McDowall v R

Court of Criminal Appeal (NSW)|2019-02-11|Before: Hoeben CJ, Schmidt J, Adamson J

Solicitors: Sydney Criminal Lawyers (Applicant) Director of Public Prosecutions (NSW) (Crown) File Number(s): 2016/41550; 2015/365445 Decision under appeal Court or tribunal: Sydney District Court Jurisdiction: Criminal Date of Decision: 25 August 2017 Before: Frearson SC DCJ File Number(s): 2016/41550; 2015/365445

Judgment

HOEBEN CJ at CL: I agree with Adamson J and the orders which she proposes.
SCHMIDT J: I also agree with Adamson J.
ADAMSON J: The applicant, Kane McDowall, seeks leave to appeal against the aggregate sentence imposed on him by Frearson SC DCJ on 25 August 2017. Leave is sought on the following three grounds: "1. His Honour erred in failing to make a finding of objective seriousness in relation to the offence of assault with intent to taking a motor vehicle contrary to s 154C Crimes Act 1900. 2. The disparity between the sentence imposed on the applicant and co-offender Timothy Clynch gives rise to a justifiable sense of grievance by the applicant. 3. The sentence is manifestly excessive."

As can be seen from the table, the applicant and the co-offender were charged with many of the same offences. The differences between them were: 1. The applicant was sentenced for possess prohibited firearm but the co-offender was not charged with this offence; 2. The applicant was charged with, and pleaded guilty to, aggravated taking of a motor vehicle with assault (s 154C(2) of the Crimes Act 1900 (NSW)), whereas the co-offender was charged with, and pleaded guilty to, the non-aggravated form of the offence (s 154C(1) of the Crimes Act); and 3. The co-offender also stood to be sentenced for two counts of police pursuit and the applicant also stood to be sentenced for two counts of resist officer in the execution of duty.

The facts

The narrative set out below is taken from the agreed facts which were tendered on sentence.

The period between 4pm on 9 December 2015 and 9am on 10 December 2015

Sequence 13: aggravated break enter and steal at Murrumbateman

The applicant and the co-offender forced entry into a house and several sheds at a rural property in Murrumbateman. They stole items which included hand power tools and assorted calibres of ammunition.

Sequence 14: aggravated break enter and steal at Gundaroo

Some time after 8pm on 9 December 2015, the applicant and the co-offender forced entry into the rear door of the IGA Friendly Grocer Store at Gundaroo. They stole a cigarette machine, a cash register, a filing cabinet and one vodka Cruiser (valued at $6).

Sequence 15: aggravated break enter and steal at Bailey's Garage, Gunning

Between 5am and 5.35am on 10 December 2015, the offenders broke into Bailey's Garage, a mechanic workshop, by smashing the front glass door, which caused the applicant to sustain a large laceration to his lower leg. A cash register drawer containing $500 cash was stolen.

Sequence 16: aggravated break enter and steal at the Metro Service Station, Gunning

At about 5am on 10 December 2015, the offenders attended the Metro Service Station at Gunning and forced entry into two shipping containers at the rear of the premises. They stole a pair of bolt cutters, a blower vac and a number of security cameras which were stored there.

Offences committed on 12 December 2015

When the offenders were taken into custody on 15 December 2015 (see below), investigations were already underway into a report that the BP Service Station at Jugiong had been broken into on 12 December 2015.

Sequence 16: aggravated break enter and steal at Jugiong

The owner lived a short distance from the service station. When he attended the premises at about 8pm on 12 December 2015, he found them to be intact. Between 10 and 11pm that evening, the owner's wife heard banging and crashing from the direction of the service station. At about 11pm, a witness saw two males in a grey four-wheel drive utility which was stopped out the front of the service station. The witness also observed that the lights were on in the service station. As the witness passed, the lights went off. When the owner attended the premises the following morning at 9am he discovered that they had been broken into. A cigarette stand containing various brands had been stolen with packets of batteries, mobile phone chargers, energy drinks, Milky Ways and other items. Along the route taken by the offenders when they were evading police (see below), police found a number of items including Milky Ways, paperwork in the name of the owner of the BP Service Station at Jugiong and items in the name of Tyler. At the time of their arrest, the co-offender had in his possession cards in the name of Tyler.

Sequence 15: aggravated break enter and steal at Gundagai

At about 1.50am on 13 December 2015 an owner of the Dog on the Tucker Box Cafe in Gundagai, who resided next to the café, was woken by the sound of dogs barking. She saw a torchlight moving inside the cafe premises and phoned the co-owner to confirm that he was not there before ringing the police. She heard banging and crashing from within the premises and observed a Land Rover Defender with ACT plates parked in front of the cafe. A short time later police highway patrol arrived. Senior Constable Fiddes entered the premises at the front and confronted the two offenders at the rear of the premises. When he attempted to arrest them they resisted. A struggle took place before they fled the premises which resulted in the offenders dropping a number of items including torches, a face mask, a beanie, the applicant's wallet, a live .0410 gauge shotgun cartridge, cash and a small amount of cannabis.
Examination of the café indicated that entry had been gained by jemmying the front security screen door. The premises had been ransacked and a coin pressing machine and a number of soft drinks were stolen. A milk crate was located and was loaded with a number of items from the cafe including a medical kit. A large silver-coloured spanner and a jemmy bar, neither of which belonged at the premises, were found.

Sequence 17: discharge firearm with intent to resist arrest at Gundagai

Police chased the offenders from the café to the utility vehicle. Senior Constable Fiddes smashed one of the windows of the vehicle by striking it with his torch. The vehicle accelerated away from the police, travelling south down Annie Pyres Drive towards the Hume Highway. The co-offender was the driver and the applicant was the passenger. The two officers returned to their vehicle and drove after the offenders. As the utility continued south on the Hume Highway, a shot was fired from the utility in the direction of the highway patrol vehicle containing the officers. The police continued to follow the utility into the township of Gundagai.

Sequence 18: discharge firearm with intent to resist arrest at Binalong

At about 3.40am when police sighted the utility again on Burley Griffin Way heading back to the Hume Highway, they began another pursuit. Further shots were fired from the utility in the direction of police. Police used road spikes on the Hume Highway which caused the front tyres of the utility to go down. The utility continued north along the Hume Highway. In the Binalong area a further shot was fired towards the police, causing police to drop back from the utility. Some of the pellets hit the police vehicle. Police continued to follow the utility, which was travelling on deflated tyres. The utility left the Hume Highway and entered the Yass Service Centre.

Sequence 13: aggravated taking motor vehicle with assault

The two offenders got out of the utility and approached a silver Ford Falcon sedan parked out the front of the Caltex Petrol Station. At the time the vehicle was occupied by the owner Shane Hinchcliff and his 14-year old nephew. The applicant approached Mr Hinchcliff, armed with a shortened 20-gauge shotgun, and yelled, "Get the fuck out of the car or I'll kill you". Mr Hinchcliff put his hands in the air saying, "Okay, okay, it's no drama" and began to get out of the vehicle. The applicant then pulled him from the vehicle and forced his arm into Mr Hinchcliff's back, causing a graze and bruising to the skin. At the same time, the co-offender approached the 14-year old from the passenger side and yelled, "Get the fuck out. Get the fuck out." The child saw something in the hands of the co-offender and assumed it was a firearm because of the one he had seen pointed at his uncle. The child got out of the vehicle and ran away. Around this time, police arrived at the petrol station. The applicant got into the Ford Falcon. Police approached the offenders with their firearms drawn and fired two rounds, although no one was hit. The applicant and the co-offender were arrested.

Sequence 7: possess unauthorised firearm

Police located the firearm used in the offences in the Ford Falcon sedan which was found to be a 20-gauge standard single shot. The firearm barrel had been sawn off to shorten it and it had a wooden stock. The firearm had been stolen during a break and enter offence at Gundaroo on 6 December 2015.

Further investigations

An examination of the police vehicle showed lead consistent with lead pellets having being fired at the vehicle during the police pursuit. The near side bumper and windscreen pillar of the police vehicle were also impacted.
Investigations revealed that the utility had been stolen on 7 December 2015 from Pambula. The number plates on the front did not belong to the vehicle. Also located in the utility were a number of unopened packets of batteries, iPhone chargers, cigarettes, energy drinks, Milky Ways, chocolate bars and cigarette lighters.

The proceedings on sentence

The sentence hearing of the applicant and the co-offender took place on 10 August 2017. The Crown tendered the court attendance notices and the facts, which were agreed, the applicant's criminal and custodial histories, a DVD of the police pursuit and six photographs, including photographs of the gun. The applicant tendered a letter to the Court which he had written, references and a psychological report dated 17 May 2017 by Alison Cullen, forensic psychologist. The co-offender tendered three references and a report of a psychologist, Jason Borkowski. No oral evidence was adduced.

The remarks on sentence

The sentencing judge noted that both offenders were entitled to a 25% discount on sentence by reason of their pleas of guilty. His Honour described the offending conduct as a "drug-fuelled rampage of crime, replete with irresponsibility and, on some occasions, considerable danger." After setting out the facts, his Honour, when addressing sequences 13, 14, 15 and 16 on 9-10 December 2015, said: "[T]hey are just the run of the mill examples of this type of offence and I do not find them to be particularly sophisticated. They occurred whilst the offenders were drug affected and obviously looking to sustain themselves one way or the other by doing these busts. They are all below the mid-range, closer to the mid than low. I do not find any reason to distinguish between the offenders in what they actually did; they are equally culpable. Mr McDowall was in breach of a bond, so that is aggravating in terms of the sentence but not objective gravity."
The sentencing judge set out the facts in detail, saying "one has to read the facts to glean just how serious some of the offences are". Of the assault with intent to take the motor vehicle (for which the applicant was sentenced to the aggravated form of the offence), the sentencing judge said: "[I]t was quite horrific physical and verbal abuse, first to the man and then abuse of the child. A frightening scene replete with aggression and clearly terrifying for the innocent victims involved. A man just going about his own business and a young child."
After addressing the police pursuit matters (for which the co-offender, but not the applicant, was to be sentenced) his Honour addressed the two counts of discharge with intent to prevent apprehension (sequences 17 and 18 on 13 December 2015) and said: "I do take into account, as I said previously, more shots were fired in the second pursuit than the first. And I take into account that Mr Clynch was actually the driver. I take into account that the shots actually hit the police vehicle. The occupants were put at grave risk of injury. I do consider Mr McDowall to be more culpable in relation to these matters; he was the actual shooter. I have seen the video and it is quite terrifying. The first of those two matters is a mid-range offence and the second is above the mid-range and considerably so. That description applies to both offenders even though I consider Mr McDowall to be more responsible. True it is a joint enterprise matter but even so, I take into account who did what in relation to that matter.
The sentencing judge referred to the possession of the unauthorised prohibited firearm (for which the applicant alone was to be sentenced) and said: "I take into account the nature of the firearm, the duration of the possession and the fact that it was possession for a criminal purpose. It is an offence considerably above the mid-range."
The sentencing judge compared the criminal histories of the offenders and noted that they both had criminal histories which deprived them of leniency and noted that the applicant was subject to a bond at the time of the offending, which was an aggravating factor on sentence: s 21A(2)(j) of the Act. His Honour summarised the subjective material in relation to each offender. The sentencing judge referred to the co-offender's childhood and adolescence and noted the following history of substance abuse: "The report does set out in very comprehensive detail [the co-offender's] substance abuse history; cannabis from 13-14; alcohol from 14; cannabis became daily at 18 and then he used to consume alcohol as well. The report makes reference to an attempt to overcome the problems at the Ted Noffs Rehabilitation Centre in Canberra. He did manage to remain abstinent for a number of years, two or three but he was introduced to ice by a work colleague at 21 and that led to a rapid decline. As to the current offences, it is pointed out that there was a period of abstinence until he lapsed into ice use. He commenced using ice on a daily basis and had financial problems because of his expensive habit. He unpaid [sic] rent and was homeless. He met [the applicant] one month before the offences and [the applicant] was a drug user and he stayed with the [the applicant] so the drug habit could be financed."
The sentencing judge referred to the co-offender's background as "considerably disadvantaged", accepted that he was remorseful but considered his prospects to be guarded and did not conclude that the co-offender was unlikely to re-offend.
His Honour turned to the applicant's subjective circumstances and noted the report which chronicled his history "in enormous detail". The applicant identified as indigenous through his father. His Honour said of the applicant's "extremely traumatic childhood" which comprised "physical, mental and psychological abuse perpetrated by his father towards himself, his mother and half-sister". When the applicant was five years old, his father went to gaol and his mother turned to alcohol which caused her to become abusive and act "like she hated [the applicant]". He was bullied at school. He spent three separate periods spent in juvenile detention. He did not learn to read at school. He has been in a seven-year relationship with his partner, Sarah, with whom he had a five-year old son. His Honour summarised the applicant's drug and alcohol history and mental illnesses as follows: "He resorted to marijuana at the age of 10; 'it just seemed normal.' His drugs of choice were LSD, ice and alcohol for about nine years. He got off LSD and methamphetamine at nineteen, he said, 'After watching it destroy my life', and he noted his mental health was declining. About one month prior to his arrest his use of marijuana increased and he relapsed into methamphetamine smoking up to 3.5 grams a day as well as taking LSD. This all coincided with his mother's terminal illness. He had a period of abstinence from drugs in the four years following the birth of his son. He wants to go to rehabilitation. He said he has struggled with gambling. He did report that in his childhood he had been diagnosed with anxiety, ADHD and schizophrenia in Year 2. He added that he was also diagnosed with bipolar. Counsel submitted on his behalf that I can at least glean that that he has a level of mental instability. That is somewhat consistent with his affect. His speech was monotone and his affect was flat. From time to time he does report hearing voices. The testing revealed that at the time of the testing he had severe depression, anxiety and stress. As to the offence the offender said he doesn't actually know about what happened in terms of the details; basically he was off his face on drugs. It is contended he is remorseful and he wants to do rehab. The report notes there appears to be absence of offending behaviour from the age of 19 until the present and suggests he has made considerable efforts to change his lifestyle."
His Honour continued: "I do accept that he has mental difficulties. I accept from that report that he has a very considerably disadvantaged background, a traumatic childhood characterised by physical and mental abuse. I do accept that he has significant mental instability. I have taken all of that into account in considering the gravity of these matters and I do accept here there is some amelioration of the objective gravity by reason of his functioning. But his functioning is not such as to preclude a very substantial appreciation that he was doing the wrong thing, as well as the consequences of doing the wrong thing in the way he did it, regardless of whether he can remember. Of course there are countervailing considerations here because the fact that he is unstable does make him more prone to reoffending. He was actually subject to psychiatric supervision at the time of the offences. There is some reduction in moral culpability, but having said that there is still a requirement for all of the purposes of sentencing, and as I said, there are countervailing considerations."
His Honour accepted that the applicant's background was "considerably disadvantaged" but referred to the applicant's possession of a shotgun as being a factor which implied a level of planning. The sentencing judge referred to the risk of serious injury posed by the shooting at police and the need to protect the community. When addressing the purposes of sentencing, his Honour said: "This is a situation where obviously there is some tension in the purposes of sentencing here that I consider point in different directions. But I cannot permit the subjective considerations to overwhelm the gravity of what happened here. I am required to accommodate all of the objective and subjective matters."

Ground 1: alleged failure to assess objective seriousness for the offence of assault with intent to take motor vehicle in circumstances of aggravation

The applicant submitted that no finding of the objective seriousness of the offence of aggravated take motor vehicle with assault (sequence 13 on 13 December 2015) had been made. It was common ground that the assessment of objective seriousness was an integral part of the sentencing process. The Crown submitted that the sentencing judge had made such an assessment in the following passage in the sentencing judgment (part of which is extracted above): "As to the assault with intent to take the motor vehicle for both the offenders, I appreciate Mr McDowall has the aggravated form of the offence and I bear that in mind, and Mr Clynch cannot be sentenced for that aggravated offence. Mr McDowall was armed but that is an element of the offence, so it can't be double counted. I take into account what happened; it was quite horrific physical and verbal abuse, first to the man and then abuse of the child. A frightening scene replete with aggression and clearly terrifying for the innocent victims involved. A man just going about his own business and a young child."
The question is whether this passage fulfils the judicial obligation to assess objective seriousness for the purposes of sentencing. There is a statutory requirement to give reasons in s 54B(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act), which applies to the offence of take and drive motor vehicle with assault because it is listed in the table in Division 1A of Part 4 of the Act. As such, a standard non-parole period has been prescribed, as well as a maximum penalty.
In Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39, the High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) said at [29] of the statutory requirement to give reasons in s 54B(4) of the Act: "A central purpose of Div 1A is to require sentencing judges to state fully the reasons for arriving at the sentence imposed. The reference in s 54B(4) to 'mak[ing] a record of its reasons for increasing or reducing the standard non-parole period' is not to be understood as suggesting either the need to attribute particular mathematical values to matters regarded as significant to the formation of a sentence that differs from the standard non-parole period, or the need to classify the objective seriousness of the offending. It does require the judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that is reached about the appropriate sentence to be imposed. The obligation applies in sentencing for all Div 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low, middle or high range of objective seriousness for such offences." [Emphasis added.]
This Court, by reference to this passage has observed that there is no obligation to "classify" the objective seriousness by reference to some scale: Sharma v R [2017] NSWCCA 85 at [63] (RA Hulme J, Beazley P and Walton J agreeing). The imposition of any such obligation would not assist in the transparency of the reasons for sentence in any event. As Basten JA (Beazley P and Wilson J agreeing) observed in Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [82]: "[A]lthough it is conventional practice to divide objective seriousness into low, mid and high ranges (sometimes with further detail, such as "near the top of the low range") there is no clear delineation of the scope of each range and it cannot be assumed that all judges apply the terminology uniformly. Accordingly, there is a difficulty in drawing firm conclusions from the penalties with respect to each range."
The requirement to give reasons for an assessment of objective seriousness cannot be satisfied by the use of words such as "mid-range" or "high" or "low", without more, although these words may often be used in the context of an evaluative description of the offending conduct which fulfils the requirements enunciated in Muldrock v The Queen. What is required is that the judge "identify fully the facts, matters and circumstances" which bear on the sentence imposed, including those which go to objective seriousness.
In the passage extracted above, the sentencing judge described the offence and its effect on the victims in evaluative terms which fulfilled the requirement to assess objective seriousness. As a matter of substance, the sentencing judge did identify the facts (by setting out a detailed narrative which is summarised above), matters and circumstances (which are set out in the extracted passage) for the sentence imposed for this offence by reference to matters germane to objective seriousness. This ground has not been made out.

Ground 3: the sentence is manifestly excessive

The ground of manifest excess is a challenge to the result of the sentence. It is not necessary for the applicant to identify any particular error in the process that led to the result but merely to persuade the Court that the result was manifestly excessive. The applicant must establish that the sentence imposed was unreasonable or plainly unjust, having regard to the principles that there is no single "correct" sentence and that judges at first instance are to be allowed as much flexibility in sentencing as the application of principle and consistency of approach allow: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J).
In support of the third ground, the applicant contended, first, that there was no indication that the sentencing judge considered the degree of accumulation which produced a lengthy period of imprisonment; and, secondly, that the sentence is "crushing" having regard to his age and background.
As to the first contention, the sentencing judge specifically referred to accumulation in the reasons as follows: "I am required to take into account Pearce. Separate criminality has to be accommodated one way or the other. It is ordinarily accommodated by partial accumulation. I have to consider the discrete sentences, accumulation and totality. I have to consider the objective and subjective matters and the purposes of the sentencing in the one step process."
The sentencing judge's reference to Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 is a reference to the principle of totality. After Pearce v The Queen, s 53A was inserted into the Act to permit aggregate sentences to be imposed, thereby avoiding the need to impose a sentence for each individual offence and the corresponding requirement to specify commencement and expiry dates for each such sentence. In order to ascertain the degree of concurrency and accumulation for an aggregate sentence, the sum of the indicative sentences may be compared with the aggregate sentence. In the present case, the sum of the indicative sentences is 35 years. The aggregate sentence imposed was 14 years. It can be seen from this comparison that there was a substantial degree of concurrency, as well as some accumulation.
I turn now to the submission that the sentence is "crushing", having regard to the applicant's age and background. The sentence was imposed just before the applicant turned 25. If the applicant is granted parole at the end of the non-parole period of 9 years he will be almost 34 when he is released. The sentence imposed has the effect that he will spend a significant time in what might be regarded as the prime of life in custody.
Mr Pararajasingham, who appeared on behalf of the applicant, relied on the following passage from R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [17] (Spigelman CJ, Whealy and Howie JJ) in support of the submission that the sentence imposed was crushing: "[A]n 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."
He submitted that the present case was not one which disentitled the applicant to the "element of mercy" referred to in the above passage. Mr Pararajasingham submitted that the applicant's "dysfunctional and tumultuous upbringing and the explicit link between that background and his offending behaviours" made applicable the principles referred to in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. He accepted that the following passage from Bugmy v The Queen at [44] was reflected in the sentencing judge's reference to "countervailing considerations" in the sentencing judgment: "Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender." [Footnotes omitted.]
The passage relied on by the applicant from R v MAK set out above, appears in a longer consideration of the totality principle in the following passage: "[15] . . . Whenever the Court sentences an offender for multiple offences, including when there are different victims . . . it is necessary for the judge to ensure that the aggregation of all of the sentences is a 'just and appropriate measure of the total criminality involved': Postiglione v The Queen (1997) 189 CLR 295 at 307-308; 94 A Crim R 397 at 406 per McHugh J. The need to maintain an appropriate relationship between the totality of the criminality involved in a series of offences and the totality of the sentences to be imposed for those offences arises for at least two reasons. [16] The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence. . . . [17] The second matter that is considered under the totality principle is the proposition 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. [18] A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. . ." [Emphasis added to indicate the context of the passage relied upon by the applicant.]
Although the offending occurred over a few days, it was very serious. The acts of the applicant and co-offender posed a substantial risk to the general community, both in the manner of the driving to avoid police and the use of the firearm to shoot at police and threaten members of the community. As referred to above, there was a substantial measure of concurrency. The indicative sentences were relatively short compared with the maximum penalties and the parole periods indicated were significantly below the standard non-parole periods prescribed for those offences. The sentencing judge was obliged to take into account all objective and subjective factors in determining the sentence to be imposed.
His Honour was also required to have regard to the purposes of sentencing which include: to ensure that the applicant is adequately punished for the offending; specific and general deterrence; protection of the community; rehabilitation of the applicant; to make the applicant accountable for his actions; to denounce the conduct of the applicant; and to recognise the harm done to the community by the offending conduct: s 3A of the Act.
Although the sentence was lengthy from the applicant's point of view and may be regarded by him as "crushing" because of the proportion its length and the non-parole period bear to his age when taken into custody and upon his earliest release day, the length of the indicative sentences and the substantial degree of concurrency would appear to contain a degree of mercy.
I am not persuaded that the sentence imposed is manifestly excessive. Ground 3 has not been made out.

Ground 2: alleged disparity between the sentence imposed on the applicant and the sentence imposed on the co-offender

As referred to above, the applicant's sentence was for a term of imprisonment of 14 years with a non-parole period of 9 years. The co-offender's sentence was for a term of imprisonment of 12 years with a non-parole period of 7 years and 8 months. The table at the commencement of these reasons sets out the indicative sentences for each offence incorporated within the aggregate for both the applicant and the co-offender.
Some observations may be made from the comparison. First, with the exception of the two discharge firearm with intent to resist arrest offences, for each offence with which the applicant and his co-offender were both charged, the indicative sentence is identical. The differences in the aggregate sentences can be accounted for by the circumstance that the applicant received a greater sentence for take motor vehicle with assault since he was charged with the aggravated version of that offence (sequence 13 on 13 December 2015), whereas the co-offender was charged with the non-aggravated version. Although the co-offender was charged with two counts of police pursuit and the applicant was not, the maximum penalty for a first offence of police pursuit was only 3 years. The sentences imposed on the co-offender for these two offences were 22 months' imprisonment and 2 years and 3 months' imprisonment respectively. By contrast, the principal additional offence for which the applicant was sentenced was possess unauthorised prohibited firearm which carried a maximum penalty of 14 years with a standard non-parole period of 4 years, for which the applicant was sentenced to a term of 3 years 6 months with a non-parole period of 2 years and 4 months.
For the two offences of discharge firearm with intent to resist arrest, the sentences imposed on the applicant were greater, having regard to his role in actually shooting at police whereas the co-offender was driving the vehicle at the time.
Mr Pararajasingham contended that the co-offender, by driving the vehicle "contributed equally, if not more, to the overall criminal objective of evading arrest" and that the indicative sentences for these offences revealed error which contributed to the disparity.
It does not follow from the principle that co-offenders engaged in a joint criminal enterprise are equally guilty for offences committed jointly (R v Tangye (1997) 92 A Crim R 545 (Hunt CJ at CL, McInerney J and Sully JJ agreeing), citing McAuliffe v The Queen (1995) 183 CLR 108 at 113-116; [1995] HCA 37) that they are equally culpable for the purposes of sentencing. It is a matter for the sentencing judge to determine how their relative moral culpability (as opposed to legal liability, which has, by definition, been established) should be reflected in their respective sentences. As Dawson J said in Lowe v The Queen (1984) 154 CLR 606 at 623; [1984] HCA 46: "Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for." [Emphasis added.]
It was, in my view, open to the sentencing judge to regard the applicant's culpability for the two discharge firearm with intent to resist arrest offences as greater than the co-offender's. His Honour was entitled to place weight on the circumstance that the applicant was the one who was firing at police and regard the co-offender's role in driving the vehicle as lesser.
Mr Pararajasingham also raised in support of ground 2 the alleged "artificiality" in the charging of the applicant with aggravated assault with intent to take a motor vehicle without consent when the co-offender was charged with the non-aggravated form of the offence. He relied on the following passage from the sentencing judgment in support of this submission: "Mr McDowall [the applicant] faces a charge of aggravated assault with intent to take a motor vehicle without consent, the aggravation is being armed, which is contrary to 154C(2). That offence attracts a maximum sentence of 14 years imprisonment and a standard non-parole of five years. Mr Clynch [the co-offender] faces a charge of assault with intent which is the non-aggravated version. It is contrary to 154C(1)(a). It attracts a maximum sentence of 10 years with a standard non-parole period of three years. They are charged differently but I note that they were both part of the one transaction in which one of them was armed and it is a little artificial, in the case of Mr Clynch, to disregard the fact he was in company and that his confederate was armed. Nevertheless that is what I am required to do."
In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 the plurality (French CJ, Crennan and Kiefel JJ) referred at [30] to "the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions". In substance, the sentencing judge in the passage set out above was saying that the differential charging of the offenders with different offences (the applicant under s 154C(2) and the co-offender under s 154C(1)) was "a little artificial" but that his Honour was required to take into account in sentencing the offenders that they had been, in that instance, charged with, and stood to be sentenced for, different offences. I discern no error in the sentencing judge's approach, which accorded with what the High Court (French CJ, Hayne, Kiefel, Bell and Keane JJ) said in Elias v The Queen; Issa v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [35]: "Prosecutors are subject to a duty of fairness in the exercise of their important public functions. . . After an offender has been convicted of an offence it risks compromising the impartiality and independence of the court to require that it sentenced by reference to an offence of which the offender has not been convicted but which it considers the prosecution should have charged."
The applicant's allegation of disparity was also founded on the differences between their subjective circumstances. Mr Pararajasingham contended that the sentencing judge distinguished between the applicant's and the co-offender's subjective circumstances in a way that appeared to recognise that the applicant's traumatic and abusive childhood may have rendered him more susceptible to substance abuse and using violence to obtain drugs. However, Mr Pararajasingham submitted that, notwithstanding this recognition, the sentencing judge did not ameliorate the sentence imposed on the applicant to give such factors full weight.
It can reasonably be inferred from the identical sentences imposed on the applicant and the co-offender, when read with the reasons, that the sentencing judge regarded the respective subjective circumstances of the applicant and the co-offender as effectively neutral as between them. While the sentencing judge noted that the applicant was on a bond at the time of the offending which aggravated the sentence, this plainly did not have the effect of increasing the applicant's indicative sentence for the offences for which the co-offender was also charged. I consider that a fair reading of the sentencing judgment indicates that the sentencing judge considered the applicant's subjective circumstances (including mental health issues) made him less culpable but more dangerous. Thus, there was less reason to punish the applicant (s 3A(a) of the Act) or make him accountable for his offences (s 3A(e)) but a greater need to protect the community from him (s 3A(c)). I consider this to be evident from the passage in the sentencing judgement (extracted above) in which his Honour referred to "countervailing considerations".
His Honour's approach was consistent with that endorsed by the High Court in the following passage from Veen v The Queen (No 2) (1988) 164 CLR 465 at 476-477 (Mason CJ, Brennan, Dawson and Toohey JJ); [1988] HCA 14: "[S]entencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions. And so a mental abnormality which makes an offender a danger to society when he is at large but which diminishes his moral culpability for a particular crime is a factor which has two countervailing effects: one which tends towards a longer custodial sentence, the other towards a shorter. These effects may balance out, but consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality." [Emphasis added.]
The sentencing judge's detailed and carefully reasoned judgment reflected the challenges of imposing aggregate sentences on two co-offenders with different subjective circumstances and some different (although much of the same) involvement in a series of offences. I discern no error in the respective sentences of the applicant and his co-offender which could rationally give rise to a justifiable sense of grievance. The sentences imposed were open to his Honour and the reasons adequately explain why they were different. Ground 2 has not been made out.

Proposed orders

I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.

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Sequ-ence Offence Section of Crimes Act 1900(NSW)

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