Lee v R

Agreed Facts

1. Tendered before the sentencing judge was an Agreed Statement of Facts. The following is taken from that statement.
2. On the afternoon of Saturday, 23 June 2018, the applicant's co-offender, who was a juvenile ("BC"), contacted one of the victims, Cody Eslick ("Eslick"). It was arranged for Eslick to sell BC some "leftover MDMA tablets that Eslick had got at a recent party". They agreed to meet at the Erina Fair Shopping Centre in Gosford. Eslick then contacted a friend, Kyle Harrison ("Kyle"), to drive him to the shopping centre. Kyle drove Eslick, and Kyle's sister, Tui-Carol Harrison ("Tui-Carol") to the shopping centre.
3. When they arrived, Kyle stopped the vehicle. The three victims sat in the car waiting for BC to arrive. At some point, BC, the applicant, and two co‑accused, MK and TC, approached and surrounded the vehicle.
4. MK opened the front passenger side door of the vehicle and unzipped his jacket to reveal he was holding a wooden baseball bat. He held the bat out towards Eslick and said "[t]his is a robbery, give us all your stuff". The agreed facts record that Eslick was "scared" and handed over his mobile phone, his wallet containing cash, his driver's licence, various cards and the drugs he had been planning to sell.
5. The actions of the applicant in being present and assisting MK, BC and TC in robbing Eslick, constituted one of the offences under s 97(1) for which he was sentenced (known as "sequence 3").
6. At the time that MK produced the bat and threatened Eslick, the applicant opened the rear driver's side door and sat in the rear driver's side passenger seat next to Tui-Carol. Kyle was in the driver's seat. The applicant pointed a black coloured knife at his neck. At some point Eslick told MK that there was no more property to hand over, at which time the applicant said to Kyle "I like your watch bro". Kyle responded "[i]s this a joke?" and the applicant replied "[t]his is serious, give me your watch and hat". This conduct of the applicant constituted the other offence under s 97(1) of robbery in company for which he was sentenced (known as "sequence 4").
7. Next, the applicant turned his knife towards Tui-Carol. He held the knife about 20cm from her body. He said to her "[g]ive me your stuff". The agreed facts record that Tui-Carol was "very scared and in shock because [the applicant] had a knife and was sitting right next to her", but she eventually replied "[n]o". One of the co-accused interjected and said to Tui-Carol "[d]o you really want to get stabbed just for a piece of jewellery?". The actions of the applicant in pointing a knife at Tui-Carol and demanding property from her constituted an offence under s 97(1) (known as "sequence 2"). It was this offence that was taken into account on the Form 1 that was associated with sequence 3 concerning Eslick.
8. After this, MK then demanded Kyle's hat. According to the agreed facts, Kyle "fearing for his and his sister's safety" handed over his hat and his watch to the applicant who was still seated behind him. The applicant and the co-offenders then absconded. Police were able to identify them using CCTV camera footage taken the following day at the same shopping centre where BC was seen wearing the distinctive cap that they had stolen from Kyle.
9. On 27 June 2018, police arrested the applicant at his home. The agreed facts record that he "made partial admissions". He agreed that they intended to rob Eslick and that the decision to take other property was a "last minute" one. He denied being armed with a knife but conceded that a baseball bat was produced in the confrontation.

The Sentencing Judgment

1. After setting out the facts and circumstances surrounding the applicant's offences, the sentencing judge addressed their objective seriousness. Ultimately, his Honour found that both robbery offences fell at the mid-range of objective seriousness of offences of that kind. His Honour also referred to the guideline judgment in R v Henry (1999) 46 NSWLR 346 ("Henry") which proffered a sentencing guideline of 4 to 5 years for the full term of an offence under s 97(1) that had the characteristics of: a young offender with little or no criminal history; the use of a weapon like a knife capable of killing or inflicting serious injury; limited planning; limited if any actual violence but a real threat thereof; a victim in a vulnerable position such as a shopkeeper or a taxi driver; a small amount being taken, and a plea of guilty, "the significance of which is limited by a strong Crown case" (Henry at [162]-[165]). The sentencing judge considered that most of those criteria were applicable to this offending, albeit that the victims were not vulnerable "in the traditional sense", but were to some extent vulnerable by reason of being trapped in a car at the time the offences were committed.
2. Otherwise, I note eleven matters about the balance of the sentencing judgment.
3. First, his Honour addressed the applicant's subjective case. At the time of sentencing the applicant was 19 years old, having been 18 years and 2 months at the time of the offending. He left school at the end of year 10. He had worked for a brief period when he was aged 15 but had otherwise been unemployed since leaving school. The sentencing judge accepted that he had had a "dysfunctional childhood history", specifically that his mother had abused illicit drugs and suffered significant mental health issues which had resulted in him being removed from her care at the age of 12. It was also accepted that he had suffered "various forms of neglect, including lack of food at home and school, and dirty clothes" and had been the victim of violence within his home.
4. The sentencing judge referred to the applicant having been the subject of sexual abuse and having suffered "mental health difficulties and substance abuse" from the age of 16. On my reading of the sentencing judgment his Honour accepted those matters.
5. Second, having regard to some comments recorded in a sentencing assessment report which appeared to reveal that the applicant distinguished between robbing drug suppliers and the general public, the sentencing judge was "unable to make a positive finding of remorse" in the applicant's favour.
6. Third, the sentencing judge addressed the existence of any aggravating or mitigating factors concerning the applicant and the offending. It is only relevant to note that the sentencing judge found that, at the time of the offending, the applicant was "subject to four control orders from the Children's Court" and this was aggravating factor. In fact, at the time of his offending the applicant was not subject to any "control orders" made under s 33(1)(f) of the Children (Criminal Proceedings) Act 1987, but instead was subject to good behaviour bonds imposed under s 33(1)(b). Despite this slip, on this application, counsel for the applicant accepted that this was nevertheless an aggravating factor in that it meant that at the time the offence was committed, the applicant was subject to a form of conditional liberty (Sentencing Act, s 21A(2)(j)). The sentencing judge found that the only mitigating factor in this case was the offender's plea of guilty (Sentencing Act, s 21A(3)(k)).
7. Fourth, the sentencing judge noted that the applicant had a "significant criminal record", which included previous offences of dishonesty and violence committed whilst a juvenile. His Honour noted, correctly, that that record did not aggravate his offending but considered it disentitled him to a finding of good character and any leniency which might flow from that.
8. Fifth, the sentencing judge accepted that the applicant had a troubled childhood and adolescence. His Honour held that, having regard to the principles stated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27 ("Bugmy"), this warranted a reduction in the applicant's moral culpability and raised the need to give attention to his rehabilitation. In the applicant's case, the sentencing judge accepted that this justified a finding of special circumstances for the purposes of s 44(2) of the Sentencing Act. The sentencing judge also considered that the need to address the applicant's past drug addiction "contribute[s] towards a finding of special circumstances".
9. Sixth, the sentencing judge found the applicant's prospects of rehabilitation "can only be considered as guarded" and that his "risk of re-offending" is "moderate".
10. Seventh, the sentencing judge had regard to the applicant's youth and, by reason of that, his immaturity at the time of the commission of the offences.
11. Eighth, his Honour considered that in accordance with s 22 of the Sentencing Act the applicant was entitled to a discount of 25% to reflect his plea of guilty.
12. Ninth, the sentencing judge noted the necessity to consider parity with his three co‑offenders, but acknowledged that that was complicated by the fact that they were all minors and were thus sentenced under a different legislative regime. In fact, two of his co‑offenders received non‑custodial sentences from the Children's Court and another, BC, received a control order for a period of 10 months with a non‑parole period of 2 months.
13. Tenth, the sentencing judge noted the applicant had been in custody since he was arrested on 27 June 2018, but for the period from 28 July 2018 to 27 February 2019 he was serving sentences for other offences, specifically an offence of assault occasioning actual bodily harm committed on 6 May 2018, as well as an offence of destroying or damaging property and also domestic violence offences. For these latter offences the applicant had earlier been subject to a bond in the Children's Court but had later been called up for a breach and given a term of imprisonment by the Local Court. To allow for totality, the sentencing judge determined to fix the applicant's sentence to commence from 27 September 2018.
14. On this application, counsel for the applicant noted that there appeared to be some doubt about the power of the Local Court to impose a term of imprisonment for a breach of a bond imposed by the Children's Court when the applicant was a juvenile. It is not necessary to resolve any question about that because those sentences were only concurrent with the sentence for assault occasioning actual bodily harm and there is otherwise no basis for asserting error on the part of the sentencing judge in fixing the commencement date that his Honour did. In re‑sentencing the applicant this Court adopted the same date for the commencement of the sentence.
15. Eleventh, having determined to impose an aggregate sentence, the sentencing judge made express reference for the need to have regard to totality in considering questions of accumulation and concurrency.

The Appeal

1. Ground 1 contends that the aggregate sentence was manifestly excessive. The relevant principle governing a complaint that a sentence is manifestly excessive was stated in Hili v The Queen; Jones v The Queen 242 CLR 520; [2010] HCA 45 at [59] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) ("Hili"): "As was said in Dinsdale v The Queen [(2000) 202 CLR 321; [2000] HCA 54 at [6]], '[m]anifest inadequacy of sentence, like manifest excess, is a conclusion'. And, as the plurality pointed out … in Wong v The Queen [(2001) 207 CLR 584; [2001] HCA 64; at [58]; "Wong"], appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'. Rather, as the plurality went on to say … in Wong [at [58]], '[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons'. But, by its very nature, that is a conclusion that does not admit of lengthy exposition."
2. Further, with an aggregate sentence, although the indicative sentences specified in accordance with s 53A(2) of the Sentencing Act are not themselves amenable to appeal, they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CJ and Adamson J agreed and cases cited thereat; "JM"). Even if the indicative sentences are considered excessive, that does not necessarily mean that the aggregate sentence is excessive (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The corollary of that proposition is that, even if the indicative sentences are not excessive in their own right, then that does not preclude a conclusion that the aggregate sentence is excessive. In that regard, the principles concerning cumulation, concurrency and totality are still applicable to the sentencing exercise when an aggregate sentence is imposed (Beale v R [2015] NSWCCA 120 at [73]; "Beale"). The "potentials for accumulation" of the various notional sentences can be examined to determine whether the "aggregate sentence represents a sound exercise of sentencing discretion" (R v Brown [2012] NSWCCA 199 at [35] per Grove AJ; Beale at [73]), although the absence of any requirement to specify beginning and end dates for each notional sentence may make it more difficult to demonstrate a relevant error in applying those principles (Beale id; Martin v R [2014] NSWCCA 124 at [37]). The "principle", or even ultimate, "focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved" (JM at [40]).
3. In his written submissions, counsel for the applicant referred to the findings made by the sentencing judge concerning the circumstances of the offending and the applicant's subjective case. Neither counsel's written nor oral submissions expressly contended that the indicative sentences were excessive. As the above statements of principle make clear, to succeed on this ground that is not essential. Instead, the focus of counsel's submissions concerned the notional accumulation that could be discerned from comparing the aggregate sentence to the indicative sentences. Counsel contended that in effect the sentencing judge fixed one of the indicative sentences to commence two years after the other. It was further submitted that prior to the introduction of aggregate sentences such a sentence "would never … properly start" two years after the other when the two offences "basically occurred at the same time".
4. In his written submissions counsel for the Crown contended that the indicative sentences were consistent with Henry. He submitted that while there were a number of features common to each robbery offence that fall within the typical features of a case covered by Henry, these offences were aggravated by the fact that the applicant committed the offences while he was on conditional liberty. Counsel noted that in Henry the guideline sentence was a period of 4 to 5 years imprisonment allowing for a "late plea of guilty", which counsel contended was equivalent to a range of 3 years and 4 months to 4 years 2 months where a discount of 25% was allowed on account of an offender's plea of guilty. (This assumes that the late plea of guilty in Henry equated to a 10% reduction in the sentence.) As for the notional accumulation, the Crown noted (correctly) that the sentencing judge expressly referred to considerations of totality, submitted that it was appropriate that there be some degree of accumulation and noted the relative leniency that was afforded by reason of the finding of special circumstances.
5. In upholding the appeal I agreed with the contention of counsel for the applicant noted above. A comparison of each of the indicative sentences against the guideline stated in Henry yields a conclusion that they were high but not in themselves excessive. While a number of aspects of the offending and the applicant's case compared unfavourably to the typical case identified in Henry, such as the fact that he was on conditional liberty at the time of the offending, others warranted some amelioration of the guideline sentence stated in Henry, such as his background of extreme disadvantage sufficient to invoke Bugmy, the fact that he had only just turned 18 and the sentences imposed on his co-offenders even allowing for the different sentencing regimes that applied to them.
6. However, even allowing for the express and careful consideration that the sentencing judge gave to considerations of totality, I was satisfied the aggregate sentence imposed was excessive. Although an aggregate sentence was imposed, the fact that it only concerned two offences enables the extent of notional accumulation and consideration given to totality to be accurately assessed. Both robberies, as well as the robbery included on the Form 1, were committed within an instant of one another and were clearly part of the same criminal endeavour, namely the robbery of a perceived drug dealer. The entire incident, especially the directing of a knife near to the neck of one of the victims, was undeniably serious. As the Crown submitted, even though the robberies were committed effectively at the same time, the fact that there were multiple victims justified some notional accumulation. However, the "notional" commencement of one of the sentences two years after the other was an approach to sentencing that reflected an approach to totality more suitable to entirely separate offending than multiple robbery offences committed at the same time on the occupants of a car.
7. Notwithstanding the comprehensive nature of the sentencing judgment I was satisfied that the aggregate sentence was excessive. This conclusion required that the aggregate sentence be set aside and the sentencing discretion be re‑exercised (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37). The material tendered in this Court concerning the applicant's progress in custody revealed that he has been working diligently and acquiring some skills. This warrants a slightly more optimistic assessment of the applicant's prospects of re‑offending than that made by the sentencing judge.
8. Otherwise, in re-exercising the sentencing discretion, I adopted the sentencing judge's factual findings noted above, as well as the finding that special circumstances were made out. It appears that the sentencing judge specified the same indicative sentences for both offences even though sequence 3 was accompanied by a robbery on a Form 1, because sequence 4 involved the applicant personally threatening someone, whereas with sequence 3 the threat was made by one of his co-offenders. Nevertheless, I considered that a higher indicative sentence was warranted for that offence compared to sequence 4. The aggregate sentence and indicative sentences reflected these matters and the above analysis of totality.
9. FAGAN J: I agree with the reasons given by Beech-Jones J, which reflect my own reasons for having joined in the orders of the Court that were pronounced on 18 September 2020.

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