JM v R

Catchwords

198 CLR 111 Blackwell v R [2011] NSWCCA 93 GDP (1991) 53 A Crim R 112 Postiglione v The Queen [1997] HCA 26189 CLR 295 R v Bellavia, (unreported, 16 August 1980) R v Broad (unreported, 30 March 1984) R v Hearne [2001] NSWCCA 37124 A Crim R 451 R v Ly (1991) 55 A Crim R 128 R v Mastronardi [2000] NSWCCA 12111 A Crim R 306 R v Pham (1991) 55 A Crim R 128 R v Sharma [2002] NSWCCA 14254 NSWLR 300 R v Smith [1964] Crim LR 70 R v ThomsonR v Houlton [2000] NSWCCA 30949 NSWLR 383 R v Way [2004] NSWCCA 131

Judgment (4 paragraphs)

[1]

The applicant's personal circumstances 49Evidence of the applicant's personal circumstances was put before her Honour by way of a report by the Office of Juvenile Justice and a neuro-psychological report, as well as oral evidence from the applicant, his grandmother, and the assistant manager of Juvenile Justice Community Services office in Wagga Wagga. 50The applicant was born in February 1991 and was 17 years and 4 months as at the date of the offence. He had no criminal history. He was born in Sydney, but the family moved to Wagga Wagga when he was young. He has no knowledge of his father and was raised by his mother. By 2010, his mother was living with her three other children in Tumut. At that time the applicant was living with his grandmother in a suburb of Wagga Wagga, in order to attend a particular high school. At school he was a competent, even talented, sportsman, but was not so competent or enthusiastic academically. He also participated in a variety of programmes aimed at assisting in the transition from school to work, and in various vocational programmes. His grandmother described him as "pleasant and co-operative" in the house. 51His grandmother is confined to a wheelchair, having had a leg amputated due to diabetes. The applicant was called upon to give her a considerable degree of assistance, which he did willingly. Also living in the house was an uncle, who suffers from paranoid schizophrenia. 52The two officers of the Office of Juvenile Justice who signed the report stated that the applicant had acknowledged that on the night of the offence he was intoxicated and had consumed ecstasy. In his evidence the applicant denied the assertion concerning ecstasy. However, he said that in compliance with his bail conditions he had not consumed alcohol or drugs since his arrest. 53The officers appear to have taken a favourable view of the applicant. They suggested that he would benefit from alcohol and other drugs programmes, in order to broaden his understanding of the negative effects of alcohol and illicit drug use and provide him with strategies to limit "negative" actions in the future. They said that he had demonstrated a willingness to "skill himself" to improve his chances of worthwhile employment in the construction industry, and that he had demonstrated a positive work ethic. They accepted that he was "indeed very remorseful for his actions" and had taken steps towards his own rehabilitation. 54The neuro-psychological report opened by referring to: "... a cluster of psychiatric symptoms, history, and cognitive impairment and weaknesses which can be described as an attention deficit disorder (ADD) and a prior clinically significant altered mental state known as severe alcohol intoxication ... ." There is no evidence that the applicant had previously been diagnosed as suffering from Attention Deficit Disorder. 55The author of the report, Dr Rowe, expressed the view that, at the time of the offence, the applicant was: "... affected by a severe alcohol intoxication together with a cognitive impairment associated with ADD, leading to increased impulsivity, impaired judgment and attention, and reduced emotional stability". He repeated this, sometimes in different words, on a number of occasions throughout the report. He also said: "Given that [the applicant's] character appears to be of a relatively naïve nature, lower intellectual ability and an openness to suggestibility, the potential incarceration of [the applicant] might lead to a more negative outcome rather than a good behaviour bond which forces him to participate in treatment and rehabilitation." 56Dr Rowe recorded that the applicant told him that on the night of the offences, he had probably drunk 11 or 12 full strength beers, and that the perceived racial slur made him "very wild". He considered that had the applicant not been affected by such a high level of alcohol intoxication, or had not suffered from ADD, it was likely that he would not have committed the offence. 57He found the applicant to be within the low average range of verbal intellectual ability. 58In his evidence the applicant again expressed remorse and regret for his conduct. He said that the "racial slur" had: " ... made me upset and a bit wild". He said that he had been undertaking a TAFE course in horticulture and was enrolled with an employment agency. He said that, as a result of the offences, he had been expelled from an AFL football team with whom he played. 59In cross-examination he said that he had been aggressive on the night of the offence because he had been drinking and was "a bit wild as well". He said that he had not consumed any alcohol or drugs since the offence. 60The applicant's grandmother confirmed that she depended significantly upon the applicant. She was unable to count on assistance from her son because of his psychiatric condition.

The grounds of the application. 78Initially, two grounds of the application were pleaded. These were: "1.The applicant suffers a justifiable sense of grievance when comparing the sentence imposed upon him with the sentence imposed upon his co-offender, ZBN. 2.The sentence imposed was, in all the circumstances, manifestly excessive." 79At the hearing of the application, leave was granted to the applicant to add two additional grounds. These were: "Ground 3:The sentencing judge erred in failing to make an order pursuant to s 19(3) of the Children (Criminal Proceeding) Act that the applicant serve his non-parole period in juvenile detention. Ground 4.The sentencing judge erred did not properly assess [sic], in accordance with accepted principle, the extent to which the applicant's immaturity was a factor in the commission of the offence." Ground 1: Parity 80The written submission filed on behalf of the applicant contained a table identifying both distinctions and similarities between the cases of ZBN and the applicant. Similarities included: their ages: both were 17 at the time of the offence[s], ZBN 20 at sentencing, the applicant 19;

both were of prior good character;
both entered pleas of guilty on the day fixed for trial, although ZBN did so after some witnesses had given evidence (the materials in this Court do not directly disclose the extent to which the trial had progressed, or which of the witnesses had given evidence);
both were found to have excellent prospects of rehabilitation;
both had complied over a lengthy period with strict bail conditions. 81Distinctions between the two included:
the applicant pleaded guilty to two counts, one of which carries a maximum penalty of imprisonment for 25 years; ZBN pleaded guilty to a single count, carrying a maximum penalty of 14 years;
ZBN had suffered a certain amount of extra-curial punishment, and family hardship (his father having been a police officer);
the offence committed by ZBN was at the lower end of objective gravity (for a s 35 offence); the offence committed by the applicant was "just below the mid-range of objectively gravity" (for a s 33 offence). 82Not mentioned in the table, but of paramount significance, is the role played by each of the offenders. In this respect, her Honour made important findings concerning ZBN's participation; also important was the finding that he had attempted to dissuade the applicant from the path he was pursuing. Consideration 83The parity principle is not difficult to state. It can present significant practical dilemmas in its application. The principle was encapsulated in the judgment of Dawson and Gaudron JJ in Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301-2 as follows: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen [[1984] HCA 46; 154 CLR 606], recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." Their Honours went on to identify two circumstances of that case that called for a lesser sentence to be imposed one offender than the other. 84A number of the concepts included in that passage are here material. The first trio are "relevant differences", "different degrees of culpability", and "different circumstances". 85It is necessary to examine each of these in relation to the applicant and ZBN. (No parity ground of appeal is raised in respect of DFA.) 86The differences in the culpability of the two are significant. The agreed statement of facts shows that ZBN "shoulder-charged or tackled" MF-D, and kicked him at least once. It also showed that the applicant, taking advantage of MF-D's position on the ground as a result of the action taken by ZBN, hit his head into the bitumen and kicked him and punched him in the head and torso. The actions of the applicant were significantly more sustained and prolonged than those of ZBN. It is an inevitable conclusion that the most significant injuries caused to MF-D were caused by the actions of the applicant. 87Also relevant are differences in the charges to which the two pleaded guilty; the applicant pleaded guilty to a charge in which the mental element was intent to cause grievous bodily harm, and which therefore carried a maximum penalty of imprisonment for 25 years; ZBN to an offence in which the mental element was recklessness (meaning that he envisaged the possibility of grievous bodily harm, but did not intend to cause such harm - Blackwell v R [2011] NSWCCA 93, at [78]), carrying a maximum penalty of imprisonment for 14 years. Those differences must necessarily be reflected in the sentence imposed. 88In sentencing ZBN, English DCJ expressly considered the issue of parity, but found that "it does not arise". She noted the offences in respect of which the applicant had been sentenced and said: "As a result of the part he had to play in this attack on that night the victim suffered a very substantial ongoing brain injury. This offender [ZBN] did not take part in that attack upon the victim causing that injury. What this offender did was to facilitate that attack by shoulder-barging the victim causing him to fall to the ground, to then be set upon by [the applicant]." It may be that in this passage, her Honour overlooked (or was not reminded of) that part of the agreed facts (presented in relation to the applicant) in which it was asserted that ZBN had kicked MF-D at least once (although the statement does not identify to which part of the body of MF-D ZBN aimed his kick). 89Her Honour did note that ZBN expected "only a fist fight", and that he had earlier attempted to dissuade the applicant from pursuing MF-D. She found his moral culpability to be far less than that of his co-offenders. 90Counsel for the applicant placed considerable reliance on the fact that it was ZBN who took the initial action that rendered MF-D helpless on the ground and highly vulnerable to the applicant's subsequent violence. Her Honour expressly had regard to that circumstance. 91However, it is quite plain from the facts agreed to by the applicant that his role in the offence was significantly greater than that of ZBN. The difference in the culpability of the two offenders was very substantial. 92So far as I can see, there is little in the evidence concerning the personal circumstances of the applicant, and that concerning the personal circumstances of ZBN, to differentiate between the two. Both were 17 at the time of the offence, although ZBN was older by about 3 ½ months. In respect of ZBN English DCJ made very favourable findings concerning his rehabilitation, but this did not markedly distinguish him from the applicant. 93The second aspect of the observations extracted from Postiglione of present materiality is the question of proportionality. Even when differences, either in culpability, or in personal circumstances, or both, justify disparity in sentencing, then, nevertheless, due proportion between the sentences is to be applied. 94In oral argument, counsel who appeared for the applicant emphasised the disparity: a differential of 5 years in the head sentences (no non-parole period was specified for ZBN); moreover, execution of ZBN's sentence was wholly suspended, so that he spent no time in custody. Counsel sought to explain the disparity by reference to the treatment given by the sentencing judge to the relative youth of the applicant. That, as indicated above, became a separate ground of the application. 95I have set out above the remarks made by her Honour with respect to the youth of the applicant; in sentencing ZBN, she made only passing reference to his youth, and did not allude to the principles concerning the sentencing of young offenders. It is therefore not apparent that her Honour unduly favoured ZBN in that regard. 96However, I have concluded that there is some merit in the "proportionality" aspect of this ground. Although substantially less culpable, ZBN was, nevertheless, involved in the attack, and did aim the first blow, and kicked MF-D. While some disparity was both justified, and required, I have concluded that the disparity in the sentence was excessive, giving rise to a justifiable sense of grievance in the applicant. In due course, it will be necessary to consider the consequences of that finding. 97It is now convenient to move to ground 4. Ground 4: Youth 98I have set out above the remarks made her Honour with respect to the youth of the applicant. The principles concerning the relevance of youth in the sentencing process have been stated in various ways, not always consistently. The major inconsistency lies in the approaches taken to whether the gravity of the offence in question has a bearing on the application of leniency that might otherwise be extended to a young offender. A suitable starting point is the decision of this Court reported as "GDP" (1991) 53 A Crim R 112. The offence there in question was malicious damage to property. The offender was 15 years of age at the time of sentence. The report does not state his age at the time of the offences, but from the dates given it can be calculated that he was two months short of his fifteenth birthday. At first instance, a custodial penalty was imposed. The sentencing judge had said that the ordinary principles of sentencing applied in exactly the same way as they applied to adult offenders. Of this, Mathews J, with whom Gleeson CJ and Samuels JA agreed, said: "This is not so. Quite different principles apply in the sentencing of young offenders ..." 99Having found error in that, and in another, respect, her Honour went on, in the context of reconsidering the penalty to be imposed, to turn her attention to the correct principles. Having remarked that the offences committed were prevalent amongst young people in the metropolitan area, she said: "If general deterrence were a substantial consideration in the sentencing of this applicant, then a custodial order would almost certainly be called for." 100However, she then referred to the then relatively recent legislative guidelines contained in s 6 of the Children (CP) Act (to which I will come in more detail below). She referred to some earlier decisions in which it had been held, for example: "... in the case of youthful offender ... considerations of punishment and of general deterrence of others may properly be largely discarded in favour of individualised treatment of the offender, directed to his rehabilitation.": R v Wilcox, unreported, 15 August 1979, per Yeldham J; " and: "In the case of a young offender there can rarely be any conflict between his interest and the public's. The public have no greater interest than that he should become a good citizen.": R v Smith [1964] Crim LR 70, adopted by Hunt J in R v Bellavia, (unreported, 16 August 1980)." 101Those latter two statements can, in my opinion, now be seen as far too broad. Indeed, that was the view taken by Mathews J in 1991, in saying that considerations of general deterrence should not be ignored completely in the sentencing of young offenders, and citing as authority a decision in R v Broad (unreported, 30 March 1984) per Street CJ. Her Honour held that, even where, in the case of an adult, principles of retribution and general deterrence were important, rehabilitation must be the primary aim in relation to an offender as young as the offender there under consideration. I pause to observe that a 14 year old offender is a far cry from one who is 17 years and 4 months, as was the applicant as the time of this offence. 102A somewhat different approach was taken only three months later in R v Pham and R v Ly (1991) 55 A Crim R 128. There the offences were of robbery in company, committed in private dwellings. One offender was on bail for a similar offence, the other serving a period of probation for, inter alia, an offence of break, enter and steal. The former was under 20 years of age, the latter under 18 years of age. The appeal was by the Director of Public Prosecutions. 103Lee CJ at CL, with whom Gleeson CJ and Hunt J (as he then was) agreed, said: "It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision in Williscroft [1975] VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment, ie, coercive action is fundamental to correctional treatment in our society. ... ... the general principle of sentencing was expressed in Dodd (unreported, Court of Criminal Appeal NSW, Gleeson CJ, Lee CJ at CL and Hunt JJ [sic], 4 March 1991) as being one which requires there to be a reasonable proportion between sentence and the gravity of the crime committed." (italics added) That was, however, a case in which the offender was 27 years of age and it is plain that the court considered that treating him as a young offender was scarcely appropriate. 104A significant decision with respect to the treatment of youthful offenders in respect of very serious crimes is R v Hearne [2001] NSWCCA 37; 124 A Crim R 451. That offender had pleaded guilty to a count of murder, and one of malicious wounding with intent to do grievous bodily harm. Both victims were police officers, although in plain clothes, and their status was accepted as not having been known to the offender. The offender was three months short of his nineteenth birthday at the time of the offences. The sentencing judge (Wood CJ at CL) said, in his Remarks on Sentence: "76.The age of the prisoner is also a matter which needs to be taken into account in that there is a public interest, in the case of a young offender, in imposing a sentence that preserves a proper opportunity and encouragement for rehabilitation. The considerations of punishment and general deterrence, it has been accepted, should be regarded as subordinate to the need to foster the interests of rehabilitation in the case of a young offender ... however, the significance of this factor diminishes the nearer the offender is to adulthood ... as it does when the offender conducts himself like an adult and commits a particularly serious crime ... the present is a case where these principles apply to reduce, although not entirely to exclude, any leniency that can be extended on account of the prisoner's youth." (italics added) 105On appeal, it was submitted that: " ... the youth factor was not to be diminished (merely) because of the seriousness of the crime". Reliance was placed on observations quoted in GDP that 'in sentencing young people ... the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed' ". 106Of this, this Court (Powell JA, R S Hulme and Dowd JJ) said: "24.The ... submission is supported by the passage we have quoted and by the fact that in none of the cases is it suggested that the weight to be given to the element of youth varies depending on the seriousness of the offence. Rather is the topic dealt with in materially the same way as it is in the case of lesser offences ... . Of course that is not to say that other factors such as deterrence or retribution may not have a relatively greater part to play in the more serious offences than they do in less serious ones." (italics added) (It is not entirely clear, but it seems to me that "the passage we have quoted" was the passage from GDP.) The Court explained the principle involved as lying: "... in at least part of the rationale for making any allowance for youth, that is, the immaturity which is usually involved. Where that immaturity is a significant contributing factor to an offence then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years." 107I find it a little difficult to reconcile the proposition there stated with the decision in Pham. The decision in Pham was cited by Spigelman CJ in R v Sharma [2002] NSWCCA 142; 54 NSWLR 300 at 74, when his Honour said: "Armed robberies of the character involved in the present proceedings, committed by young persons, generally with an addiction problem, are so prevalent that the objective of general deterrence is entitled to significant weight in the process of sentencing for this offence, notwithstanding the youth of the typical offender ..." 108It seems to me that the weight of authority is that the seriousness of an offence is relevant to the emphasis that can be given to the youth of an offender. That does not mean that youth is not an important consideration; but retribution and deterrence cannot, in a case as serious as the present, give way entirely or even substantially to the interests of rehabilitation. It cannot be overlooked that MF-D will for the rest of his life suffer the consequences of the applicant's action. 109Reference has been made to R v Mastronardi (see above) in which Sully J (with whom Grove J and I agreed) said: "20.In my opinion it is timely to make plain, yet again, that youth, - whether it is real, or merely comparative, or defined with a generous elasticity, - is not a cloak of convenience behind which, relevantly, those who deliberately engage in armed robbery can shelter from the just consequences of their conduct." 110There is no identifiable error in the sentencing remarks concerning the effect of the applicant's youth on the sentence selected. It remains to be seen whether the principles were appropriately reflected in the sentences imposed. That question is intertwined with the items raised under the next ground to be considered, Ground 3. Ground 3: Children (Criminal Proceedings) Act s 19 111Both counsel agreed that the sentencing judge was in error in making a recommendation, as distinct from an order, that the applicant serve his sentence in a juvenile detention centre until he attains the age of 21 years and 6 months; they were united in urging that this Court substitute an order in those terms. 112The recommendation was purportedly made under s 19(3) of the Children (CP) Act, and, to the extent that that section is framed in terms of orders, but not recommendations, counsel are correct. The recommendation was also erroneous in specifying that the sentence be served in a juvenile detention centre: in 2004, subs (a) of s 19 was amended to provide for orders that the sentence be served "as a juvenile offender". This was, it seems, to preserve the potential of authorities to transfer, in an appropriate case, an offender to other forms of detention facilities. 113The ground has, however, exposed a different and more fundamental defect, not identified by counsel, in the approach taken by the sentencing judge. 114Section 19 appears in Part 2, Div 4, of the Children (CP) Act. Section 19(1) provides: "If the court sentences a person under 21 years of age to whom this Division applies to imprisonment in respect of an indictable offence, the court may, subject to this section, make an order directing that the whole or any part of the term of the sentence of imprisonment be served as a juvenile offender." Section 19(2) is in the following terms: "A person is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 21 years, unless: (a)in the case of a sentence for which a non-parole period has been set - the non-parole period will end within six months after the person has attained that age, or (b)..." 115The non-parole period imposed upon the applicant will expire on 13 October 2014. The applicant will then be 23 years and 8 months of age: that is, the non-parole period will not end within six months after he has attained the age of 21 years. Section 19(2) excludes the operation of s 19(1) on the sentence imposed upon the applicant. 116Moreover, the more serious of the offences to which the applicant pleaded was, within the definition provided by s 3 of Children (CP) Act, "a serious children's indictable offence" because it is punishable by imprisonment for 25 years. 117Section 19(3) relevantly provides: "A person who is sentenced to imprisonment in respect of a serious children's indictable offence is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 18 years, unless: (a)the sentencing court is satisfied that there are special circumstances justifying detention of the person as a juvenile offender after that age, or (b)in the case of a sentence for which a non-parole period has been set - the non-parole period will end within six months after the person has attained that age, or (c)... This subsection is subject to subsection (2)." In my opinion, it is clear that there was no power in English DCJ, and there is no power in this Court, to order that the sentence imposed (I emphasise the sentence imposed) be served as a juvenile offender. Because of subs (2), even a finding of special circumstances would not permit an order to be made that went beyond the applicant's 21st birthday. 118Subs 19(4) and (4A) are relevant. They are in the following terms: "(4)A finding of special circumstances for the purpose of subsection ... (3) may be made on one or more of the following grounds, and not otherwise: (a)that the person is vulnerable on account of illness or disability (within the meaning of the Anti-Discrimination Act 1977), (b)that the only available educational, vocational training or therapeutic programs that are suitable to the person's needs are those available in detention centres, (c)that, if the person were committed to a correctional centre, there would be an unacceptable risk of the person suffering physical or psychological harm, whether due to the nature of the person's offence, any assistance given by the person in the prosecution of other persons or otherwise. (4A)In particular, a finding of special circumstances may not be made simply because of the person's youth or simply because the non-parole period of the person's sentence will expire while the person is still eligible to serve the sentence as a juvenile offender." In other words, more than mere youth is necessary to permit a finding of special circumstances. 119More is here present. At the time these reasons were prepared, the applicant was aged 20 years and 10 months. At the time of judgment he will be 21 years and three months. He has never previously been convicted of an offence and has never served any period in custody. Because of his naivety and suggestibility (as found by Dr Rowe) he is vulnerable, and will be particularly vulnerable in an adult prison. The effect of s 19 is that, if the sentence imposed is to stand, he would be transferred to an adult prison forthwith and would serve 2 years and 5 months in such a facility. (Two assumptions are inherent in the above: first, that the applicant has not already been transferred to adult custody; second, that he will be released at the expiration of his non-parole period.) That was a consideration not taken into account by the sentencing judge, because of the misunderstanding about the effect of s 19, but it is one that is, in my opinion, legitimate and relevant. The passage of time has not altered my reasoning. 120One difficulty is, because of her misunderstanding about the effect of s 19, the sentencing judge did not make findings appropriate to subs (4) and (4A). There was material that would have enabled her to do so. There was no evidence that would have permitted a finding of special circumstances under subs (4)(b) or (c). There was, however, evidence sufficient to permit a finding under subs (40)(a). 121"Disability" (as used in subs (4)(a)) is defined in the Anti-Discrimination Act relevantly in the following terms: "(e)a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour." It seems to me that Dr Rowe's diagnosis of Attention Deficit Disorder (which her Honour accepted) falls within this definition. 122It would therefore have been open to the sentencing judge to have made a finding of special circumstances for the purposes of subs (3). Even that, however, would permit extension of the period the applicant can serve in the juvenile detention facility only to February 2012, when he will attain the age of 21 years. 123However, it is also my opinion that the constraint imposed by these subsections that makes it inevitable that the applicant will serve the major part of his non-parole period in an adult facility is a consideration relevant to the determination of the length of the non-parole period to be imposed. In saying this, I have not overlooked, and am indeed conscious of, subs (4A), which requires that more than mere youth is essential for a decision that would enable a juvenile offender who attains adulthood during the term of the sentence to serve that sentence as a juvenile offender. For the reasons I have already given, more than mere youth was here present. 124It is then necessary to consider whether it was an error for her Honour to fail to take into account the circumstance that the legislation precluded the course that she envisaged (even though it was plain that she was aware that some part of the sentence would be served in adult custody); and the more difficult question whether it would have been open to her to tailor the sentence to take account of, and avoid, that circumstance. 125I have concluded that the first part of the question ought to be answered affirmatively, that it was an error to fail to take into account that circumstance. 126In part, this view is based upon s 6 of the Children (CP) Act, which is relevantly in the following terms: "A person or body that has functions under this Act is to exercise those functions having regard to the following principles: (a)... (b)that children who commit offences bear responsibility for their actions, but, because of their state of dependency and immaturity, require guidance and assistance, (c)... (d)... (e)... (f)that it is desirable that children who commit offences be assisted with their reintegration into the community, so as to sustain family and community ties, (g)that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparations for their actions, (h)that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim." 127A contrary view has been forcefully expressed. In TG v R [2010] NSWCCA 28 the court had under consideration an application for leave to appeal against sentences imposed upon a 17 ½ year old (at the time of the offences) in respect of four counts of dangerous driving causing death. It was clearly put in this Court that the sentences ought to be restructured in such a way as to ensure that the offender did not serve any part of his sentence in an adult prison. Howie J, with whom McClellan CJ at CL and Harrison J agreed said: "24.Certainly no reduction in the sentence could be justified for the reasons put forward by [counsel] for the applicant. The suggestion that a sentence should, or could, be constructed with a view to bringing about a certain type of custodial arrangement should be firmly rejected. It is rarely, if ever, appropriate for a sentencing court to take into account administrative arrangements or executive decisions in determining the sentence to be imposed upon an offender. More importantly it would be quite wrong for a judge to seek to avoid a statutory prescription upon where a juvenile offender is to serve a sentence by reducing the sentence to avoid the administrative decision that a juvenile upon reaching the age of 21 is to be transferred to an adult prison. 25.This Court has stated consistently that the proper approach is to determine the appropriate sentence and then consider what, if any, options exist as to how that sentence is to be served. That approach was clearly stated in R v Zamagias [2002] NSWCCA 17. ... It would be unprincipled and an error of discretion for the court to reduce a sentence solely in an attempt to avoid a juvenile offender spending a period in custody in an adult facility." (italics and bold added) 128It may be that the italicised sentence in [24] is stated rather too broadly. It is well established, for example, that the fact that an offender will serve his/her sentence in protective custody is a significantly relevant factor in the determination of the sentence to be imposed: see, for example, AB v The Queen [1999] HCA 46; 198 CLR 111; R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [176] - [177]. The rationale for this approach is that a sentence served in protective custody is seen to be served under more onerous conditions. 129In recent times, the fact that a sentence will be served under protection has not automatically resulted in a reduction in sentence. That is because it can no longer be assumed that the sentence will be served under more onerous conditions. Where it is established, or accepted, that the conditions of the imprisonment will be more harsh than might otherwise be expected, a sentencing judge is entitled, and even expected, to reduce the sentence that might otherwise have been imposed. 130Here, I would be prepared to accept that a sentence to be served by a young man, with no prior experience in the criminal justice system, in an adult gaol, will operate more harshly upon him that a sentence to be served in a Juvenile Justice facility. 131That does, in my opinion, allow some moderation of the sentence for that reason. It cannot, however, be allowed to be the sole (see TG at [25]) determinant of the sentence to be imposed. 132For the reasons given above, I am satisfied that error has been shown under this ground, but it is not error that can be corrected as proposed by counsel. I will discuss below how correction can be achieved. 133The second part of the question (can the court tailor the sentence specifically for the purpose of imposing a sentence that will involve no time in adult custody) has to be answered with very considerably more caution. As Howie J said in TG, it would be an error for the court to select a sentence solely for the purpose of avoiding a period in adult custody. Whatever sentence is imposed, wherever it is to be served, must meet the prime sentencing objective of recognising the objective gravity of the crime. If that is achieved, however, I am of the view, consistently with the approach taken in respect of sentences served in protective custody, that some, although limited, weight can be given to the nature of the offender's custody. 134In reaching this view, I am conscious of the observations of the court (of which I was a member) in R v MD, BM, NA, JT [2005] NSWCCA 342 at [49] - [50], [54] - [56]. That is why I have expressed the caution I have. Ground 2: manifest excess? 135The submissions advanced on behalf of the applicant under this ground focused upon two aspects of the sentencing. The first was the finding made by the sentencing judge that the objective gravity of the offence was below the mid-range of objective gravity "but only just". It was pointed out that, where the standard non-parole period does not apply, as in this case, such a finding is superfluous. However, the submission went on to contend that the finding led her Honour into error, because she then imposed a penalty appropriate to a case where the standard non-parole period applied as a guideline, and the offence fell within the mid-range. 136In my opinion there is some substance in this submission. Her Honour should not have allowed herself to be deflected into a consideration of the (irrelevant) standard non-parole period. That conclusion is fortified by the recent decision of the High Court in Muldrock v the Queen [2011] HCA 39, especially at [17] - [18]. 137It is also of note that her Honour made no reference to s 6 of the Children (CP) Act. 138The second aspect of the sentencing of which criticism was directed was the treatment of the applicant's youth. I have already dealt with this under ground 1, but it is, of course, relevant to ground 2 as well. 139There is no doubt that, in this case, her Honour was confronted with a most difficult sentencing task. On the one hand, the principal offence could only be said to have been at an extreme level of seriousness, particularly having regard to the consequences to the victim. Were the applicant an adult, he could hardly have complained about the sentence. On the other hand, the principles applicable to the youth of the applicant had also to be taken into account. An additional factor, not identified by the sentencing judge, is that to which I have referred under ground 3, above. The nature of the applicant's custody is relevant. Even if this Court, on the limited material available, were to find special circumstances under s 19(3) of the Children (CP) Act, the applicant would still serve a minimum of 2 years and 5 months in adult custody. There was no evidence before the District Court, or before this Court, of the custodial options available to offenders such as the applicant. 140In my opinion the sentence imposed was one that might be expected to have been imposed upon an adult offender. Moreover, although her Honour referred (briefly) to the evidence of the applicant's exemplary conduct during almost two and a half years on bail, it seems to me that that is not reflected in the sentence. This was not a case in which rehabilitation assumed major significance, because, apart from this aberrant offence, the applicant had no criminal background or conduct against which to be rehabilitated. He was not to be penalised for that; the objects of sentencing laid out in s 6 of the Children (CP) Act called for greater attention to be given to his potential to be a contributing member of society. 141Notwithstanding the objective gravity of the offence, I have concluded that this ground also is made out. 142It will therefore be necessary to set aside the sentence and re-sentence the applicant. 143Against that possibility, the court received two affidavits, one affirmed by the applicant on 15 November 2011, and a second affirmed by his solicitor on the same date. The applicant recorded the circumstances of his custody. He said that he was initially held at the Riverina Juvenile Justice Centre, but in September 2011 was transferred to the Frank Baxter Juvenile Justice Centre, which the court was told is at Kariong on the central coast of NSW. He said he has been "doing really well" in custody, and gets along with all "my inmates". He has not had any internal charges or any trouble while in custody. He has been seeing a psychologist. He has had some medical problems. He has completed all courses available to him. In a paragraph I find somewhat disturbing, he said: "7.I have completed all courses that have been offered to me at Riverina JJ and Frank Baxter JJ. I was going to school at Riverina JJ and Frank Baxter JJ I am attending school on days when people have pulled out. My name is on the waiting list to attend school permanently at Frank Baxter JJ." 144The affidavit of the applicant's solicitor annexed documentary evidence of the various programmes undertaken, and reports of his conduct. On 21 September 2011, it was recorded that: "[The applicant] is always a pleasure to have on any available programs and activities. [The applicant's] behaviour and personality has been consistently good." In another, a report of semester one of 2011 (presumably from Riverina) it was reported that: "[The applicant] has been working diligently in his OTEN distance education studies. Last term he completed a certificate 1 in access to work and training, and is currently completing a certificate 1 in hospitality [the applicant] is able to complete his modules independently and also asks for assistance when needed. It is a credit to [the applicant] that he has been self-motivated to complete these studies to further his education." All reports were to similar effect. In another comment, dated 12 September 2011, it was said: "[The applicant's] PLP [it is not clear what this means] indicates that he is a polite well-mannered student who is achieving well at school. His behaviour at school has been excellent and it is pleasing to see that he has the ability to work independently towards his TAFE studies." It is unnecessary to take further time restating the common theme. 145In the circumstances I have concluded that error has been shown and that it will be necessary to re-sentence the applicant. In determining what that sentence should be, I have particular regard to the highly impressive material tendered with respect to re-sentencing, as well as his pre-sentence conduct. The applicant has made good use of his time in custody, and has achieved such rehabilitation as is needed. 146For the purposes of s 19 of the Children (CP) Act, I would find special circumstances under subs (3), they being the applicant's vulnerability by reason of disability (Attention Deficit Disorder). I would therefore make an order directing that the whole of the non-parole period be served as a juvenile offender. 147 I would, in the interests of general deterrence, denunciation and retribution, maintain a lengthy head sentence. I would adopt the finding of special circumstances pursuant to s 44 of the Sentencing Procedure Act. I would not interfere with the sentence imposed in respect of the s 93C offence. I propose the following orders: 1.Leave to appeal granted; 2In respect of the offence of inflicting grievous bodily harm with intent to do so, appeal allowed, sentence quashed; 3.In lieu thereof, sentence the applicant to imprisonment for 5 years and 6 months, commencing on 14 October 2010, and concluding on 13 April 2016, with a non-parole period of 1 year and 9 months, concluding on 14 July 2012; 4.Direct that the whole of the non-parole period be served as a juvenile offender. 148HOEBEN J: In this matter I have had the benefit of reading the draft reasons of Whealy JA and Simpson J. The facts are fully set out in the reasons of Simpson J. 149I agree for the reasons their Honours have set out, that the applicant has a justifiable sense of grievance arising out of the lack of proportion between the sentence imposed on him and that imposed on ZBN, the other participant in the attack upon the victim (Ground 1). Accordingly, this Court must re-sentence the applicant. 150In relation to the ground of appeal asserting manifest excess in the sentence imposed, I agree with Whealy JA that this ground of appeal (Ground 2) should be rejected. 151I agree that the ground of appeal asserting a failure on the part of the sentencing judge to have adequate regard to the applicant's youth (Ground 4) should be rejected. 152In relation to the ground of appeal based on the Children (Criminal Proceedings) Act 1987 (Ground 3), I respectfully agree with Simpson J's analysis of the Act. I note that Whealy JA also agrees with this analysis. In that regard, Simpson J concluded that the applicant was ineligible to serve a sentence of imprisonment as a juvenile offender after he had attained the age of 18 unless there were either special circumstances justifying his detention as a juvenile offender after that age or, in the case of a sentence for which a non-parole period had been set, the non-parole period would end within six months after he had attained that age. Even where special circumstances were established, s19(2) of the Act would not permit an order to be made that went beyond the applicant's twenty first birthday. 153Where Whealy JA and Simpson J differ is in the application of ss19(4) and (4A). Those sections provide: "(4) A finding of special circumstances for the purpose of subs ... (3) may be made on one or more of the following grounds, and not otherwise: (a)That the person is vulnerable on account of illness or disability (within the meaning of the Anti-Discrimination Act 1977), (b)That the only available educational, vocational training or therapeutic programs that are suitable to the person's needs are those available in detention centres, (c)That, if the person were committed to a correctional centre, there would be an unacceptable risk of the person suffering physical or psychological harm, whether due to the nature of the person's offence, any assistance given by the person in the prosecution of other persons or otherwise. (4A)In particular, a finding of special circumstances may not be made simply because of a person's youth or simply because the non-parole period of the person's sentence will expire while the person is still eligible to serve a sentence as a juvenile offender." 154Simpson J concluded that there was evidence before the sentencing judge such as would satisfy subs (4)(a) and that the sentencing judge erred in not taking that evidence into account. Whealy JA disagrees. On this issue, I agree with Whealy JA and am not satisfied that it was open to the sentencing judge to make a finding under subs (4)(a). 155In relation to the re-sentencing of the applicant, I agree with the sentence proposed by Whealy JA for the reasons his Honour has set out. 156While not strictly necessary, given my agreement with Whealy JA as to the re-sentencing of the applicant, I should say something about the possible tension between the remarks of Simpson J in her draft reasons and those of Howie J in TG v R [2010] NSWCCA 28 at [24] - [25]. On that issue I agree with the remarks of Whealy JA at [21] - [22] of his reasons. 157It follows that I agree with the orders proposed by Whealy JA.

Grounds of appeal 7I shall briefly comment on each of the grounds of appeal. 8I agree that the parity ground (Ground 1) has been made good. I agree with Simpson J that ZBN was plainly involved in the attack, had knocked the victim to the ground and kicked him while he was there. It is true that the agreed statement of facts at ZBN's sentencing referred to the fact that he, earlier in the evening had, in a rather desultory fashion, endeavoured to dissuade the present applicant from seeking out the victim for retaliation. It is also true that ZBN did not intend that the victim's head would be rammed into the ground as it was, and that his involvement in the injuries sustained by the victim was considerably less than that of the applicant. Nevertheless, I agree with Simpson J that the disparity between his sentence and that imposed on the applicant was, in all the circumstances, excessive, giving rise to a justifiable sense of grievance in the applicant. 9In relation to Ground 2, I do not think the sentence imposed on the applicant, viewed on its own, was manifestly excessive. There is no contradiction or inconsistency between this view and my earlier stated view that the disparity ground has been made good. It will often be the case that a sentence imposed on an offender is not itself manifestly excessive but, when account is had to the sentence imposed on a co-offender, the disparity itself will be seen as manifestly excessive. 10For the reasons given in outlining the nature of the attack on the victim, I conclude that a very significant sentence was warranted. The applicant's actions were deliberate, to a degree premeditated and had terrible consequences for the victim: R v Mitchell, R v Gallagher [2007] NSWCCA 296, at [27]. The present situation was an example of street violence at a very high level. The need to deter young men in company, often intoxicated, from indulging in violence of this kind in public streets can hardly be overstated. This Court has said on repeated occasions that such acts need to be addressed by sentences that carry a very significant degree of general deterrence: SJ v R [2011] NSWCCA 160. And this is so notwithstanding the youth of an offender: AI v R; R v SB and AI [2011] NSWCCA 95 per Hodgson JA at [69]; R v DGP [2009] NSWSC 1154 at [101]-[102]; MS2 v R [2005] NSWCCA 397 per Simpson J. 11The applicant relied on two aspects of the sentencing remarks in support of his argument that manifest excess had been demonstrated. The first was the finding that the objective gravity of the offence was below the mid-range of objective gravity "but only just". Simpson J reads the sentencing judge's decision in this area as indicating that the penalty imposed was one appropriate to a case where the standard non-parole period applied. I do not, for my part, read the sentencing judge's decision in that way. In my opinion, read fairly, her Honour was doing no more than endeavouring to state the level of objective seriousness of the applicant's offending. It is apparent from the whole of the remarks on sentence that her Honour was well aware that the standard non-parole system did not apply to the sentencing exercise she was undertaking. This appears not only from her remarks on sentence, but also from the submissions that were made to her by legal representatives for both the Crown and defence and her response to those submissions. 12A determination of where on the scale of criminality an offence lies must be regarded as an essential part of the sentencing process, whether or not the offence attracts a standard non-parole period: King v R [2011] NSWCCA 46. Nowhere in the remarks on sentence does her Honour indicate that she was undertaking a two-staged approach in determining the appropriate sentence. Her Honour simply determined where on the scale of criminality the offence lay, and this was something she was entitled to do, indeed, obliged to do. 13The second aspect of the sentencing relied on by the applicant was the treatment of the applicant's youth. Both Simpson J and I recognise that the principal offence here was at an extreme level of seriousness, particularly having regard to the consequences to the victim. Where we respectfully part company is in relation to whether the applicant's youth overbore this consideration. In my opinion, it did not. I have said enough earlier as to the nature of the crime and the need to reflect personal and general deterrence in this sentence. Notwithstanding the objects in s 6 Children (Criminal Proceedings) Act, the present matter called for a stern sentence. In my opinion, her Honour appropriately took into account the applicant's youth, the effect of his intoxication, his plea of guilty and remorse, as well as his excellent prospects of rehabilitation and his proper observance of his strict bail conditions and nightly curfew since the time of his arrest. She also took into account the fact that he was unlikely to re-offend. In my opinion, notwithstanding that he was seventeen years and four months at the time of the offence, given the nature of the offence and the other matters to which I have referred, her Honour's sentence fell within a sound range of appropriate discretion. I would not find that the sentence was manifestly excessive. 14Ground 3 relates to the recommendation made by the sentencing judge in relation to the applicant's serving his sentence in a juvenile detention centre until he attained the age of twenty-one years and six months. I agree with Simpson J that the legislation required the making of an order rather than the giving of a recommendation, if it were open to make such an order. 15I also agree with Simpson J's careful and thorough analysis of the sections in the Children (Criminal Proceedings) Act. The principal offence to which the applicant pleaded guilty was plainly "a serious children's indictable offence", as Simpson J noted. This meant that the applicant was ineligible to serve a sentence of imprisonment as a juvenile offender after he had attained the age of eighteen, unless there were either special circumstances justifying his detention as a juvenile offender after that age or, in the case of a sentence for which a non-parole period had been set, the non-parole period would end within six months after he had attained that age. 16The conclusion reached (favourably to the applicant) by Simpson J was that the applicant's ADD condition (diagnosed by Dr Rowe) fell within the definition of "disability" where appearing in the Anti-Discrimination Act 1977 (NSW). As Simpson J points out this definition is, relevantly, in the following terms: "(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour." Her Honour thought that there was no evidence that would have permitted a finding of special circumstances under s 19(4) (b) or (c). She concluded, however, that there was evidence sufficient to permit a finding under s 19(4)(a) ("the person is vulnerable on account of illness or disability" within the meaning of the Anti-Discrimination Act 1977). 17In fact, although the sentencing judge made no finding, there was evidence before her Honour that might have satisfied s 4(b). This was the evidence from Mr Andrew Adams, the assistant manager of the Juvenile Justice Community Service Office in Wagga. He gave evidence pointing out the availability of psychologists and psychiatrists capable of providing treatment in the Riverina Juvenile Justice Centre, particularly for Aborigines. By contrast, he said these services were not always available in the adult Junee Correctional Centre. 18Although an order may have been capable of being made based on special circumstances arising under s 4(b), I am by no means confident that the evidence before the sentencing court entitled her Honour to make an order for a finding of special circumstances under s 4(a). I am far from confident that Dr Rowe's "diagnosis" of attention deficit disorder necessarily satisfied the definition of "disability" in the Anti-Discrimination Act. Nor was there evidence of vulnerability on account of the applicant's ADD, whatever its level of severity may have been. 19This is so for two reasons. First, I do not read the evidence as suggesting that the applicant would be vulnerable in an adult prison. Secondly, there was no evidence of the level of the applicant's ADD. The thrust of Dr Rowe's report was that ADD, coupled with significant alcohol consumption, had the likelihood of delivering "poor outcomes" for someone such as the applicant. What was being suggested was that medication and anger counselling, etc, would improve his self-regulation, control, attention and consequential thinking habits. Moreover, I am by no means satisfied that this previously undiagnosed and untreated ADD condition necessarily met the definition in the anti-discrimination legislation. Dr Rowe principally relied on the condition, whatever its severity or lack of it, to minimise the applicant's culpability in the commission of the offence. He did not address the issue raised by s 19(4)(a). 20One further matter requires comment: there is, it appears, a possible tension between Simpson J's remarks in her draft decision and the remarks of Howie J in TG v R [2010] NSWCCA 28. 21Simpson J makes two points. The first is that Howie J stated that "it would be an error for the Court to select a sentence solely for the purposes of avoiding a period in adult custody". Consequently, Simpson J has accordingly expressed the view that some limited weight can be given to the nature of the offender's custody in the present matter, although her Honour acknowledges that the sentence cannot be fashioned solely on the basis that such recognition is designed to avoid a period in adult custody. 22In one sense, it is not necessary for me to make any comment about this aspect of Simpson J's decision. That is because the re-sentencing exercise I favour will necessarily take the applicant's non-parole period well beyond the period of one year and nine months selected by Simpson J. The consequence of that will be that, so far as my decision is concerned, the applicant will be required, subject to the determinations of the correctional authorities, to spend a portion of his custodial time in an adult prison. Although it is not strictly necessary for me to say anything in those circumstances, I would simply add that there is a distinction, in my view, between taking into account conditions of custody such as protective custody when determining a sentence to be imposed and, on the other hand, imposing a sentence which has in contemplation a statute which prohibits a person from remaining in a juvenile detention centre unless the non-parole period is below a certain figure. In the latter situation, it would seem to me to be contrary to principle to select the shorter non-parole period even where that is merely one consideration and not the sole determinant: R v Zamagias [2002] NSWCCA 17 and TG v R per Howie J at [24]-[25]. At the very least, the impression will have been created that the sentence has been structured with an eye to avoiding the statutory outcome. This is not permissible: R v Zamagias [2002] NSWCCA 17.

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