Nean v R

The offending

1. The sentencing judge found the facts concerning the offending from a statement of agreed facts. Those facts are set out below.
2. At the time of the offences, Daniel Lawson ("Daniel") lived in a caravan with his partner MO (aged 16), in the back yard of the house of his mother, Anne Douglas, in Quirindi. His brothers Nathan Douglas, Benjamin Douglas and DJ also lived at the property with his mother. Daniel's son, LT, also lived at the house.
3. At about 9pm on Sunday 11 September 2016 Daniel was in his caravan with MO and his friend Joshua Allen. The caravan door was open. Without warning the applicant entered the caravan.
4. At the time of the offences, Daniel had known the applicant for about 2 years. MO and Mr Allen also knew the applicant. Mrs Douglas, Ben Douglas and LT also knew the applicant.
5. Daniel told the applicant that he was not welcome and told him to leave. The applicant said, "What's this about you reckon I stole your car?"

Count 1: Robbery in Company (Daniel Lawson)

1. At that time another person, later identified as the co-offender Hampton, appeared with a screwdriver in his hand. Daniel noticed that the applicant had a knife in his hand. The applicant tried to hit Daniel but Daniel put his hand up to protect himself. The applicant said, "I heard you got 30 grand. I want it now". Daniel replied, "I don't have 30 grand". The applicant said, "Right, give me your jewellery". The applicant pushed Daniel onto the bed and grabbed the necklace that he was wearing and snapped it off. The applicant then said to Daniel, "Give me your rings". Daniel was scared so he took off his wedding ring, and a silver and gold ring and gave them to the applicant.
2. The applicant said, "You're fucking lying to me. If you don't give me the money now I'll stab [MO] and your unborn child". Daniel panicked and told the applicant that there was money in the house. Daniel hoped that his mother would see him being walked down to the house at knife point and call the police.
3. Daniel walked to the house and knocked on the front door. On the way to the house Hampton held the screwdriver to Daniel's ribs and nudged him along with it. Ben Douglas opened the door and Daniel said, "Mum they want your money". Daniel stumbled into the door as the applicant held a knife to his throat. They walked inside. The applicant was screaming, "Where's the money, where's the money? Give me the money". Just after he had opened the door, Benjamin Douglas was able to make his way down the hallway and out the back door and into the back yard where he called '000' on his mobile phone.

Count 2: Robbery in Company (Anne Douglas)

1. Mrs Douglas opened her purse and pulled out $65 which Hampton took. The applicant screamed at Daniel, "I didn't steal your car, you're a dog. I am going to just take it from ya". Hampton punched Daniel in the face, knocking him to the ground. The applicant picked Daniel up and dragged him to the dining room area.
2. The applicant was holding a knife to Daniel's chest and said, "If I find out you are fucking lying to me I'm gunna come back and kill your mother". Daniel passed out. When he woke up he saw the applicant's girlfriend, Samantha Hall, in the house. Daniel passed out again.
3. Mrs Douglas screamed at the applicant, "Don't hurt him, don't hurt him". Ms Hall said, "Back off old lady or you will get hurt". Hampton said, "Where did he go, where did he go? He has seen us", referring to Ben Douglas.
4. Ms Hall started screaming, "Phones, jewellery, iPads. I want it all". Hampton took Mrs Douglas up the hallway to look for Ben Douglas. Ms Hall said, "Come on, jewellery, iPads, phones". Mrs Douglas was able to run back down the hallway to check on Daniel and Ben Douglas. Hampton was waving the screwdriver around threatening the occupants of the house.

Count 3: Robbery in Company (DJ)

1. Ms Hall entered the bedroom of DJ (aged 17) and she asked for phones, laptops and iPads. DJ gave her an Apple iPhone 5, an Android smart phone and his laptop. Hampton then entered the bedroom and said, "Where is the jewellery?" DJ started to take his necklace off but Hampton said he did not want it and asked him where Mrs Douglas' bedroom was. Hampton and Ms Hall took DJ to that room, and they took a quantity of jewellery (part of Count 2).
2. Ms Hall left the room, and Hampton stayed with DJ. After about 5 minutes Ms Hall returned and took DJ back to his room and removed his necklace. DJ was shaking and Ms Hall told him, "You will be all right. Just don't tell anyone what you saw". Ms Hall gave DJ back his laptop.

Count 4: Robbery in Company (LT)

1. Hampton then went into the bedroom of LT (aged 16). Hampton put the screwdriver to LT's throat and pressed it to his neck. Hampton asked if he had a phone, and LT pulled out his Apple iPhone 5. Hampton pulled away the screwdriver. As LT was entering the password Hampton asked him what he was doing and pushed the screwdriver back into his neck. Hampton asked LT if he had any money, and LT said "No". Hampton asked what was in his school bag, and then he left taking the phone. Hampton told LT that they would be back in half an hour.
2. The sound of a car horn beeped and Ms Hall said, "Come on hurry up we got to go". The applicant said to Daniel, "If you call the cops, I will come back and shoot your mother in front of you".
3. The applicant demanded the keys to Daniel's Mitsubishi Lancer, and Daniel obliged. Daniel then heard his Lancer "tearing" out of the driveway. The applicant was driving the Lancer and Hampton sat in the passenger seat. This formed the basis for the offence on the Form 1 (steal motor vehicle) in respect of the applicant, and the offence on the Form 1 (be carried in conveyance) in respect of Hampton. The applicant drove away "revving the shit out of it". Another person was waiting in a blue Holden Commodore which also drove from the premises with the Mitsubishi Lancer.
4. Mrs Douglas called '000', and while doing that the police and ambulance arrived.
5. Daniel received injuries to his face, a bleeding nose, a swollen lip, and scratches and bruises to his upper arms, chest and back. The injuries were photographed by police. Daniel declined to go to hospital.
6. On 12 September 2016, police received a phone call concerning a blue Holden Commodore that had been left at the Willow Tree Truck Stop since the evening of 11 September 2016. Police made vehicle checks on the blue Commodore which revealed that the registration number and the plates did not match the vehicle. The owner was contacted.
7. Police attended the Willow Tree Truck Stop, but were unable to search the car as its doors were locked. In the vehicle, a number of items could be seen including a jewellery box tray containing items of jewellery. Photographs of the vehicle were taken and it was towed back to the holding yard where the vehicle was forensically examined.

Count 5: Police Pursuit

1. A short time later, on 12 September, the white Lancer sedan was seen in the Taminda industrial area at Tamworth. Police patrolled the area and were directed to the intersection of Calala Lane and Goonoo Goonoo Road where the stolen vehicle was parked with its lights off. Four occupants were inside. The vehicle sped off and a pursuit commenced. The Lancer maintained speeds in excess of 120 km/h in various 50 km/h zones. The vehicle also reached speeds of 160 km/h in areas variously signposted at 60 km/h and 100 km/h. When approximately 5km south of Currabubula the Lancer's engine seized and the vehicle came to a halt.
2. All four occupants were arrested and cautioned. They included the applicant, Hampton and Ms Hall. Hampton was occupying the front passenger seat. The applicant was occupying the driver's seat.
3. They were all strip searched. Located on the fourth person, Kathy Ekert, and Ms Hall were a number of rings, bracelets and necklaces. The police also found a flat-head screwdriver in the right pocket of the applicant's pants.
4. The vehicle was searched and items seized, including two screwdrivers, one being located under Hampton who denied that the screwdriver was his. A black handled knife was also found under the driver's side floor mat, along with a quantity of jewellery.
5. All occupants of the vehicle were taken to Tamworth Police Station, entered into custody and informed of their rights. All four declined to participate in a record of interview or a line up.

Remarks on Sentence (ROS)

1. His Honour noted that each offence charged against the applicant must be assessed independently, keeping in mind that they were not isolated instances of offending but occurred in the course of one criminal enterprise. His Honour said that this context necessarily tempered the degree of accumulation that would be reflected in the aggregate sentence.
2. In relation to count 1, his Honour found that the applicant was armed with a knife, that it was he who took a leading role in making demands of and threats to Daniel, the complainant in count 1, but that it was the co-offender Hampton who inflicted the physical violence upon Daniel. His Honour found that the value of the property taken from Daniel was ultimately small although not insignificant from a sentimental point of view. His Honour considered that the fact that it took place in Daniel's caravan and subsequently in the house of his mother, was an aggravating feature, as was the fact that a 16 year old child was present in the caravan with Mr Lawson. His Honour considered that the offence fell within the mid-range of objective seriousness.
3. In relation to count 2, his Honour noted that the complainant was Daniel's mother, that she had $65 taken from her and that, although she was obviously fearful that her son was going to be injured, there was a reduced level of personal violence directed at her. His Honour assessed the objective seriousness as being slightly below the mid-range.
4. In relation to count 3, his Honour found that the complainant was aged 17 years. His Honour said that although the co-offender Hampton was more intimately involved in count 3 than the applicant, his Honour did not propose to distinguish between either of them on the basis of the particular role that they played in relation to count 3. His Honour assessed the offence as being in the mid-range of seriousness.
5. In relation to count 4, his Honour noted that the complainant was aged 16 years. The offence involved a threat of violence to the victim because a screwdriver was placed to his throat and pressed on two occasions. The value of the property taken was small, but his Honour considered that this was a mid-range offence that occurred in the bedroom of the victim.
6. In relation to the Form 1 offence, his Honour assessed it as being in the mid-range.
7. His Honour accepted the applicant's expressions of remorse. He thought that the applicant's prospects of rehabilitation were limited. His Honour considered that although the applicant was not institutionalised, there was a real risk of his becoming so. His Honour thought that the applicant was more likely than not to reoffend. He found special circumstances because of his need for rehabilitation and the real risk of institutionalisation.
8. Other findings in the ROS will be dealt with when individual grounds are considered.

Ground 1: His Honour erred in his assessment of the time during which the applicant was in custody solely referable to the matters before him for sentence.

1. In his ROS, the sentencing judge said this: The starting date in the case of Mr Nean is complicated because he has spent some time in custody, some time on bail, some time in custody and some time serving a sentence I calculate that he has been in custody because of these matters, but not solely referable to these matters, for a total of 552 days Prima facie then his commencement date is October 25, 2016 On 26 October 2016 he was sentenced to nine months imprisonment to commence on 29 August 2016 and to expire on 28 May 2017 for possessing housebreaking implements and on 8 January 2018 he was dealt with for possessing goods suspected of being stolen. That two month sentence was to commence on 20 November 2017 and expire on 19 January 2018. Therefore, there are 11 months in custody, not solely referable to these offences that I am sentencing him for. I will take that into account in fixing a later starting date and I will also take into account the totality principle.
2. His Honour determined that the sentence was to commence on 25 March 2017, that is, approximately 13 months prior to the date of sentencing.
3. The applicant submitted that the fixed term of nine months' imprisonment imposed by the Local Court at Tamworth on 26 October 2016 was varied on appeal to the District Court at Tamworth on 29 November 2016. The District Court imposed a nine month sentence commencing 29 August 2016 with a non-parole period of six months expiring on 28 February 2017. The applicant submitted that the commencement date of that sentence (29 August 2016) took into account a two week period during which the applicant was bail refused, being 27 June 2016 to 11 July 2016.
4. The applicant submitted that the only other sentence served by the applicant during the period for which he was bail refused on the present offences was a two month fixed term that commenced on 20 November 2017 and expired on 19 January 2018. That was a sentence imposed at Tamworth Local Court in January 2018 for goods suspected of being stolen in the custody of another person.
5. The applicant submitted that his Honour's finding that he had spent 11 months in custody not solely referable to these offences was incorrect. The period was actually 7½ months, noting that it was only the non-parole period served that was not solely referable to the present matters, and noting that two weeks of that six month non-parole period predated the commission of the present offences. The applicant submitted that had he not been bail refused on the present matters, he would have been released to parole at the conclusion of his six month non-parole period.
6. The Crown submitted that the sentencing judge misapprehended, and as a consequence overstated, the length of time spent by the applicant in custody referable to other matters. The Crown said that his Honour's error occurred because he did not take into account the variation of the sentence by the District Court and did not take into account that 15 days of that sentence was spent in custody before custody commenced for the present offences. In that way, the applicant spent 7½ months in custody referable to other matters rather than the 11 months referred to by the sentencing judge.
7. However, the Crown pointed to the provisions of s 24(a), and s 47(2) and (3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and submitted that it was open to his Honour as a matter of discretion to set an earlier commencement date for any part of the 7½ months that the applicant spent serving sentences for other offences whilst also on remand for the present offences. The Crown noted that his Honour exercised his discretion favourably to the applicant but accepted that his Honour's choice of that date might have been impacted by the error his Honour made in relation to the number of days spent in custody not solely referable to the present offences.

Consideration

1. Taking into account the period in which the applicant was on bail (1.8.17 - 13.9.17), the sentencing judge was correct to conclude that, absent any time spent serving other sentences, the sentence should back date to 25 October 2016.
2. The judge thought 11 months was referable also to other sentences served. He was in error in two respects. He counted 9 months for the possess housebreaking implements sentence whereas he should only have counted 6 months. He was also in error in including 14 days referable to the sentence for another matter which pre-dated the applicant's arrest for the index offences (29.8.16 - 12.9.16). Accordingly, 7½ months was the correct period to take into account where the applicant was in custody for other sentences as well as being bail refused for the index offences.
3. Most generously to the applicant, completely subsuming the sentences for other matters, the sentence could have been back dated as far as 25 October 2016. Being least generous to the applicant, the sentence could have been back dated only to approximately 7 May 2017 (25 October 2016 + 7½ months).
4. It was ultimately a matter for discretion for the sentencing judge what date should be chosen for the commencement of the sentence. However, the two errors identified are likely to have impacted that choice. In those circumstances, I am satisfied that error is demonstrated. I would uphold this ground of appeal.

Ground 3: His Honour erred in his application of the Bugmy principles to the applicant's case.

Ground 4: His Honour erred in his assessment of the applicant's criminal antecedents

1. It is convenient to deal with these grounds together.
2. In his ROS his Honour said this: Alex Nean has a criminal history that is acknowledged to be aggravating. There are many offences of violence on the record of this man who is now 34 years of age, having been born [in] January 1984. They include armed with intent on 9 January 2012 dealt with in the Maitland Local Court on 2 July 2012 for which he was imprisoned for 18 months. He has assorted motor vehicle offences, including driving a vehicle recklessly or furiously. There are other offences for dishonesty. And he was on parole at the time of this offence. … He appears to have been out of custody periodically as an adult, the longest period being some 11 months.
3. His Honour then went on to discuss what was disclosed in a report from the psychologist Laura Durkin. Having done so his Honour then said: It must be said the background of Mr Nean is such as to invite recognition of the presence of those factors which are sometimes referred to as Bugmy factors and one could also come to a conclusion that to an extent his moral culpability for his offending through his teenage and adult life ought be regarded as moderated because of that upbringing. To that extent again one can see that there may be a reduced significance in the application of general deterrence to him. Of course, as Bugmy recognises whilst it may be that the events that shape one's life leave a lasting impression those matters can be overtaken by other factors when it comes to sentencing, including the need to protect the community.
4. His Honour referred to the applicant's prospects of rehabilitation and to the fact that there was a real risk of institutionalisation, justifying a finding of special circumstances. His Honour then went on to say: The tension between that and what I regard as the important need to protect the community from this individual by a sentence of appropriate length is obvious. That tension probably cannot be reconciled as opposed to simply being acknowledged and then acted upon as best as one can.
5. The applicant submitted that his Honour was in error in saying that the applicant was on parole at the time of the offence. His record shows that he was not. However, the applicant conceded that it was likely that he was on bail at the time of the offences whilst noting that no such submission had been made by the Crown at the sentence proceedings.
6. The applicant submitted that the sentencing judge's assessment of the applicant's criminal history as aggravating was erroneous. He did not serve a period of imprisonment until 21 December 2010 when he was aged almost 27 years. The applicant submitted that his Honour's statement that 11 months was the longest period that the applicant had been out of custody as an adult was not correct. The applicant also submitted that the robbery in company offences were substantially more serious than his previous offending, and that they represented the first time the applicant was sentenced at first instance in the District Court.
7. The applicant submitted that he had successfully completed the parole period for his most recent offence of violence and had demonstrated motivation to engage in drug and alcohol and anger management treatment. He had benefited from the methadone program in the past.
8. The applicant submitted that his Honour's mischaracterisation of his criminal antecedents resulted in a misapplication of the factors discussed in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, and in that way his Honour accorded too much weight to the protection the community.
9. The Crown submitted that his Honour appropriately dealt with the Bugmy factors. The Crown submitted that the sentencing judge considered in some detail what was contained in the psychological report of Ms Durkin in that regard.
10. The Crown submitted that the sentencing judge had regard to what was said in Munda v The State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54], and clearly applied Bugmy principles. It was within his Honour's discretion how those principles affected the sentence.
11. The Crown submitted that the sentencing judge's assessment of the applicant's criminal record was open to him. The Crown pointed to the offences of violence in 2003 and 2013, a drug offence in 2008, a property offence in 2010, driving offences in 2003, 2009, 2011 and 2013, contravening an ADVO in 2010, firearm/ammunition offences in 2011, and being armed with intent in 2012.
12. The Crown submitted that during the sentencing hearing the applicant's counsel conceded that the criminal record was an aggravating factor.
13. The Crown accepted that the judge was in error in saying that the applicant was on parole at the time of the offending. However, not only was the applicant on bail for other offences at the time of the offending, he was also the subject of warrants that had been issued for his arrest on 29 August 2016. The Crown submitted that where warrants had been issued, offending was arguably more serious than if he had been lawfully on parole.

Determination

1. The sentencing judge summarised the principal aspects of Ms Durkin's report over three pages of his ROS. His Honour noted the domestic violence that the applicant's family had suffered at the hands of his father. The applicant's father suffered from substance use issues, being alcohol, cannabis and heroin.
2. The applicant's father modelled and normalised aggression. He introduced the applicant to alcohol in his early adolescence. The applicant also grew up in a neighbourhood which reportedly encouraged criminality, violence and substance use.
3. The sentencing judge noted that the applicant commenced using alcohol and cannabis at the age of 12, and began using heroin at the age of 15. Although heroin was his drug of choice he had also used crystal methamphetamine from the age of 16.
4. It was in the circumstances of discussing Ms Durkin's report that his Honour observed that there was a real risk of the applicant becoming institutionalised. His Honour then went on to make the comments which I have set out at [57] above concerning the Bugmy factors. There can be no doubt that his Honour took all of these matters into account because he made his finding of special circumstances having regard to the applicant's need for rehabilitation and his risk of institutionalisation.
5. However, his Honour properly made clear that the allowance that must be made for those Bugmy factors had to be balanced against the need to protect the community from a person like the applicant who had committed violent offences. In that regard, the sentencing judge quite properly referred to what was said in Munda. In that case, the majority said: [50] In the absence of specific legislative direction of the kind discussed in the Canadian decisions of R v Gladue and R v Ipeelee, the starting point for discussion of this ground of appeal is the statement of Brennan J in Neal v The Queen]: "The same sentencing principles are to be applied ... in every case, irrespective of the identity of a particular offender or his membership of an ethnic or other group. But in imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender's membership of an ethnic or other group. So much is essential to the even administration of criminal justice. That done, however, the weight to be attributed to the factors material in a particular case, whether of aggravation or mitigation, is ordinarily a matter for the court exercising the sentencing discretion of first instance or for the Court of Criminal Appeal." [51] The statement by Brennan J in Neal has consistently been applied in this country by intermediate appellate courts]. Thus in Fernando, Wood J said: "[I]n sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender." [52] In R v Fuller-Cust, Eames JA observed that, in the application of the principle stated by Brennan J, regard to an offender's Aboriginality serves to ensure that a factor relevant to sentencing which arises from the offender's Aboriginality is not "overlooked by a simplistic assumption that equal treatment of offenders means that differences in their individual circumstances related to their race should be ignored." Moreover, the personal disadvantages affecting an individual offender may be, because of the circumstances in which they were engendered, so deep and so broad that they serve to shed light on matters such as, for example, an offender's recidivism. [53] Mitigating factors must be given appropriate weight, but they must not be allowed "to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence." It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide. [54] It may be argued that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of misconduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion. That having been said, there are three points to be made in response. First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community.
6. In my opinion, his Honour's discussion of the principles was entirely in accord with the High Court's judgment in Munda.
7. As far as the applicant's criminal antecedents were concerned, his Honour noted at the sentence hearing, when discussing with the applicant's counsel the issue of parity between the sentences of Hampton and the applicant, that if any difference were to be found between the two of them it would be found in Hampton's criminal history. The following exchange then occurred: HIS HONOUR: … they are significant entries which are different from your client's criminal history which as I said is nonetheless problematic to the point where I think, with respect, your client's criminal history is an aggravating feature isn't it by now? CURTIS: I'd have to concede that.
8. In my opinion, the concession that the applicant's record was an aggravating feature was properly made. The record discloses that the first offences for which the applicant was convicted as a minor were assault occasioning actual bodily harm and common assault. There were subsequent events of personal violence on his record. There were a number of offences of driving while disqualified and contravening apprehended domestic violence orders, both of which demonstrate a refusal to obey orders of the Court.
9. The more serious offending included possessing an unregistered firearm in a public place and being armed with intent to commit an indictable offence. There are a number of other driving offences, two of which were relevant to the present offending, namely, drive recklessly/furiously or in a speed or manner dangerous and take and drive a conveyance without the consent of the owner.
10. This history bears out what Ms Durkin said about the applicant's difficulties "respond[ing] to authority and societal restraints and boundaries". She went on to say: Mr Nean noted that he has historically formed the opinion that he is free to act as he pleases and in response to his desires, wants and needs. As such, it is reasonably assumed that belief has influenced his ongoing engagement in antisocial conduct.
11. I have set out the only passage where the sentencing judge referred to the applicant being on parole at the time of the offence. It is not apparent how his Honour used that fact in terms of the sentence that was imposed. His Honour does not say that it was an aggravating factor. He said that the applicant's criminal history was acknowledged to be aggravating and then, having summarised the history of his offending, simply added that he was on parole at the time of the offence.
12. In fact, the applicant was on bail for the offence of possessing house breaking implements. Moreover, he was the subject of warrants issued by Maitland Local Court on 29 August 2016 in respect of three offences. Those offences were using an uninsured motor vehicle, using an unregistered motor vehicle and driving whilst disqualified.
13. A similar position obtained in Turnbull v R [2019] NSWCCA 97. In that case the judge wrongly considered that the applicant was on parole at the time of the offending. In fact, his parole had earlier been revoked but he was still at large wanted under a warrant for his committal to prison to serve the balance of the parole at the time of the commission of all the offences.
14. There were two relevant grounds of appeal. Ground 1 was that that the sentencing judge erred in finding that the objective criminality of the offence was aggravated because the applicant was on parole when he committed the offence. Ground 2 was that that the sentencing judge erred in finding that the offences were committed while the offender was on parole and in breach of his parole.
15. Ground 1 was made out, as the Crown conceded, because taking into account the fact that applicant was in breach of conditional liberty was not part of the assessment of objective seriousness: see the discussion in the judgment of Simpson AJA with whom Ierace J agreed at [17]. However, in relation to ground 2 Simpson AJA said: [21] The debate raises an issue about the meaning of the words "while the offender was on conditional liberty" as they appear in s 21A(2)(j). While it may, technically, be correct that the applicant was not, after 8 July 2016, at liberty on parole, it does not necessarily follow that he was not, for the purposes of s 21A(2)(j), on conditional liberty. Section 21A does not define what is meant by "conditional liberty". It is most often taken to refer to an offender's bail or parole status, or to a sentence that is to be served in one of the non-custodial forms made available under sentencing legislation from time to time. It has also been taken to refer to circumstances in which an offender is subject to orders, for example, under the Child Protection (Offenders Prohibition Orders) Act 2004, or orders under the Crimes (Domestic and Personal Violence) Act 2007: Sivell v R [2009] NSWCCA 286 at [29]-[30]. [22] In this case it is not far-fetched to say, as the Crown says, that the applicant's liberty was conditional upon his apprehension following the revocation or parole orders, and that therefore the aggravating factor specified in s 21A(2)(j) was properly taken into account. It is true that, technically, the sentencing judge was wrong to identify the nature of the conditional liberty as parole, but it was correct to say that the applicant was at large on conditional liberty. But even if that were not correct, the facts are not to be ignored. The list of aggravating features specified in subs (2) of s 21A is not exhaustive: see s 21A(1)(c). It was perfectly open to the sentencing judge to take into account the applicant's status at the time of the offending. That he mistook the nature of the conditional liberty could have made no material difference to the outcome. Indeed, it is at least arguable that commission of an offence (or a series of offences) whilst at liberty following revocation of parole is more serious than commission of the same offence or offences whilst on parole. … [24] I therefore do not accept that any material error is demonstrated in this respect. This means that, in only one respect, has error been shown. That is in treating the commission of an offence while on conditional liberty as aggravating the objective seriousness of the offence. That error applies only to the offence constituting "Sequence 4". As can be seen from para 65, extracted above, of the Remarks on Sentence, it was used to elevate the offence, in the mind of the sentencing judge, from "within the mid-range of objective seriousness" to "towards the higher end of the mid-range" of objective seriousness for offences of its kind.
16. In the present case, his Honour did not wrongly take into account the applicant's being on parole as part of the assessment of objective seriousness. On the other hand, whilst his Honour was in error in relation to the applicant being on parole, the fact that he was subject to bail conditions and the subject of warrants for his arrest is no less serious an aggravating factor.
17. However, his Honour was in error in saying that the applicant's longest period out of custody as an adult was for an 11 months period. The first time that the applicant was sentenced to imprisonment was on 19 January 2011 when the sentence was backdated to commence on 21 December 2010. That was for a number of offences, and for a call-up on a s 9 bond. At the time he was aged almost 27. In addition, he spent some 14 months in the community, largely on parole between July 2015 and September 2016. It was, in fact, the co-offender Hampton who had only spent 11 months in the community as an adult.
18. In one sense, his Honour's mistaken finding was made in the applicant's favour because his Honour found that the applicant was almost institutionalised, a matter that resulted in a finding of special circumstances reducing the ratio to 57%. However, it cannot be determined to what extent it was used against the applicant in terms of the finding that his criminal record was a matter of aggravation. In those circumstances, error is shown which requires the applicant to be re-sentenced.

Ground 5: The applicant has a justifiable sense of grievance as a result of the sentence imposed upon his co-offender Mr Hampton

1. As a result of grounds 1 and 4 being upheld, it will be necessary to resentence the applicant. Questions of parity will be dealt with during the resentencing process.

Resentencing

1. I agree with the assessment made by the sentencing judge of the objective seriousness of each of the offences. There are two aggravating factors relevant to that assessment. The robbery offences were committed at the home of the victims, and counts 1, 3 and 4 were each committed in the presence of a child under the age of 18 years.
2. Other matters of aggravation are that the applicant was on bail at the time of the offences and was also the subject of warrants for his failure to appear at court. His criminal record contains convictions for serious personal violence.
3. The applicant came from a dysfunctional family caused by the substance abuse of his father. His father normalised violence within the family and introduced the applicant to alcohol at the age of 12 years. His peer network was composed predominantly of individuals engaged in an antisocial sub-culture.
4. Ms Durkin said in her report at [46]: As Mr Nean has progressed through his adulthood, he has reportedly developed into a copy of the individuals that influenced him during his development. He has become substance dependent, he is violent and he has a long history of involvement with the criminal justice system. By his account he has maintained an association with criminal peers who have further reinforced his antisocial tendencies, including criminal behaviour but also reckless disregard for others, self-focused independence and impulsivity. When coupled with a lack of employment and the absence, or near absence, of prosocial lifestyle activities and people, it is unsurprising that Mr Nean has continued to reoffend.
5. That account means that the considerations discussed in Bugmy are relevant in this matter.
6. The applicant gave evidence at the sentence hearing. His counsel asked if he had told Ms Durkin the truth when he spoke to her and he said that he had. He expressed remorse for what he had done. In answer to some questions from the sentencing judge he indicated that gaol had taught him that he needed to stay away from the wrong people and get off the drugs. He said that in fact gaol had helped him because he had been off drugs whilst inside. The Crown prosecutor did not cross-examine the applicant.
7. I accept, as the sentencing judge did, that the applicant is remorseful for his offending.
8. Evidence placed before the Court shows that the applicant has been punished for three acts of misconduct whilst serving the present sentence. The offences were create or possess prohibited goods being a gaol-made smoking implement, returning a positive urinalysis for buprenorphine, a drug not prescribed for the applicant, and possess a drug implement being a syringe.
9. The applicant has also sworn an affidavit concerning his various placements since being sentenced. He said that he has completed a Chemical Handling Certificate (a vocational training program certificate) and an EQUIPS Addiction Course. He says that he suffers from stomach ulcers and from time to time is taken to hospital. He says that he has previously had surgery for it, he is in constant pain and he is given Proton-Pump inhibitors and pain killers.
10. In my opinion, the offending was serious and carried out by an offender with an unsatisfactory criminal record involving serious personal violence, and whilst he was on bail for other offences. I note that there is no ground of appeal asserting manifest excess of the sentence.
11. It is necessary to consider the position of the co-offender Hampton. Mr Hampton was sentenced to an aggregate sentence of seven years and four months' imprisonment with a non-parole period of four years. The indicative sentences were as follows: Count 1 and taking into account the Form 1 matter: five years; Count 2: Three years and nine months; Count 3: Four years and six months; Count 4: Four years and six months. Mr Hampton was given a discount of 25% for his early pleas in relation to all matters.
12. The sentencing judge found that his prospects of being rehabilitated were very poor and that he was more likely than not to reoffend upon his release. Like the applicant, Mr Hampton came from a poor background which the sentencing judge said engaged the considerations set out in Bugmy. His Honour noted that Mr Hampton had not given evidence and although a psychological report tendered on his behalf contained an expression of remorse, his Honour thought that that had little significance. His Honour made a finding of special circumstances because Mr Hampton was also at a real risk of institutionalisation.
13. In imposing a different sentence and different indicative sentences on Mr Hampton, the sentencing judge said this: In Mr Hampton's case, the sentence that I impose will be somewhat different from that of Mr Nean who, like Mr Hampton, had an extensive criminal history. The principle [sic] basis for differentiating between them is that Mr Hampton through his pleas, is entitled to a discount of some 25% from the sentence that would have otherwise been imposed, whereas, Mr Nean was not entitled to a discount of that magnitude.
14. I accept that there are some differences in the subjective circumstances between the applicant and Hampton but these differences are not significant. Hampton's criminal record might be considered to be somewhat more extensive than the applicant's with Hampton spending more of his adult life in custody than the applicant. It is that matter which led to the sentencing judge's pessimistic view of Hampton's chances of rehabilitation and the likelihood of his reoffending. Like the sentencing judge, I have a similar view of the applicant's prospects of rehabilitation and his likelihood of reoffending. The upbringing and family background of each of the offenders was very similar with each being exposed to violence, alcohol and drug use from an early age.
15. Like the sentencing judge, I do not consider there is any proper basis to distinguish between the applicant and Hampton in relation to the notional starting points for the indicative sentences. I find special circumstances because of the risk of institutionalisation and the need for a greater period on parole to assist in his rehabilitation.
16. In my opinion no lesser sentence than that imposed by the judge is warranted. Further, the indicative sentences should be as the judge stipulated. However, the starting point for the sentence should be adjusted to take account of the fact that the applicant served time in custody before he was sentenced at first instance. Bearing in mind the principle of totality I would backdate the sentence to commence on 1 February 2017.

Conclusion

1. I propose the following orders: 1. Grant leave to appeal. 2. The appeal is allowed. 3. The sentence imposed by Judge McLennan SC in the District Court on 30 April 2018 is quashed. 4. In lieu, sentence the appellant to an aggregate sentence of imprisonment for 8 years and 9 months commencing 1 February 2017 and expiring 31 October 2025 with a non-parole period of 5 years expiring 31 January 2022. The applicant will become eligible for release on parole upon the expiry of the non-parole period on 31 January 2022.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 July 2019