example, a need to feed a drug habit, but for "quick, easy money", as he told the author of the Sentencing Assessment Report. He was on two bonds at the time of the offending, imposed only six days previously, for an offence of violence and for possession of a prohibited weapon.
I do not consider that there is any significance in the fact that the sentencing judge sentenced JC1 on 30 October 2019 but sentenced GN and JC2 on 3 June 2020. The sentencing judge made clear in his ROS for each offender that he was conscious of the issue of parity. In each set of remarks he identified the relevant matters, except for the issue of the starting dates for the sentences. The difference in the sentence imposed on JC1 from the sentences imposed on GN and JC2 was well within the sentencing judge's discretion. However, JC1 has a justifiable sense of grievance as a result of the actual sentence imposed by reason of its starting date.
In my opinion, ground 1 is made out, with the result that ground 2 is also made out. In the circumstances, it is necessary for this Court to resentence the applicant.

Resentence

The applicant did not give evidence at the sentence proceedings. Evidence was given by the Assistant Manager of Campbelltown Juvenile Justice, directed to the issue of whether the applicant should serve time in custody in a juvenile institution or an adult prison.
His Honour also had a report from a clinical psychologist, Nicholas Lavidis, who examined the applicant in about October 2019. He diagnosed the applicant as suffering from a Major Depressive Disorder. Mr Lavidis said that the disorder impaired the applicant's thinking and limited his ability to reason out his actions at the time of the offending. The report did not identify the basis for any conclusion that the applicant suffered from the Major Depressive Disorder at the time of the offending. Nevertheless, I accept the sentencing judge's finding flowing from that report, a report from Salvation Army Youth Link, as well as the Sentencing Assessment Report, which assessed him at a medium to low risk of reoffending.
I accept the sentencing judge's findings that the applicant is remorseful, and that he has taken steps towards rehabilitation, although there is some way to go in that regard. I accept that he is at a medium to low risk of reoffending.
The only evidence about the applicant's background is found in the report of Mr Lavidis. That report suggests a family life and upbringing with no unusual features. His parents were supportive of him. He appears to have fallen in with the wrong group at high school, and left school in year 11 at about which time his offending began. He commenced using cannabis at the age of 16, and that use escalated in 2017. He claimed to use it to assist his insomnia and irritation.
His offending commenced in April 2017 when he was aged 16 years.
As noted, he was placed on two s 33 bonds on 9 January 2018, only six days before the present offending.
Whilst on those bonds he committed the two armed robberies to which reference has been made, and in respect of which he received a control order. That control order was also imposed for offences which included larceny, dishonestly obtaining property by deception (nine counts), being carried in a conveyance without the consent of the owner and disposing of property where the stealing amounted to a serious indictable offence.
An affidavit was read from the applicant on re-sentence. The affidavit discloses that when the applicant was at Geoffrey Pierce Correctional Centre he was a sweeper. Since moving to Bathurst Correctional Centre he has been working in the kitchen.
The applicant says that he is in the process of doing a forklift course and, when he is released, he hopes to work with one of his uncles, one of whom owns a construction business and the other of whom owns a handyman business. He says that he has been doing an intensive drug and alcohol treatment program. He has also been doing a numeracy and literacy course. He acknowledges two charges in custody, one for fighting and one for entering an inmate's cell without permission.
On my own independent assessment of the appropriate sentence for the applicant, I would not differ from the sentencing judge's assessment of an aggregate sentence of four years and three months' imprisonment with a non-parole period of two years and six months. I would also not differ from the indicative sentences, indicated by the sentencing judge.
In my opinion, having regard to the sentence imposed on 28 May 2018, the sentence should commence on 10 June 2019 and expire on 9 September 2023, with a non-parole period expiring 9 December 2021.

Ground 1: The sentencing judge impermissibly used the Henry guideline judgment

Submissions

The applicant pointed to two passages in the ROS in relation to himself and in the ROS relating to JC2. In the ROS concerning GN, the sentencing judge said this: "In my opinion, the factors that were referred to in Henry and the facts and circumstances of this case, particularly in relation to the event of the robbery on Mr Xu, was greater than the Henry guideline and that the starting point for any sentence should be greater than that, I am satisfied that this was because of the violence and the terror involved, a number of people who were involved, an offence which was midrange of objective criminality."
In the ROS in respect of JC2, the sentencing judge noted a submission made by counsel for JC2 concerning the objective criminality of the offences and went on to say: "He also submitted that the R v Henry (1999) 46 NSWLR guideline judgment can be used as a starting point when sentencing a child and I have done so. In my opinion, what will follow is nevertheless a significant moderation in what could well have been imposed on some persons who are older."
The applicant submitted that these passages show that the sentencing judge engaged in a two-stage sentencing process, with the guideline from R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 being used as the first stage and the sentence being moderated from the guideline sentence by the other matters considered by the Judge. Reliance was particularly placed on what had been said by Rothman J in Yildiz v R [2020] NSWCCA 69 at [56] as follows: "[56] The Guideline Judgment is not to be treated as a prescription for the sentence to be imposed, nor as a starting point from which will be deducted items that are relevantly ameliorative or to which will be added factors which are relevantly aggravating. The sentencing process is intuitive and each of the guideposts must be a factor in seeking to achieve the purposes of sentencing adumbrated by s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW)." It was submitted that those remarks accorded with what was said by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [53]-[54].
The applicant submitted that his Honour first assessed the range of objective criminality for sequences 1 and 2 to be at and just below the mid-range respectively, arrived at a starting point above that of the guideline because the violence was more severe than in Henry, and then moderated the sentence below the starting point to give effect to the deprivation finding. The applicant submitted that this was consistent with the indicative sentences before the application of the 25% discount, being four years and four months, and four years respectively. With respect to sequence 3, assessed to fall below the mid-range, the sentencing judge arrived at a pre-discount indicative sentence of two years and eight months, which fell below the guideline range.
The Crown submitted that, apart from the one comment by the sentencing judge in which he related the finding of objective criminality to the Henry guideline for sequence 1, the remainder of the reasons show that the sentencing judge considered the objective seriousness of the offending, the subjective material and the relevant purposes of sentencing a juvenile offender when determining the ultimate sentence.
The Crown submitted that the starting point of four years and four months for the indicative sentence for sequence 1 falls below the range of the Henry guideline when undiscounted, and not towards the middle of the four to five year range. That factor does not support the sentencing judge initially starting above the Henry guideline range and making significant deductions thereafter in a two-step process.
The Crown submitted that when the ROS are considered as a whole, the Court would not be satisfied that the sentencing judge impermissibly used the Henry guideline judgment.

Consideration

In my opinion, too much is being read into the use of the words "starting point" by the sentencing judge. The ROS as a whole do not provide any basis for the view that the sentencing judge added to or deducted from a nominal starting point derived from the Henry guideline. It may be accepted that a two-stage process in sentencing is inappropriate and will demonstrate error. However, the criticism identified by Rothman J in Yildiz was not adopted by Simpson AJA or N Adams J, the other two members of the Court, in that case.
Further, the approach that the sentencing judge took to sequences 2 and 3, where no reference is made to the Henry guideline, tends against the view that the sentencing judge engaged in a two-stage process in his ROS concerning sequence 1. My reading of the sentencing judge's remarks is that the reference to the starting point was not for the sentence itself, but for the analysis of how the present matter related to Henry, in terms of the features identified by Spigelman CJ at [170] of Henry.
Both at the sentencing of GN and JC2, the sentencing judge was responding to submissions that had been made by counsel for each of those offenders with regard to the Henry guideline. At the sentence proceedings on 27 November 2019, counsel for GN made this submission: Sequence 1: The Crown submits he's at, or just below, the Henry guideline. Sequence 3 the Crown submits he's at the midrange of the Henry guideline; and sequence 2 the Crown submits he's at, or slightly above, the Henry guideline. Your Honour, I'm just going to focus on two aspects of the guideline, for present purposes, where I say the Crown did get it wrong; and the primary one of those, your Honour, is the nature of the weapon itself."
Counsel then drew his Honour's attention to a number of cases, including that of R v SL; R v RT; R v WS [2008] NSWSC 651 where Fullerton J had discussed the weapon being used in an armed robbery. Counsel said: … so your Honour, all other things being equal, in terms of the factors in the guideline - I won't need to go through them now - in my respectful submission, it is the nature of the weapon and the youthfulness of this young person being 16 years and four months at the day of the offence, that brings all three offences below the Henry guideline. It's the nature of the weapon itself that brings the offences below the midrange of objective seriousness because there simply never was any lethal capacity.
When the sentencing judge's remarks are read as a whole, and taking into account that they were delivered ex tempore shortly after the conclusion of the sentence hearing, I do not consider that a two-stage process has been engaged in. His Honour appropriately took into account the Henry guideline judgment, and did not take as a starting point the range outlined in Henry to produce the indicative sentence for the sequence 1 offence.
I would reject this ground.

Ground 2: Failure properly to consider the applicant's youth

The applicant submitted that his Honour did not engage with or determine the relevance of the applicant's youth and his level of maturity to the commission of the offending; nor did his Honour engage with or determine how those matters impacted his moral culpability and the weight to be attributed to general deterrence. The applicant submitted that these matters were subsumed by the deprivation factor.
The applicant submitted that his Honour ought to have concluded that the applicant's moral culpability was lessened, to some degree, by his age and maturity, given his age at the time of offending, the fact that his level of maturity was likely to be less than his chronological age owing to the adverse effects of his difficult childhood, and the uncontested opinion of Juvenile Justice and Dr Seidler that the applicant had matured and/or changed his outlook since his offending.
The applicant submitted that there ought to be have been a reduction of the weight given to general deterrence on that basis, as distinct from the reduction which resulted from the deprivation finding.
The applicant submitted that this Court would be very circumspect in reasoning that broad statements made by the sentencing judge at the outset of submissions on 3 June 2020, in the absence of express remarks revealing if and how the issue was ultimately considered, showed that the applicant's youth was appropriately considered in sentencing.
The Crown submitted that support for the applicant's youth being taken into account appropriately is demonstrated by the proceedings on sentence. On 27 November 2019 the applicant's counsel had made a submission that the psychological report supported that the applicant's lack of maturity played a significant role in the commission of the offences.
On 3 June 2020, prior to the sentence being imposed, the sentencing judge said that he wanted to make it clear that he would be taking into account the youth of the two offenders being sentenced on that day, referring to the decision in Clarke-Jeffries v R [2019] NSWCCA 56, and s 6 of the Children (Criminal Proceedings) Act 1987 (NSW).
The Crown submitted that the sentencing judge delivered reasons which included matters concerned with the applicant's youth, his deprived background and the opinion of the psychologist. The sentencing judge then asked counsel whether anything further needed to be dealt with and the applicant's counsel indicated that there was not.

Determination

In Clarke-Jeffries v R, Bellew J (Simpson AJA and Campbell J agreeing) said (footnote omitted): "[49] The principles which govern the sentencing of youthful offenders are well known. They include the following: (i) considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence; (ii) in recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation; (iii) the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law; (iv) allowance will be made for an offender's youth, and not just his or her biological age; and (v) where the immaturity of an offender is a significant factor in the commission of an offence, the criminality involved will be less than if the same offence was committed by an adult."
In his ROS, the sentencing judge said this in relation to GN's youth and its implications: "The psychologist referred to questions that had been asked by those who had engaged the psychologist. I will refer now to the answers that were given by the psychologist to those questions and I will do so in a summary form. The first was whether GN's background was deprived. The answer to that was, in real term, yes. An assessment was made of his maturity at the time of the offending. The account suggested he was a young person engaged in hedonistic self-focussed substance abusing and delinquent lifestyle. The psychologist considered that by the time of the report being made, he was matured and reflected on his behaviour and lifestyle choices. … The determination of sentencing for a person who was a young person at the time of the offence requires proper consideration of s 6 of the Children's (Criminal Proceedings) Act but more importantly also, the consideration of s 3A of the Crimes (Sentencing Procedure) Act. Whilst it is necessary that there be proper punishment, it is also necessary that the effect on the victim and victims be properly recognised. … S[ection] 3A requires the Court to consider questions of general and specific deterrence in real terms because they involve the purposes of sentencing. The rehabilitation of the offender is also a factor in that section and looms large when dealing with young persons. I have taken those matters into account and I have decided that whilst because of the serious nature of these matters, general deterrence has to be taken into account, it is of less consequence for GN than in other cases because of his background."
Further, during the sentence proceedings on the day his Honour sentenced both GN and JC2, his Honour said this: "There are at least two things that I had in mind, having had some discussion about, but I will wait to hear whether or not either of you have the same thing in mind. The two things that I - I won't wait, I'll tell you. The first thing I have in mind is the question of parity, and the second thing that I have in mind is the question of accumulation, in particular. Just in case there was any doubt about what happened previously, I want to make it clear that in each of your two cases, you may assume that the things that I will be taking into account are, firstly, the youth of each of your clients at the time of the offences and now, having regard to the principles referred to by Bellew J in Clark-Jeffries. Secondly, I will have regard to s 6 of the Children's Criminal Proceedings Act. I will also have regard to the fact that there has to be a finding of special circumstances to reflect a difference between the head sentence and any non-parole period based on the fact that I in the previous case that I dealt with of JC1 I ordered an aggregate sentence. So they're the things that I particularly had in mind. In addition, you may assume that from the material that I read in each of your client's cases, although there are some differences, there would be a finding that each of them, for various reasons, which you can discuss with me when you wish to, have had some depravation [sic] of upbringing which has to be accorded appropriate consideration. So they're the things that came to my mind, in particular, again after re reading the files and materials yesterday."
The sentencing judge made detailed reference to a letter GN had written to the Court the day before the sentence proceedings. The sentencing judge quoted from part of that letter where GN said: "I believe that I am a better man today and not the immature young person I was when I committed the crime." It was apparent that the sentencing judge accepted what GN said in that regard.
When the ROS are considered as a whole, it is clear that his Honour had regard to the fact that GN was a young man when the offences were committed, that he was, in any event, immature even on his own assessment of himself, that general deterrence was of less consequence (although his Honour linked that to GN's deprived background), that the principles set out in s 6 of the Children's (Criminal Proceedings) Act had to be taken into account, and that rehabilitation was an important consideration. It was apparent from both the psychological report and GN's own statement to the Court that his immaturity at the time of the offending could not be separated from his deprived upbringing and the violence he experienced as a child and young person.
That conclusion is strengthened by what the sentencing judge said during the hearing (set out at [113] above). In Mohindra v R [2020] NSWCCA 340 Basten JA set out at [37] circumstances in which exchanges between bench and bar during sentence hearings could be taken into account, where error was asserted in relation to sentencing remarks. In my opinion, the situation in the present matter is an aspect of those circumstances, and is analogous to the application of Mohindra in JA v R [2021] NSWCCA 10 at [42].
What the sentencing judge said was not a casual remark in response to a submission, but an obviously considered assessment of relevant matters for the purposes of sentencing. Where those remarks were made only an hour before the sentencing took place on the same day, and taking account again the fact that the sentencing remarks were delivered ex tempore, it is not reasonable to infer that the sentencing judge did not appropriately take account of GN's youth.
In my opinion, the sentencing judge gave appropriate consideration to the particular matters involved in the sentencing of a young person as identified in Clarke-Jeffries. The sentence was not a harsh one given the offending and GN's role in it, and does not stand out as suggesting that undue weight was given to matters that might be of more significance to an adult such as punishment, and specific and general deterrence.
I would reject this ground.

(a) In relation to the appeal by JC1:

Leave to appeal granted.
Uphold the appeal.
Quash the sentence imposed by Delaney ADCJ on 30 October 2019.
In lieu, sentence the appellant to an aggregate sentence of four years and three months commencing 10 June 2019 and expiring 9 September 2023 with a non-parole period of two years and six months expiring 9 December 2021.

(b) In relation to the appeal by GN:

Leave to appeal granted.
Appeal dismissed.
IERACE J: I also agree with Davies J.

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 August 2021

Crimes Act 1900(NSW)ss 97, 117

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