(2011) 209 A Crim R 297
Bugmy v The Queen [2013] HCA 37
(2013) 249 CLR 571
Cahyadi v The Queen [2007] NSWCCA 1
(2007) 168 A Crim R 41
Dinsdale v The Queen [2000] HCA 54
(2000) 202 CLR 321
Dougan v The Queen [2006] NSWCCA 34
Source
Original judgment source is linked above.
Catchwords
(2011) 209 A Crim R 297
Bugmy v The Queen [2013] HCA 37(2013) 249 CLR 571
Cahyadi v The Queen [2007] NSWCCA 1(2007) 168 A Crim R 41
Dinsdale v The Queen [2000] HCA 54(2000) 202 CLR 321
Dougan v The Queen [2006] NSWCCA 34(2006) 160 A Crim R 135
KT v The Queen [2008] NSWCCCA 51(2008) 182 A Crim R 571
IE v The Queen [2008] NSWCCA 70(2008) 183 A Crim R 150
Markarian v The Queen [2005] HCA 25(2005) 228 CLR 357
MJ v R [2010] NSWCCA 52
Mill v The Queen [1988] HCA 70(1988) 166 CLR 59
Muldrock v The Queen [2011] HCA 39(2011) 244 CLR 120
Munda v Western Australia [2013] HCA 38(2013) 249 CLR 600
Pearce v The Queen [1998] HCA 57(1998) 194 CLR 610
Power v The Queen [1974] HCA 26(2007) 171 A Crim R 267
R v Henry [1999] NSWCCA 111(1999) 46 NSWLR 346
R v Hoang [2003] NSWCCA 380
R v Holder [1983] 3 NSWLR 245
R v Knight [2005] NSWCCA 253(2005) 155 A Crim R 252
R v Krstic [2005] NSWCCA 391
R v MAK [2006] NSWCCA 381
(2006) 167 A Crim R 159
R v Mitchell [2002] NSWCCA 270
R v MMK [2006] NSWCCA 272
(2006) 164 A Crim R 481
R v Qutami [2001] NSWCCA 353
(2001) 127 A Crim 369
R v Smith [2007] NSWCCA 100
R v Voss [2003] NSWCCA 182
R v Way [2004] NSWCCA 131
(2004) 60 NSWLR 168
R v Whyte [2002] NSWCCA 343
(2002) 55 NSWLR 252
R v Taufahema [2010] NSWCCA 241
Veen v The Queen (No 2) [1988] HCA 14
Judgment (13 paragraphs)
[1]
Solicitors:
S E O'Conner - Legal Aid NSW
J Pheils - Solicitor for Public Prosecutions
File Number(s): 2012/221123
Publication restriction: None
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal Law
Date of Decision: 28 November 2013
Before: Ellis DCJ
File Number(s): 2012/221123
[2]
Judgment
LEEMING JA: I have had the advantage of reading the judgments in draft of both Simpson J and Schmidt J. I agree with the reasons of Schmidt J and her Honour's conclusion that although there should be a grant of leave, the appeal against sentence should be dismissed.
I acknowledge the force of Simpson J's observation that the undiscounted starting point for two of the s 97(2) offences was eight years, considerably higher than the four to five year range stated in R v Henry [1999] NSWCCA 111; 46 NSWLR 346, even allowing for the fact that the latter incorporates a limited utilitarian discount for a guilty plea. But I respectfully disagree that the disparity discloses appellable error. As Schmidt J has pointed out, Henry was directed to a different, less serious offence, where a small amount is taken, committed by a young offender with no or little criminal history. Harley Johan was armed with a loaded rifle when he robbed his victims, the amounts he stole were not small, he had a lengthy criminal history and all of his crimes were committed while he was on parole following his conviction for robbery in company committed the previous year. It was open to the sentencing judge to impose head sentences of 6 years and 9 months for the two most serious of the five armed robberies to which he pleaded guilty, noting also that they were substantially accumulated with the sentences imposed for the other offences.
SIMPSON J: The facts of the offences for which the applicant stood to be sentenced are fully set out in the judgment of Schmidt J, which I have read in draft, and do not call for repetition. It is sufficient to say that, as a 17 year old about to turn 18, the applicant embarked on a course of serious and dangerous criminal offending. The offending began on 31 December 2011, just eight days before the applicant turned 18 (and while he was on parole), and continued until his arrest on 22 January 2012. It involved the use of dangerous weapons, and three of the four armed robbery offences as well as the aggravated break and enter offence, were committed in company with another person. The rifle, of which the applicant was in possession at the time of his arrest on 22 January, was then loaded, and it is a fair inference that it was loaded during the commission of the armed robbery offences. Numerous victims were put in fear, and in very real danger. In all, during that short period of time, the applicant committed four armed robberies (each carrying a maximum period of imprisonment of 25 years), a specially aggravated break and enter with intent (carrying a maximum term of imprisonment of 20 years) and possession of a firearm (carrying a maximum term of imprisonment of 14 years and a standard non-parole period of 3 years). The armed robbery charges were brought under s 97(2) of the Crimes Act 1900 (NSW), which prescribes a maximum penalty of imprisonment for 25 years.
I mention this at the outset of these reasons because it is necessary to balance the very serious objective criminality for which the applicant was to be sentenced against the equally compelling evidence of his personal circumstances.
As I have mentioned, the applicant was a young offender, on the verge of turning 18 at the commencement of this criminal campaign, just 18 years of age for the remainder. He has a record of criminal offences that began when he was 14 years of age, and includes a number of non-custodial dispositions. On at least five occasions, in 2008 and 2009, when the applicant was 14 and 15 years of age, those dispositions included orders "to stay every night as directed by the Department of Community Services", or "to reside as directed by Juvenile Justice and DOCS". Orders in these terms reflect the instability of the applicant's accommodation arrangements, and his personal history as presented to the District Court, principally through a pre-sentence report and the report of a psychologist, Ms Kathryn Wakely. In respect of later offences, the applicant was subject to "control orders" to be served in Juvenile Justice custody.
At the age of 19 and a half, the applicant estimated that, since the age of 13, he had spent about 18 months in total at liberty.
The applicant was in born in January 1994 to an Aboriginal mother and a father who he has never met, but believes to have been African-American. Before the age of 2 he was removed from the care of his mother by welfare authorities. The reasons for the removal were recorded as:
"… an itinerant lifestyle, adult sexual activity, substance abuse, violence, and an erratic parenting style."
Initially he was placed in the care of his maternal grandparents who were themselves subsequently deemed "unsuitable carers", and from whose care he was also removed. He was then placed into various foster care placements. He was removed from one of these placements by reason of substantiated abuse (the precise nature of which is not before this Court). Other placements failed because the carers were unable to cope with his persistent difficult behaviour. In one placement he was subjected to sexual abuse by an older foster brother. Notwithstanding these placements, he has had some contact with his mother. As a result of that contact, in August 2012 (after his arrest on the present offences), he was awarded $10,000 in victims' compensation for physical abuse and violence at her hands, and the hands of a person with whom she was living.
The applicant has never held employment. Prior to his present incarceration he was in receipt of a disability pension as a result of diagnosed intellectual disability. Over the years he has been diagnosed with various conditions, set out in the report of Ms Wakely. These include disorganised attachment style (1997), attention deficit hyperactivity disorder (2001), Asperger's syndrome (2001, but later eliminated), post-traumatic stress disorder, oppositional defiant disorder, reactive attachment disorder (2005) and Tourette's syndrome. He has also been diagnosed with schizophrenia, but subsequently claimed that that diagnosis came about because he gave a false history to the examiner.
Ms Wakely assessed his intelligence as in the mild intellectual disability range.
There is a history of mental illness in the family; his mother is said to suffer from mental illness, but again, the nature of that mental illness is not before the Court.
The applicant is not addicted to alcohol, which he rarely consumes. He has, however, a serious drug habit, and has used cannabis, ecstasy, amphetamines, cocaine and heroin.
Ms Wakely interviewed the applicant at a time when he had been in custody for 18 months, and had refrained from drug consumption. He expressed a wish, and intention, to be and remain drug free. Notwithstanding that, Ms Wakely assessed him to be in the high range for risk of general recidivism.
It can be seen that the applicant's criminal offences, and his personal circumstances, presented an extremely difficult sentencing task. In effect, two extremes, pulling in opposite directions, confronted the sentencing judge. At one extreme, the offences were very serious; at the other, the applicant's personal circumstances called for a degree of mitigation. The sentencing exercise was to effect some reasonable reconciliation between the two.
There has never been any doubt that a history of deprivation is a circumstance that warrants, in an appropriate case, some mitigation of sentence: R v Fernando (1992) 76 A Crim R 58; Bugmy v The Queen [2013] HCA 37; 249 CLR 571. However, those circumstances are to be balanced against the need to recognise the harm done to victims of offences, particularly offences of violence: Munda v Western Australia [2013] HCA 38; 249 CLR 600.
By his first ground of appeal, the applicant complains that the sentencing judge failed to give "appropriate weight" to his age and background in assessing his moral culpability.
What his Honour said in this respect is:
"The court has been provided with a pre-sentence report and a Juvenile Justice report. That Juvenile Justice background report is a necessary report in relation to the robbery of the bakery on 31 December 2011 because he was still a juvenile at that point in time. In relation to that matter the Court takes into account s 6 of the Children (Criminal Proceedings) Act [1987]. The Court notes the content of the presentence report and the Juvenile Justice report and the Court has also considered the psychological report prepared by Kathryn Wakely. All three documents speak for themselves and clearly establish that this young man has had a deprived and exceedingly problematic upbringing. Indeed, it is difficult to imagine anything worse. I do not propose though to extract any specific details as to his upbringing into these remarks. It is all to be found in those reports and I have closely considered the reports."
Later, his Honour said:
"The Court notes that this offender is a young man and the principles espoused by the Court of Criminal Appeal in relation to the sentencing of young offenders is applied, although the Court notes the proviso set out by the Court of Criminal Appeal in relation to the applicability of youth, that is, that general and specific deterrence are still relevant where the young person commits an adult type crime, which is certainly the situation in this case."
On the face of the Remarks on Sentence, therefore, it is difficult to see how this ground of appeal can be sustained, unless it can be shown that the express recognition of the applicant's history did not translate into the sentence imposed. In Bugmy, the High Court made it clear that the attribution of weight to the various (and often conflicting) sentencing considerations is a matter for the sentencing judge: see [24]. The question, the High Court held, is whether a sentence has been imposed that is above or below the range of sentences that could be justly imposed for the offence consistently with sentencing standards.
That brings me to the second ground of appeal, which is that the "overall sentence" imposed was manifestly excessive. The argument advanced in support of this ground depended heavily upon the guideline decision of this Court in R v Henry [1999] NSWCCA 111; 46 NSWLR 346. That decision was principally concerned with offences against s 97(1) of the Crimes Act, which prescribes a maximum penalty of imprisonment for 20 years (compared with the 25 years applicable to the applicant's armed robbery offences).
In Henry, in respect of offences against s 97(1), with certain common elements (set out in the judgment of Schmidt J) this Court held that sentences should generally fall between 4 and 5 years for the full term. It is of interest that in the Henry guideline, no mention is made of mitigating circumstances other than youth and limited criminal record. In particular, the guideline promulgated was not designed to take into account a history of deprivation and/or disadvantage of the kind recognised in Fernando, Bugmy and Munda - and present, to an extreme degree, in this care. Any recognition of those circumstances must come into effect after consideration of the guideline of 4-5 years.
It was submitted on behalf of the applicant that, although his Honour had referred to Henry, he had "discounted" it, because it dealt with charges brought under s 97(1) of the Crimes Act, and had not had regard to it in sentencing the applicant.
There are, as Schmidt J has pointed out, more and better reasons for departing from the Henry guideline. The guideline applies to an individual offence. It refers to a weapon as "like a knife, capable of killing or inflicting serious injury". It may be thought that a rifle would be more frightening to a victim, and the fact that it is (as was the rifle in the possession of the applicant on his arrest) loaded makes it significantly more dangerous than a knife. That is the reason that an offence against s 97(2) carries a 25 per cent higher penalty than an offence against s 97(1). Moreover, in all except one of the offences, more than "a small amount" was taken. On the other hand, the Henry guideline presupposes only a slight reduction (10 per cent) in respect of a plea of guilty. Here, the applicant was expressly allowed a reduction of 15 per cent.
Sentencing is not a mathematical exercise, and it would not be right to approach the question of manifest excess merely on the basis that, because the maximum penalty in respect of a s 97(2) offence is 25 per cent higher than the maximum penalty applicable to a s 97(1) offence, the sentence, by reference to the guideline, should be adapted in the same proportion. However, such an exercise is capable of bringing the sentences imposed on the applicant into perspective. Here, the head sentences (6 years and 9 months) imposed in respect of two of the armed robbery offences were 68 per cent higher than the bottom of the Henry range, and 35 per cent above the top of the Henry range. In respect of each of those offences, the sentencing judge allowed a reduction of 15 per cent in recognition of his pleas of guilty. That means the starting point was 8 years - double the bottom of the Henry range.
In Pearce v The Queen [1998] HCA 57; 194 CLR 610, McHugh, Hayne and Callinan JJ said;
"45 To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."
In this case, no express ground of appeal challenges the length of the individual sentences, although specific reference was made to those sentences in the submissions. However, it is the length of the individual sentences, together with the extent to which those sentences are accumulated on, or made concurrent with, other sentences, that leads to the ultimate overall sentence. In this case, in respect of two offences of armed robbery, the applicant was sentenced to imprisonment for 6 years and 9 months; in a third, he was sentenced to imprisonment for 6 years. Given the powerful mitigating circumstances arising from the applicant's background, it seems to me that in comparison to the Henry guideline, and taking into account the additional allowance referable to the applicant's plea of guilty, but bearing in mind the very serious nature of the offending, those individual sentences were "unreasonable or plainly unjust". In turn, that has given rise to an "unreasonable or plainly unjust" overall sentence.
The orders I propose are:
1. Leave to appeal granted;
2. Appeal allowed in part;
3. Confirm the sentences imposed in respect of counts 4, 5, and 6;
4. Quash the sentences imposed in respect of counts 1, 2 and 3. In lieu thereof, sentence the applicant as follows:
Count 2: imprisonment for 5 years and 3 months, to commence on 22 July 2013 and expire on 21 October 2018, with a non-parole period of 2 years and 9 months, to expire on 21 April 2016;
Count 1: imprisonment for 5 years and 6 months, to commence on 22 January 2014 and expire on 21 July 2019, with a non-parole period of 3 years, to expire on 21 January 2017;
Count 3: imprisonment for 5 years and 6 months, to commence on 22 July 2014 and expire on 21 January 2020, with a non-parole period of 3 years, to expire on 21 July 2017.
The overall sentence is one of 8 years to date from 22 January 2012 and expire on 21 January 2020, with a non-parole period of 5 years and 6 months. The earliest date on which the applicant will be eligible for release on parole is 21 July 2017.
SCHMIDT J: In November 2013, Ellis DCJ sentenced a young aboriginal offender, Harley James Johan, to a total term of imprisonment of 10 years, 6 months, with a non-parole period of 6 years, 6 months, for six serious offences to which he had pleaded guilty and for which he received discounts on sentencing of 15% or 25%. Four of the offences involved robbery with a dangerous weapon. One was a specially aggravated break enter and steal in company while armed with a dangerous weapon offence and one was an offence of possessing an unauthorised firearm.
Together, these offences amounted to a considerable crime spree committed over a relatively short period, while Harley Johan was at liberty on parole for another robbery offence. He now seeks leave to appeal the severity of those sentences on two grounds:
"1. His Honour failed to give appropriate weight to the Applicant's age and background in assessing his moral culpability for the offences.
2. The overall sentence imposed was manifestly excessive."
Notwithstanding the case pressed at the hearing that the sentences imposed upon Harley Johan were too severe, having regard to his youth and pitiable background, no error has been demonstrated in either his Honour's approach to this difficult, complex sentencing exercise, or in the sentences which he imposed.
In the result, for reasons which follow, I consider that while leave to appeal should be granted, the appeal must be dismissed.
[3]
The offences
Harley Johan was aged 17 years at the time he committed the first robbery for which he was being sentenced (count 1) and so the provisions of the Children (Criminal Proceedings) Act 1987 (NSW) applied to that offence. He was an adult at the time he committed the other offences.
He was sentenced as follows:
Count 6 - A firearm offence under s 7(1) of the Firearms Act 1996 (NSW) with a maximum term of 14 years imprisonment and a standard non-parole period of 3 years: After a 25% discount, a sentence of 3 years and 9 months, with a non-parole period of 2 years, was imposed, commencing on 22 January 2012, the date of his arrest.
Count 5 - A robbery offence under s 97(2) of the Crimes Act 1900 (NSW) with a maximum term of 25 years imprisonment: After a 25% discount a sentence of 4 years and 6 months, with a non-parole period of 2 years, 6 months was imposed, commencing on 22 July 2012.
Count 4 - The specially aggravated break enter and steal offence under s 113(3) of the Crimes Act the which carried a maximum term of 20 years imprisonment: After a 15% discount and some rounding a sentence of 5 years, with a non-parole period of 2 years, 6 months was imposed, commencing on 22 January 2013.
Count 2 - Another robbery offence under s 97(2) of the Crimes Act with a maximum term of 25 years imprisonment: After a 25% discount a sentence of 6 years, with a non-parole period of 3 years, commencing on 22 October 2013.
Count 1 - The juvenile robbery offence under s 97(2) of the Crimes Act with a maximum term of 25 years imprisonment: After a 15% discount and some rounding a sentence of 6 years, 9 months, with a non-parole period of 3 years, 6 months, commencing on 22 July 2014.
Count 3 - Another robbery offence under s 97(2) of the Crimes Act with a maximum term of 25 years imprisonment: After a 15% discount and some rounding a sentence of 6 years, 9 months, with a non-parole period of 2 years, 9 months, commencing on 22 October 2015.
The facts were agreed. Count 6 related to a shortened single shot rifle, found to be in working order, together with suitable ammunition and a repeating air pistol, designed as firearm, but not in working order. More ammunition was later found on search at Harley Johan's home.
Harley Johan was arrested early on the morning of 22 January 2012, on the Pacific Highway at Ourimbah, when police stopped a vehicle that matched descriptions given after the earlier robberies.
[4]
Ground 1 - Failure to give weight to the applicant's age and background in assessing his probable culpability
The case advanced for Harley Johan was that applicable principles of retribution and deterrence had to be assessed against his youth, the evidence of his deprived background and his impaired intellectual functioning. Those matters also had to be taken into account in assessing his moral culpability for his offending and when fixing the sentences imposed upon him. In oral submissions, it was also argued that Harley Johan's maturity and how this had affected his moral culpability for his offending, had to be taken into account.
It was noted that if Harley Johan served the entirely of the sentence imposed upon him, on release, he would have spent a quarter of his young life in custody. The view was urged that an overall non-parole period of 6 years, 6 months for his offending, in circumstances where he had been substantially incarcerated since the age of 16 years, reflected that all of these important considerations had not been properly taken into account in this sentencing exercise.
The result of the sentence imposed had been to leave him with a sense of hopelessness, which explained how a positive change in his attitude in custody before he was sentenced, had come to an end. A series of misbehaviours in custody had resulted. More recently, however, this had turned around. He had come to realise that his behaviour would have the result that he would not get parole, or a reduction in the sentence which he pursued and that he would spend the rest of his life in and out of custody.
In the circumstances, it was argued, delaying his release for a further number of years before he becomes eligible for parole was not appropriate. That would deprive him of the opportunity he needed to access programs in the community, which would assist his rehabilitation.
Despite the force with which these submissions were advanced, in my view, this ground of appeal was not made out.
[5]
Ellis DCJ's approach
His Honour's sentencing remarks reveal that the evidence as to all of Harley Johan's difficult circumstances, including his background, mental state and youth, were all properly taken into account. No error of principle has been established.
Ellis DCJ could not approach Harley Johan's offending systemically, as being less serious than offending by persons of other ethnicities (see Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 at [53]). His youth had to be taken into account and the effects of his profound deprivation had to be given "full weight", in assessing his moral culpability for his offending, the evidence establishing as it did, that it was such that it could have affected his capacity to mature and learn from experience (see Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [37] and [42] - [43]).
His Honour, however, had to assess the evidence as to these matters in circumstances where Harley Johan himself gave no evidence at the sentencing hearing and where the evidence which was led, revealed that he had given past accounts as to matters relevant to an assessment of the extent and consequences of his experiences, which were untrue. That also had to be considered by his Honour, in reaching conclusions as to what this evidence established and assessing Harley Johan's expressions of remorse (see R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim 369 at [58] - [59] and [79]; Alvares v The Queen [2011] NSWCCA 33; (2011) 209 A Crim R 297)
His Honour's sentencing remarks reveal that he gave these matters careful consideration, with the result that he reached conclusions which were largely favourable to Harley Johan. Those conclusions were also reflected in the sentences finally imposed upon him.
Ellis DCJ noted that Harley Johan was aged 17 years and 11 months when he committed the first robbery at the bakery, one week before his birthday on 7 January 2012 and that this offence, accordingly, had to be dealt with on indictment as a special children's serious indictable offence. The other offences all occurred between 7 January and his arrest on 22 January 2012.
His Honour noted that in sentencing Harley Johan for the bakery offence, he thus had taken into account the requirements of s 6 of the Children (Criminal Proceedings) Act, which provides that:
"6 Principles relating to exercise of functions under Act
A person or body that has functions under this Act is to exercise those functions having regard to the following principles:
(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,
(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) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,
(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,
(e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,
(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 reparation 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.
[6]
The evidence
In these remarks, his Honour was referring to a presentence report, a Juvenile Justice report and a report from the psychologist, Ms Kathryn Wakely, which were in evidence. His Honour did not refer to the details of the reports, but observed that:
"All three documents speak for themselves and clearly establish that this young man has had a deprived and exceedingly problematic upbringing. Indeed, it is difficult to imagine anything worse. I do not propose though to extract any specific details as to his upbringing into these remarks. It is all to be found in those reports and I have closely considered the reports."
The evidence provided a sound basis for these conclusions, although aspects of the evidence had to be approached with some caution, as I earlier explained.
Ms Wakely's report revealed that Harley Johan had given her an account of having been removed from his mother's care at 2 years of age, due to exposure to an itinerant lifestyle, adult sexual activity, substance abuse, violence and erratic parenting. His father, whom he had never met, was Afro/American. He was then placed with his grandparents for 8 months, before being placed with numerous foster families. He had two placements between the ages of 3 and 7 and then 8 to 14. There was substantiated abuse in the first of those placements. The second was stable, but he left to live on the streets at age 14, because his foster parents could not manage his behaviour. Since then he had continued to live intermittently on the streets, with friends and with his mother, with whom he still had a close, but difficult relationship.
Harley Johan had associated with criminals since age 7. His education was disrupted and finished in year 8, with result that he described his literacy to be limited but "okay" but "hopeless" at mathematics.
Ms Wakely observed that Harley Johan had also reported that he had exhibited behavioural problems throughout schooling, being involved in physical altercations with other students and teachers, with the result placement into various units for children with emotional and behavioural disturbances. Past DOCS case notes revealed he had problems with managing aggression, threatening others, violence, property destruction, inappropriate sexual behaviour, learning difficulties and speech delay, as well as problems with concentration and attention.
[7]
There was no error in his Honour's approach to this evidence
There was no error in his Honour's approach to the evidence as to the impact of Harley Johan's age and background in this sentencing exercise. They were relevant considerations, given not only the provisions of s 6 of the Children (Criminal Proceedings) Act, in relation to the first s 97(2) offence, but also in assessing his moral culpability for his offending, as mitigating factors under the provisions of s 21A(3)(j) of the Crimes (Sentencing Procedure) Act. They were also relevant subjective matters which had to be taken into account, as his Honour did, in this sentencing exercise.
There were, however, other considerations which also had to be borne in mind in this sentencing exercise. As McClellan CJ at CL discussed in KT v The Queen [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22] - [25]:
"[22] The principles relevant to the sentencing of children have been discussed on many occasions. Both 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. 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. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511 at [30].
[23] 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. Accordingly, allowance will be made for an offender's youth and not just their biological age (R v Hearne (2001) 124 A Crim R 451 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93 at [61]).
…
[25] The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity (R v Bus (unreported, Court of Criminal Appeal, NSW, No 60074 of 1995, 3 November 1995); R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in 'adult behaviour' (Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence (Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society."
[8]
Ground 2 - overall sentence imposed was manifestly excessive
A complaint of manifest excess requires an applicant to establish that the sentence imposed was "unreasonable or plainly unjust" (see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [6]). As discussed in Vuni v Regina [2006] NSWCCA 171 at [33]:
"This has to be established in a context where there is no single correct sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. Most pertinently the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because it may have exercised its discretion in a manner different from that of the sentencing judge. (Markarian v The Queen [2005] HCA 25 at [26] - [28])."
Harley Johan's background is certainly pitiable. That his Honour took proper account of his youth and his very difficult subjective circumstances is apparent not only from the individual sentences imposed upon him, but also from his approach to questions of totality, concurrence and accumulation. That had the result that, in truth, the overall sentence imposed upon him, given the gravity of the repeated, serious offending for which he was being sentenced was a relatively lenient one.
In my view, neither any of the individual sentences imposed, nor the overall sentence, have, however, been shown to be either unreasonable or plainly unjust.
That sentence is certainly within the 'ballpark' to which his Honour was directed. In Taufahema, error was found on appeal in the way that the sentence had been structured, with the result that the offender, who was 16 when the first offence was committed and 19 when sentenced, was resentenced to a total term of 10 years, with a non-parole period of 7. His offending comprised 3 counts of armed robbery under s 97(2) and one offence under s7)(1) of the Firearms Act, as well as 5 matters taken into account on a Form 1 for one of the robbery offences. The sums stolen were, however, considerably more than Harley Johan stole.
Harley Johan's case on manifest excess rested in considerable part on the submissions advanced as to his youth and deprived circumstances. It was also submitted that Ellis DCJ had not paid correct regard to the guideline judgment in Henry and that his s 97(2) robbery offences "fell squarely within the category of cases" dealt with in that judgment.
[9]
The Henry guideline judgement
In reaching his conclusions his Honour indicated that while the Henry guidelines did not apply to Harley Johan's s 97(2) offences, he had regard to them in arriving at the sentences he imposed. That approach was correct (see R v Hamied [2007] NSWCCA 151 at [11] - [13]; R v Franks [2005] NSWCCA 196 at [32] and Taufahema at [30]).
As Spigelman CJ discussed in Henry, while the Court had listed and heard together six Crown appeals and one severity appeal, one of which involved an offence under s 97(2), the Crown's application was that the Court of Criminal Appeal promulgate a guideline judgment for s 97(1) offences, which carries a maximum penalty of only 20 years (see at [48]). That application was accepted (see at [126]). The more serious, aggravated form of that offence involving under s 97(2) a "dangerous weapon", defined in s 4 to include a firearm, or an imitation firearm within the meaning of the Firearms Act 1996 (NSW) carries a maximum penalty of 25 years.
A sentencing range of four to five years for the full term of a s 97(1) offence was established in Henry (at [165]), for a category of case found at [162] of the guideline judgment to be sufficiently common for purposes of determining the guideline. That category of offences is:
(i) Young offender with no or little criminal history
(ii) Weapon like a knife, capable of killing or inflicting serious injury
(iii) Limited degree of planning
(iv) Limited, if any, actual violence but a real threat thereof
(v) Victim in a vulnerable position such as a shopkeeper or taxi driver
(vi) Small amount taken
(vii) Plea of guilty, the significance of which is limited by a strong Crown case.
Contrary to the case here pressed on appeal, Harley Johan's s 97(2) offences did not fall into this category. Not only was he being sentenced for multiple, more serious s 97(2) offences, he was a young offender with a considerable criminal record.
Further, as Simpson J discussed in R v Smith [2007] NSWCCA 100 at [66], the Henry guideline of a head sentence of 4 to 5 years applies where the offender is charged with a single offence. Multiplicity of offences call for a total sentence 'well in excess of the four to five years so promulgated". Additionally, Harley Johan's robbery offences involved use of a firearm, and in only one of the four robberies, was only a small amount taken. He was also being sentenced for other offences. All of these factors took him outside the Henry range.
[10]
Other relevant considerations
His Honour was obliged to assess the nature and seriousness of each of Harley Johan's offences. Consistently with the High Court's approach in Muldrock at [27], the objective seriousness of the offences had to be assessed without reference to matters personal to Harley Johan.
In the s 97(2) offences, it was relevant to have regard to the nature and extent of the threat involved and the use made of the weapons in each offence (see s 21A(2)(b) of the Crimes (Sentencing Procedure) Act and R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 at [106] - [107]). Use of a gun, even by pointing a gun at a victim, is an aggravating factor necessary to be taken into account, use of a weapon not being an element of the s 97(2) offence (see Dougan v The Queen [2006] NSWCCA 34; (2006) 160 A Crim R 135 at [32]).
It follows that the use of weapons and threats of violence involved in these robberies, the fact that some were committed in company, that they had involved vulnerable victims and certain planning, also had to be taken into account in assessing the seriousness of these offences.
Notwithstanding Harley Johan's youth and other difficult subjective circumstances, there was also, undoubtedly, a need in this case for both general and specific deterrence to feature in the sentences imposed upon him. Not only was he on parole for an earlier robbery, when he committed each of these offences, he already had a considerable, serious criminal record for offences of theft, break enter and steal, intimidation, malicious damage, assault occasioning actual bodily harm, common assault, affray, and robbery in company.
[11]
The sentence structure
That Ellis DCJ had proper regard to all of these matters appears not only from the individual sentences imposed, but also from how his Honour structured the sentences.
His Honour began with the firearms offence (count 6), which occurred on 22 January 2012. It carried a standard non-parole period of 3 years and a maximum penalty of 14 years.
The evidence in relation to this offence had to be considered in light of the relevant legislative purpose: namely, to deter and punish possession of firearms per se (see R v Krstic [2005] NSWCCA 391 at [14]). The sentence also had to reflect that Harley Johan's criminality was more serious, because these firearms had been used in other offences and that one of them was loaded (see R v Mitchell [2002] NSWCCA 270 at [14]).
In the case of this offence, s 54A(2) of the Crimes (Sentencing Procedure) Act also had to be borne in mind. Its effect is that the standard non-parole period which applied represents the non-parole period that, taking into account only the "objective factors affecting the relative seriousness of that offence", is in the middle of the range of seriousness. That term is not defined, but his Honour imposed a sentence considerably lower than provided by the standard non-parole period.
The result of Ellis DCJ's consideration was a starting point for this offence of 5 years. After a discount of 25%, Harley Johan was sentenced to 3 years and 9 months, commencing on the date of his arrest, 22 January 2012, with a non-parole period of only 2 years and a balance of term of 1 year and 9 months.
That was plainly not a heavy sentence, given the nature and seriousness of the offence, the statutory guideposts which had to be borne in mind, the obvious need for deterrence to feature in this sentence and the attention which had to be paid to protection of the public. The result plainly reflected the attention which his Honour paid to the evidence as to Harley Johan's youth and deprived background.
Section 44(2) of the Crimes (Sentencing Procedure) Act requires that the balance of the term of the sentence not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more. His Honour found that such special circumstances existed, given Harley Johan's youth, deprived circumstances, his need for rehabilitation and supervision once released on parole.
[12]
Order
I would order that leave to appeal be granted but the appeal be dismissed.
[13]
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Decision last updated: 10 April 2015
He was in the back seat and said to the arresting police officers when cautioned and asked whether he understood: "Yes, I have fucked up. Going to big boys house now. No more Juvie." When asked where the firearm could be found, he said "Under the seat in a red bag". When asked "Is it loaded?", he replied "The rifle is, but the pistol is a replica". He then admitted robbing the newsagency. When asked about other robberies, he declined to discuss them, but some co-accused then gave accounts which implicated him.
Count 5 had occurred earlier on 22 January 2012, at Kariong Newsagency, while Harley Johan was armed with a sawn off shotgun. He was alone and demanded money from a worker who was at the newsagency, rolling papers. Harley Johan was wearing a black hood and a red bandanna covering his face. He entered the store, where the victim noticed him, pointed a gun at his head and demanded money. The victim then gave him two $20 notes and he took the victim's wallet.
The victim asked if he could leave the wallet, which he threw to the ground and said "there's got to be more money, where's the safe?" The victim replied "I only do the paper run, I don't know where the safe is, I assume it's behind the door". Harley Johan told him to open it, but he said "I can't I don't know the combination." He then kicked the door until it opened and told the victim to go inside. The victim said "I don't have the combinations, look I only do the paper run". After pushing buttons on the safe and looking around for things to steal, Harley Johan said "I need money. I need money". The victim told him "you've taken my money that's not the newsagency's money" and Harley Johan then gave him back $20.
He also asked the victim how to open a cabinet containing mobile phones, but the victim didn't know. He then went back into the room with the safe directing the victim "stay there or I will shoot you". He finally left after grabbing some chocolates and handing the victim a snickers bar.
Count 4 also occurred on 22 January, just before 1:55 am, when Harley Johan and three others attempted to break into a taxi base at West Gosford. Two had their faces covered and all three were observed via CCTV by staff working inside, as they entered the building and walked towards the stairs leading to a call centre. Those inside were able to isolate themselves and prevent the offenders gaining access, while they called for help. The offenders left when they could not open the door. They were observed driving away in a vehicle, at high speed.
Count 2 was committed at 1:50 am on 9 January 2012, at Hungry Jack's at Beresfield, where two staff members were working. Harley Johan and another offender, who were armed with a sawn off single barrel gun and with what appeared to be a black pistol, entered, both wearing hooded jumpers pulled over their heads, with cloths covering their faces.
They ran through the front door, jumped over the counter, yelling, "take us to the registers and to the safe". They both pointed their weapons at one of the victims. The offender with the gun then ran to the safe, yelling to the other victim to open the safe, while the offender with the pistol took money from the register. The second victim could not open the safe. It was opened by the first victim, who then gave the offenders the money in the safe.
The offender with the pistol then yelled at that victim to open some drawers, which were empty. He pushed the pistol into that victim's back and he walked back to the safe, where he opened a second part which contained cash drawers. The offenders then removed the notes from those drawers and fled. A total of $3,824.76 was stolen.
Count 1 was the juvenile offence. It involved a robbery in company at Vili's Café and Bakery at Ourimbah, where staff were working, shortly after 4:30 am on 31 December 2011. The offender was armed with a shortened firearm and was in company with another offender, who was unarmed. They entered the back door of the bakery and pointed the firearm at one of the victims present. He called for help and told the other victim to run. Harley Johan then demanded money while his accomplice began searching drawers, taking two iPhones.
The second victim returned because of her concern for the other victim. Harley Johan then pointed the gun at her and demanded money from the till, which she gave him. He asked "where is the money" and she gave him the previous day's takings. He then asked for her bag and she gave him the money in the bag, which she had intended to deposit into the bank that day. He then demanded her ring, which she gave him and asked for more money. There was no more. While still pointing the gun at her, he said "If you call the police, we'll come back and kill you the next day."
The two offenders then ran off. In total they stole $8,465 cash. The ring was valued at $8,000.
Count 3 was committed at 4 am on 17 January 2012 at McDonalds at Cessnock, where staff were also working. One of the victims went to the car park from the rear of the restaurant, exiting through a gate, to change the menu signs.
One of the offenders stepped out from behind the gate as he returned and pointed a gun at his face, saying "I want the fucking money". He said "it's in the office." The other, who was armed with a 25 cm kitchen knife (with a 5 cm wide blade) followed as they returned inside. Two other staff members were inside working in the kitchen area.
The first victim was taken into the office and told to open the safe. He said only the manager could open it. The offender with the knife asked one of the other victims if she was the manager. The offender with the gun yelled "open the safe, open the safe" and she did, while the other two victims stood together with the other offender pointing the knife at them. The manager filled a bag with cash and the offender with the gun continued to yell "Where's the other notes? Where's the rest of the notes?". She panicked when told to open a second safe, entering the wrong combination. When it did not open, the offender with the gun yelled at her "I don't want to shoot you".
When asked where the rest of the notes were, she said that she could not access anything else, because Armguard had the keys. She grabbed bags to show that they only contained coins. The offenders then grabbed her handbag and left the store. There was $1,581.25 stolen, as well as $40 cash in the handbag.
Ellis DCJ also referred to the material he had been referred to from the Public Defender's website, which included matters going to the sentencing of juveniles and for adults with multiple counts. His Honour noted the evidence as to Harley Johan's conduct while incarcerated, which had included remaining drug free and with no misdemeanours following his transfer to Lithgow Detention Centre, where he had established a better rapport with Corrective Services Officers.
After referring to the sentencing of his co-offenders and noting that no questions of parity in their sentencing arose, his Honour dealt with submissions which had been made in relation to R v Taufahema [2010] NSWCCA 241, which he accepted to have been informative "in terms of the ballpark area of criminality for offending of this type".
His Honour also had regard to the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which include ensuring that the offender is adequately punished for the offence, to prevent crime by deterring the offender and other persons, to protect the community from the offender, to promote the offender's rehabilitation, to make the offender accountable for his actions, to denounce the conduct and to recognise the harm done to victims and the community.
His Honour also had regard to relevant mitigating and aggravating factors specified in s 21A of the Crimes (Sentencing Procedure) Act. He also considered the guideline judgment in R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346, observing:
" … and while the guideline does not specifically apply, it having
dealt with s 97(1) offences which carry a maximum penalty of 20 years
whereas this sentence involves four offences contrary to s 97(2) each of which carries a maximum penalty of 25 years, the principles set out within the
guideline judgment are generally applicable."
His Honour then said as to Harley Johan's youth:
" The Court notes that this offender is a young man and the principles
espoused by the Court of Criminal Appeal in relation to the sentencing of
young offenders is applied, although the Court notes the proviso set out by the Court of Criminal Appeal in relation to the applicability of youth, that is, that general and specific deterrence are still relevant where the young person
commits an adult type crime, which is certainly the situation in this case."
His Honour also concluded that special circumstances should be found, given Harley Johan's youth; that this would be his first lengthy term of imprisonment; and that he would need longer than normal time on parole, to assist him in reintegrating into the community and to deal with his substance abuse issues. The latter reflected the evidence as to his subjective circumstances, as to which his Honour observed:
"The Court notes that this young man has had very little support, that there has literally been no adult male support in his life, and that the subjective material which has been placed before the Court is of a high order. Nevertheless the criminality involved is very serious and a lengthy term of imprisonment is required to reflect that serious criminal conduct.
I note that had I been sentencing an older person, perhaps someone in their late 20s for these same offences that the penalties imposed would be significantly greater than I am now imposing for the reasons that I have indicated, that is his age, his deprived background and the fact that essentially all of these matters took place within a few weeks of his 18th birthday.
I note the level of his cognitive functioning is low although there is conflicting material in relation to that. Nevertheless, I accept that he was on a disability pension and I think it is probably a fair observation from all of the material to say that there is a definite cognitive deficit".
Harley Johan had no history of employment and since age 16, had received a disability support pension, as well as support from Aboriginal Youth Support, as a result of a diagnosed intellectual disability. As a result, he had been helped to locate accommodation.
Ms Wakely observed that Harley Johan was able to communicate appropriately and at an acceptable level at the interview. He did not evidence significant defects in communication or verbal comprehension. He had suffered asthma in the past, but now rarely required medication and reported suffering no other physical ill health.
She also noted that he had been diagnosed with schizophrenia when in detention, when aged 13 or 14, but he said he had lied to the psychiatrist about hearing voices, because he wanted medication. He did not like what he was prescribed, however, because it caused him to gain weight. At age 16 he had been held within the Forensic Hospital at Long Bay Correctional Centre, where he was prescribed antipsychotic medication, but he also denied having any past or present psychotic symptoms.
Harley Johan described his current mood to be stable and good, with his only problems being difficulty managing anger, which stemmed from his upbringing and family situation and resulted in violent outbursts. He said that in recent months he had begun to realise that his behaviour only caused further trouble for himself.
Ms Wakely noted that he had been diagnosed with various conditions over time, but he told her that he had never taken any of these sessions seriously at the time and that he had been unwilling to engage. Past diagnoses included Disorganised Attachment Style, ADHD, Asperger's Syndrome, Oppositional Deficient Disorder and Reactive Attachment Disorder, Tourette's Syndrome, PTSD, Mild Intellectual Delay to Borderline Range intelligence and mild to moderate speech delay. Subsequent testing in 2000 had shown Harley Johan's intelligence to be in the average range, but in 2008 testing had suggested mild intellectual disability.
Harley Johan also reported having being the victim of past abuse from a foster brother and father and that he continued to suffer flashbacks and nightmares, but that they were reducing over time and he was learning to deal with them.
Harley Johan did not enjoy alcohol, but reported using cannabis from age 9 and regularly after age 13. On weekends he used ecstasy. At 17 he began using ice, speed and crack cocaine and was using them regularly before his arrest, at a cost of some $3,000 to $4,000 per week. He had also used heroin on occasion, as well as using prescription drugs, such as valium and Xanax.
Harley Johan said that his offending was pursued to acquire food, clothing and cannabis, after he left foster care. He also enjoyed shopping. Later it was to support his substance abuse. He also said that he had spent only 18 months at liberty since age 13. His offences were committed to support his substance abuse. He described his lifestyle, which he now realised had not been as glamorous as he had envisaged. He said he now saw his behaviour as stupid, having himself experienced having guns pulled on him.
Harley Johan had not used substances in custody and planned to rehabilitate himself, by participating in the IDATP drug program while in custody, completing his year 10 School Certificate, avoiding anti-social associates on release and taking up employment with family members, who operated a business where there was work available for him.
On assessment Ms Wakeley found that Harley Johan's symptoms of depression, anxiety and stress were within normal levels; that he met criteria for a psychological dependence on ice prior to arrest; that his profile was no longer consistent with ADHD; that he was at high risk of recidivism; but that this risk could be reduced considerably, by targeting reasons for his earlier conduct problems.
Ms Wakely concluded that his early mistreatment was consistent with Harley Johan's history and behavioural problems, increased aggression, delinquency, and criminality. She found that he had become somewhat institutionalised as the result of further anti-social influences, substance abuse and criminal behaviour during his mid-teens.
She also noted that he had admitted that his history of mental health related diagnoses reflected fictitious and exaggerated symptoms, in order to obtain medication. There was also conflicted past intelligence testing. She considered this to be difficult to disentangle from the effects of past mistreatment, poor modelling, anti-social influences and substance abuse, which, together with minimal education and poor early nutrition, made a diagnosis of any possible conditions he was then suffering, difficult. She did, however, find that he was suffering symptoms of ongoing PTSD.
Ms Wakely considered that reports of attraction to living a gangster lifestyle and entertainment violence explained his aggression and high risk of ongoing recidivism, which required targeted treatment. She considered that he displayed some insight into his need to change, with a resulting interest in pursuing education, abstaining from substance abuse and seeking future employment. She recommended participation in the IDATP program and ongoing support and monitoring post release.
The presentence report made similar observations as to Harley Johan's background, drug use, education and employment. It was noted that he had no problems reading a psychologist's report, but that he had said that he experienced difficulties writing. He also denied having suffered past mental health issues, and that he had identified symptoms in order to gain access to drugs. He was assessed to be at medium risk of reoffending, to require treatment for drug use, supervision on release and monitoring of mental health issues.
There were also reasons for an award under the Victims Support and Rehabilitation Act 1996 (NSW) in evidence. There, it was concluded that Harley Johan had suffered compensable injury as the result of domestic violence, resulting in psychiatric injury, behavioural disturbance and emotional damage, which had longstanding and adverse impacts on his placement and schooling.
It is also settled that the weight given to considerations relevant to a person's youth, must diminish as the offender approaches the age of maturity (see R v Hoang [2003] NSWCCA 380 at [45]). An offender of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age (see R v Bus (Court of Criminal Appeal (NSW), 3 November 1995, unrep) and R v Voss [2003] NSWCCA 182 at [15]).
These considerations help explain the conclusions which his Honour reached as to the seriousness of the offences for which Harley Johan was sentenced and the length of the sentences finally imposed upon him. As his Honour observed, higher sentences would undoubtedly have been imposed upon him for these offences had Harley Johan been aged in his late twenties, rather 17 and 18, when he committed these offences.
The facts that an offender is either a juvenile, a young offender, and has a very deprived background, do not, however, lead automatically to the conclusion that an otherwise appropriate sentence, must be reduced. Indeed, the greater the objective gravity of an offence, the more likely it is that retribution and deterrence will have to be reflected in the sentence imposed, notwithstanding the regard which has to be paid to the interests of rehabilitation in such cases (see IE v The Queen [2008] NSWCCA 70; (2008) 183 A Crim R 150 at [16] and MJ v R [2010] NSWCCA 52 at [37] - [39]).
Further, in Henry it was settled that committing armed robbery to support a drug addiction is not an excuse or mitigating factor (see Wood CJ at CL at [236]). Even the evidence as to Harley Johan's mental state, equivocal as that was, did not necessarily lead to the result that a lower sentence should be imposed upon him. As discussed by Gleeson CJ in R v Engert (1995) 84 A Crim R 67 at 71, even where there is a causal relationship between a mental illness and an offence in a particular case, this does not automatically result in a lesser sentence. While that might reduce the importance of general deterrence, it could increase the importance of specific deterrence, or of the need to protect the public (see also Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465). On the evidence, these were certainly relevant considerations in this case.
On the case pressed on appeal, other than the result of this sentencing exercise, no error in his Honour's approach was identified.
For reasons which I will explain in relation to the second ground of appeal, in my view, there was no error in the conclusions which his Honour reached as to the sentences imposed on Harley Johan, either individually or in total, given the consideration which his youth, his deprived background and mental state required in this sentencing exercise. Indeed, the overall sentence imposed upon him was a considerably lenient one, given the overall criminality of the offences for which he was being sentenced, his moral culpability for that offending and the other relevant matters which had to be taken into consideration in this sentencing exercise.
It follows that this ground of appeal was not established.
Those submissions may not be accepted.
The only explanation for the sentences imposed is the regard which his Honour paid to the effect of Harley Johan's youth and deprived background in his moral culpability for his serious offending.
In sentencing Harley Johan, Ellis DCJ had to undertake an instinctive synthesis of the kind discussed in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.
Harley Johan was being sentenced for four s 97(2) robbery offences, which each carried a maximum penalty of 25 years. The attempted break and enter offence carried a maximum penalty of 20 years and the firearm offence a maximum penalty of 14 years, as well as a standard non-parole period of 3 years. These were all statutory guideposts to which his Honour had to pay regard, in accordance with the High Court's observations in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120.
Ellis DCJ also had to assess the objective seriousness of each offence and to consider Harley Johan's moral culpability for his offending, having regard to the evidence relevant to his youth, deprived background and mental state. His Honour had to have regard to relevant aggravating and mitigating factors revealed by the evidence; as well as Harley Johan's subjective circumstances. His Honour also had to have regard to questions of general and specific deterrence, as well as questions of totality, concurrency and accumulation of sentences. Moreover, his Honour had to determine whether special circumstances should be found, in relation to the ratio of periods of non-parole and parole fixed for the sentences imposed.
No error has been shown in his Honour's approach to any of these matters.
In any event, as discussed by Spigelman CJ, in R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 at [113], such a guideline judgment is to be taken into account only as a "check" or "sounding board" or "guide" on sentencing. It does not operate either as a "rule" or "presumption". That is the more so when the guideline does not apply to the particular offence in question.
The result was, in each case, that the non-parole period was considerably reduced. Had his Honour not adopted that approach, the non-parole period for this offence, for example, would have been 2 years, 9 months and a balance of term of 1 year.
Those considerations also had a considerable impact on his Honour's approach to the question of totality and the concurrency and accumulation of the other sentences he imposed.
The principle of totality required his Honour to ensure that the ultimate sentence imposed on Harley Johan for all of his offending did not exceed what was called for, in the whole of the circumstances which arose for consideration. His Honour thus finally had to assess the overall criminality involved in all of the offences for which Harley Johan was being sentenced and to determine what, if any, downward adjustment was necessary in order to achieve an appropriate relativity between the totality of his criminality and the totality of the sentences (see Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63; R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at [44] and R v Holder [1983] 3 NSWLR 245 ).
Given Harley Johan's youth, deprived background and past record of offending and incarceration and the results of the sentences imposed upon him, his Honour plainly also had to bear in mind what was discussed in R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [17], that:
"… an extremely long total sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint."
This was not, however, a case where the sentence for one offence could encompass the criminality of all Harley Johan's offences, given their nature and seriousness. Thus, his Honour also had to bear in mind in structuring the sentences he imposed, that public confidence in the administration of justice required him to avoid any suggestion that Harley Johan was receiving some kind of a discount for his multiple offending (see R v Knight [2005] NSWCCA 253; (2005) 155 A Crim R 252 at [112]).
The result of his Honour's approach was that all but 6 months of the sentence imposed for the firearms offence, was made concurrent with the sentence imposed for count 5, the s 97(2) offence also committed earlier that morning on 22 January at the newsagency.
No complaint was made about this sentence, or any other individual sentence which his Honour imposed, nor could it have been. It was the result of his Honour's approach to the question of totality, particularly the total non-parole period of 6 years, 6 months, before Harley Johan becomes eligible for parole, about which complaint was pressed.
An examination of the sentences which his Honour imposed, clearly shows, however, that there was no proper basis for that complaint.
The starting point for the sentence imposed for count 5, the newsagency offence, was only 6 years, notwithstanding the obvious seriousness of this offence. Ellis DCJ plainly considered that the criminality of this offence was lower than the other s 97(2) offences, given the amount taken and that this offence was not committed in company.
That Harley Johan was able only to steal $20 was the result of the victim's inability to open the safe. Also necessary to consider, however, was that he not only held the gun to the victim's head, but that he also threatened to shoot him.
After a discount of 25% for the plea, the sentence was reduced to 4 years, 6 months, with a non-parole period of only 2 years, 6 months. Further, all but 6 months of this sentence was made concurrent with the sentence for count 4. That was plainly also a very lenient result, given the nature and seriousness of this offence.
Despite this, Harley Johan's case was that the overall result of his Honour's approach was a manifestly excessive sentence, given his Honour's failure to follow the Henry guideline in relation to the s 97(2) offences and the approach adopted to Harley Johan's youth and deprived background, which I have already discussed.
A close analyses of the sentences imposed, shows that those complaints simply have no foundation.
The s 113(3) offence (count 4), also occurred on 22 January. It carried a maximum penalty of 20 years. The starting point for this sentence was also 6 years. After discount by 15%, Ellis DCJ imposed a sentence of 5 years, with a non-parole period of only 2 years commencing on 22 January 2013. Also necessary to be borne in mind is this sentence was made entirely concurrent with the sentences imposed for other offences.
The second s 97(2) offence (count 2), committed on 9 January 2012 at Hungry Jacks, was a considerably more serious offence than that later committed at the newsagency, as his Honour's starting point for this sentence, 8 years, reflected.
After a 25% discount, Ellis DCJ sentenced Harley Johan to 6 years for this offence, but imposed only a 3 year non-parole period, commencing on 22 October 2013. Further, this sentence was also made completely concurrent with the sentences imposed for other offences - counts 4 and 1.
This, too, was an entirely separate offence, committed on a different day, at a different place and involving different victims. It was also objectively a very serious offence, given not only the amount taken, but that there were two offenders involved, both armed, with both victims being threatened with those weapons.
It is well settled that a sentence for a particular offence which is to be served completely concurrently with another sentence for a different offence, can result in a sentence that is erroneously inadequate, because it does not reflect the totality of the criminality for which the offender is to be punished for the two acts of offending (see R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [11] - [13]). Such questions must be approached in the way discussed in Cahyadi v The Queen [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]:
"In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
The Crown did not submit that his Honour's approach was erroneously lenient. Nevertheless, the only explanation for this sentence is that it was the result of the considerable regard which Ellis DCJ paid to Harley Johan's youth, deprived circumstances and mental state, in assessing his moral culpability for this serious offending.
Harley Johan's first (juvenile) s 97(2) offence (count 1), was the robbery in company at Vili's Café and Bakery at Ourimbah.
This was also a very serious offence, reflected in the starting point for this offence at 8 years. After a 15% discount, the sentence imposed was 6 years and 9 months but with a non-parole period of 3 years, 6 months. While his Honour had to have regard to the effects of s 6 of the Children (Criminal Proceedings) Act and to take proper account of Harley Johan's youth and deprived circumstances, this was an offence which could not be dealt with more leniently than it was, given its gravity.
This sentence was, however, also made entirely concurrent with the sentences imposed for charge 2, the Hungry Jacks robbery and charge 3, the McDonalds robbery. That outcome could also not be described as either unreasonable or unjust. Nor was the sentence imposed for the last offence.
The final s 97(2) offence (count 3) committed at 4 am on 17 January 2012 at McDonalds at Cessnock, was also objectively a very serious offence.
The starting point for this sentence was also 8 years. After a 15% discount Harley Johan was sentenced to 6 years, 9 months, but with a non-parole period of only 2 years, 9 months. That was also a very lenient result, particularly given that the non-parole period imposed for count 1 expires on 21 January 2018 and the non-parole period for this count on 21 July 2018. The sentence for count 1 expires on 21 April 2021 and the sentence for this count, on 21 July 2022. This sentence is otherwise totally concurrent with that imposed for other offences.
The non-parole period imposed on an offender as the result of a sentencing exercise such as this, is the minimum period of actual incarceration that the offender must spend in full-time custody, having regard to all the elements of punishment, including rehabilitation, the objective seriousness of the crime and the offender's subjective circumstances (see Power v The Queen (1974) 131 CLR 623). There is no jurisdiction on appeal to reduce a non-parole period to the point where the resulting sentence is inappropriately lenient.
The result of this sentencing exercise was a considerable sentence for an 18 year old of Harley Johan's deprived background, who had already spent much of his life in detention. That, however, reflected the seriousness of the offences for which he was being sentenced, while on parole for other serious offences. His record did not entitle him to leniency, but in the result, for the entirety of that serious, repeated, offending, Harley Johan will be eligible for parole on 21 July 2018, after serving a total non-parole period of only 6 years, 6 months. Given the serious criminality involved in his offending, but for the regard paid to his youth and background and the conclusions which his Honour reached as to his prospects of rehabilitation, the overall sentence imposed upon him would not have properly reflected the separate criminality involved in each of his offences. There was no error in his Honour's conclusions as to that sentence.
Whether Harley Johan will avail himself of the leniency which Ellis DCJ has afforded him, so that he will be released when he becomes eligible for parole, in order that he can pursue rehabilitation, will depend on his conduct in custody. That is a matter within his control. Even if not released then, at most, he will serve a total sentence of 10 years and 6 months, for all six of his offences. Given the nature and seriousness of that offending, notwithstanding his youth and very deprived circumstances, that is not an overall sentence which is either unjust or unreasonable.