Ritchie v R

Court of Criminal Appeal (NSW)|2023-04-12|Before: Adamson JA, McNaughton J, Sweeney J

HEADNOTE [This headnote is not to be read as part of the judgment] The Applicant pleaded guilty in the Local Court to an offence of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW). He was sentenced to 8 years imprisonment with a non-parole period of 5 years, 8 months imprisonment. A co-offender, Mr Russell, was sentenced for the same offence as the Applicant and, taking into account a 10% discount for a late plea of guilty, received a sentence of 2 years imprisonment to be served by way of an Intensive Correction Order. The Applicant was 19 years old at the time of the offence and 20 at sentence. He had an emotionally unstable childhood during which he was inadequately parented, witnessed domestic violence, and developed substance abuse issues. He was diagnosed with persistent depressive disorder and a personality disorder with antisocial and borderline traits. The Applicant sought leave to appeal against sentence. The issues on appeal were whether the sentencing Judge erred in the application of the principles of parity (Ground 1) and that the sentence imposed was manifestly excessive (Ground 2). The Court (per Sweeney J, Adamson JA and McNaughton J agreeing) granting leave to appeal, allowing the appeal and resentencing the Applicant, held: As to Ground 1, per Sweeney J (Not necessary to decide per Adamson JA, McNaughton J agreeing) (1) The Applicant's and Mr Russell's cases could not properly be distinguished to the extent that they were by the sentencing Judge. His Honour's assessment of the objective seriousness of the offences, the discounts afforded for each offender's plea of guilty at different stages of the court process and their personal circumstances did not justify the disparity between the sentences his Honour imposed. Kitson v R [2022] NSWCCA 166; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46; Chamon v R [2020] NSWCCA 112; Lewis v R [2021] NSWCCA 108; DS v R [2014] NSWCCA 267; Miles v R [2017] NSWCCA 266 considered. Per Adamson JA (McNaughton J agreeing) (2) Consistent with the long term approach of this Court, the ground asserting manifest excess should be considered before the parity ground. Tatana v R [2006] NSWCCA 398; Pham v R [2009] NSWCCA 25; (2009) 193 A Crim R 190; England v R; Phanith v R [2009] NSWCCA 274; Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 considered. As to Ground 2, per Adamson JA (McNaughton J agreeing) (3) The ground of manifest excess was made out. Per Sweeney J (4) As the conclusion on the parity ground required resentence it was unnecessary to consider Ground 2. As to resentencing (5) The Applicant was resentenced to 5 years imprisonment with a non-parole period of 3 years imprisonment.

JUDGMENT

ADAMSON JA: I have had the benefit of reading the reasons of Sweeney J in draft. I agree with the orders proposed by her Honour and gratefully adopt her Honour's summary of the evidence, submissions and the sentencing judge's reasons. However, the approach which I have taken to arrive at this conclusion is different from that which her Honour took. My reasons for taking a different approach are set out below.

The established practice of addressing a ground of parity last

Matthew Ritchie (the applicant) seeks leave to appeal on two grounds: manifest excess and parity. The approach consistently taken by this Court where a ground of parity is raised together with another ground or grounds is to address the other ground or grounds first, before turning to the ground of parity. The reason for this is that a challenge to a sentence on the ground of parity is made on the basis that the sentence is otherwise correct.
In Tatana v R [2006] NSWCCA 398, Howie J (Sully and Latham JJ agreeing) said, at [15]: "Although the first ground of appeal is based upon what is asserted to be disparity between the sentence imposed upon the applicant with those imposed upon his co-offenders, it is more appropriate to first consider the grounds asserting error on the part of the sentencing judge. This is because this Court need only consider the question of parity if there is no error in the exercise of the sentencing discretion. A ground based upon parity assumes that the sentence imposed is otherwise correct. Further the grounds are, with respect, somewhat illogical in the way they have been listed because error found in a later ground of appeal may affect the outcome of an earlier ground."
In Pham v R [2009] NSWCCA 25; (2009) 193 A Crim R 190, two grounds were raised: manifest excess and parity (as in the present case). Latham J (Giles JA and Mathews AJ agreeing) said at [17]: "The first ground of appeal is based on the alleged disparity between the sentence imposed upon the applicant on the one hand and the sentences imposed upon Du and Lam on the other. However the second ground asserts that the sentence is manifestly excessive. That ground should be considered first because an argument based upon parity accepts that the sentence imposed upon the applicant was otherwise appropriate."
In England v R; Phanith v R [2009] NSWCCA 274, Howie J (McClellan CJ at CL and Fullerton J agreeing) said at [22]: "It is appropriate to deal with the second and third grounds of appeal first as a ground concerned only with the issue of parity assumes that the sentence is otherwise appropriate. If the Court concludes that there is error, it will take into account the issue of parity in deciding whether some other sentence is warranted."
In Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60, Howie J (Rothman J agreeing) said at [251]: "I agree with the view expressed by Latham J in Pham that a ground based upon disparity should be dealt with last because a complaint of disparity accepts that the sentence is otherwise appropriate. If there is some other ground asserting a particular error in the exercise of discretion or a ground contending that the sentence is manifestly excessive, the Court will address the issue of parity if it is necessary to resentence the applicant as a result of success on some other ground of appeal; see Tatana v The Queen [2006] NSWCCA 398 applied in Xue v The Queen [2009] NSWCCA 227."
Campbell JA in Jimmy v R referred to Pham v R and said: "[165] Latham J first considered, and rejected, an argument that the sentence was manifestly excessive. She proceeded in that way 'because an argument based upon parity accepts that the sentence imposed upon the applicant was otherwise appropriate' (at [17]). [166] (I think, with respect, that it is going too far to say that an argument based upon parity accepts that the sentence imposed upon an applicant was otherwise appropriate. One can envisage a situation where an applicant's sentence could justifiably be reduced to a particular level by an appellate court on the ground that it was manifestly excessive, but where parity considerations led the appellate court to reduce the sentence to an even lower one.)"
Campbell JA's reasons further expose the rationale for the practice of addressing parity last. If any other ground is made out, the original sentence is almost invariably set aside (because the error has caused the sentencing discretion to miscarry) and the Court is required to re-sentence in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. In such circumstances, the way in which the parity principle was reflected in the sentence actually imposed by the sentencing judge is rendered hypothetical because the applicant must be re-sentenced regardless of whether the offender has a justified sense of grievance on the ground of parity. This Court (as the sentencing court) must, in any event, take into account the issue of parity when re-sentencing.
Thus, where a ground of parity is raised, it is only in the limited sense referred to by Campbell JA that the applicant is taken to have accepted that the sentence is otherwise correct. It is perhaps more correct to express the applicant's submission to this Court thus: "Even if the Court is not satisfied that the sentencing discretion, apart from parity, is affected by error (because none of the other grounds has been made out), the Court should set the sentence aside on the ground of parity and, if the parity ground is made out, re-sentence (including by reference to the principle of parity)."
Statements to similar effect as to the appropriateness of addressing parity last appear in several authorities of this Court: see, for example, Gill v R [2010] NSWCCA 236 at [50] (McColl JA, Latham and Hulme JJ agreeing); Estephan v R [2015] NSWCCA 100 at [83] (Hoeben CJ at CL, R A Hulme and Wilson JJ agreeing); Wat v R [2017] NSWCCA 62 at [66] (Price J, Bathurst CJ and Walton J agreeing); Er v R [2018] NSWCCA 286 at [40]-[41] (Hoeben CJ at CL, Bellew and Campbell JJ agreeing); Li v R [2021] NSWCCA 75; (2022) 400 ALR 578 at [41] (Hoeben CJ at CL, Bellew and Wright JJ); Tsimingos v R [2021] NSWCCA 107 at [19] (Bellew J, Hoeben CJ at CL and N Adams J agreeing) and Sadiq v R [2023] NSWCCA 25 at [30] (Leeming JA, Garling J and myself agreeing).
This practice is almost universally followed. One can, of course, find decisions of this Court, such as C v R [2022] NSWCCA 285; Z v R [2022] NSWCCA 286 where parity and manifest excess were raised as grounds of appeal and the parity ground was addressed first, thereby obviating the need to address manifest excess. However, it is not clear how firmly the ground of manifest excess was pressed in that case (if it was only faintly pressed, it would be understandable that the Court would go straight to the issue of parity). Nor was there any reference to the established practice in the Court's reasons. Thus, it cannot be inferred that there was any intention to depart from, or displace, the established practice of addressing parity last.
The reasons for the established practice may well be as much practical as they are legal. An analysis of a parity ground is, necessarily, case-specific and, therefore, relatively fact-intensive. A consideration of sentences imposed on an applicant when compared with those imposed on co-offenders is likely to provide no more than limited guidance to sentencing judges generally. However, the consideration of other grounds may be educative in the sense of giving guidance to sentencing judges with a view to avoiding the repetition of the error found. Further, because parity is required to be taken into account on re-sentencing when there are one or more co-offenders who have already been sentenced, there is no utility in going through the process twice (once to consider whether disparity in the sentence imposed has been established and, second, on re-sentence) unless it is necessary. It will only be necessary if none of the other grounds has been made out.
Leaving parity to one side, I note for completeness that manifest excess is rarely considered if other grounds have been made out. The reason for this is that manifest excess is a conclusion which does not depend on patent error. Thus, if the sentence is to be set aside for patent error (because one of the other grounds has been made out), there is usually no utility in expressing a view that the set-aside sentence was manifestly excessive, in circumstances where the Court on re-sentence is obliged to impose a sentence which is not manifestly excessive. However, as between manifest excess and parity, parity is addressed last and only, as I have said, if necessary.

The present application

Consistent with the established practice, I propose to address manifest excess before turning, if necessary, to parity.
As referred to above, manifest excess is a conclusion: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J). The question is whether the sentence is "unreasonable or plainly unjust": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
The sentence imposed was a term of 8 years' imprisonment, with a non-parole period of 5 years and 8 months' imprisonment (reflecting a ratio of 70.8% to reflect special circumstances). The starting point for the sentence, when the 25% discount for the plea of guilty is added back to arrive at the sentence before the discount, is 10 years and 8 months' imprisonment. The sentencing judge assessed the objective seriousness of the offence to be in "upper end of the mid-range".
While the sentence might appear to be within range if no regard is had to the applicant's subjective circumstances, I consider that it is manifestly excessive, particularly when one has regard to: the applicant's youth (he was 19 at the time of the offending); the fact that although he had a criminal history, this was his first time in custody; the circumstances of his childhood and upbringing (which are amply set out in Sweeney J's reasons); and his mental conditions which led to poor decision-making. Although it is not necessary to attribute a reason for the conclusion of manifest excess, it would appear that the sentencing judge formed a view of the applicant which was, in the circumstances, particularly harsh and which appeared to be based on the proposition that the applicant had been primarily motivated by vigilantism (rather than the factors identified by Dr Dornan, which have been set out in detail by Sweeney J). This appears from his Honour's firm statement to the applicant in the course of the sentencing judgment to the effect that the applicant "must be made an example of".
For these reasons, the ground of manifest excess has been made out. It is, accordingly, unnecessary to address the parity ground.
In these circumstances, it is necessary to re-sentence the applicant. Having read the reasons of Sweeney J, I agree with the sentence proposed by her Honour (which takes account of a discount of 25% for the plea of guilty) for the reasons given by her Honour. I also agree that it is appropriate in the present case to make a substantial adjustment to the statutory ratio between the sentence and the non-parole period on the basis of special circumstances in order to assist the applicant's post-release rehabilitation with a view to preventing further offences.
McNAUGHTON J: I have also had the benefit of reading the reasons of Sweeney J in draft. I too agree with the orders proposed by her Honour and also gratefully adopt her Honour's summary of the evidence, submissions and the sentencing judge's reasons.
I have further had the opportunity to read the reasons in draft of Adamson JA outlining an alternative basis for reaching the same conclusion as Sweeney J. I agree with Adamson JA's reasons.
SWEENEY J: Matthew Ritchie, the Applicant, seeks leave to appeal against the sentence imposed upon him in the District Court for an offence of wounding with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW), which has a maximum penalty of 25 years imprisonment and a standard non-parole period prescribed of 7 years imprisonment.
He pleaded guilty in the Local Court and was sentenced to 8 years imprisonment with a non-parole period of 5 years 8 months imprisonment, with a 25% discount for his plea of guilty, and a finding of special circumstances reducing the non-parole period.
He appeals on two grounds, that the sentencing judge erred in the application of the principles of parity and that the sentence imposed on him was manifestly excessive.
He requires leave to appeal out of time. His solicitor explained there were delays in obtaining counsel's advice and obtaining material from the Court Registry about the co-offender's sentence. The Crown did not oppose an extension of time but submitted that the Court should consider the merits of the appeal in deciding whether to grant leave. The delay is explained sufficiently. For the reasons below I would grant leave to appeal.

The sentence proceedings in the District Court

Grant DCJ sentenced the Applicant and two other men for offences arising out of one incident. One man was sentenced for an accessory offence, with a lesser maximum penalty, for driving the men to and from the main offence. The Applicant does not rely on that man's sentence in support of his disparity ground, but rather on the sentence imposed on Jaidyn Russell, who was sentenced for the same offence as the Applicant with the same maximum penalty.

Facts of the offences

The Applicant and Mr Russell were sentenced on the basis of the same agreed facts with one difference to which I will refer. The facts were as follows.
The victim of the offence was Troy Holland. The offence took place at the home of Mr Holland's former partner, Shannon Polmear. On Friday 11 December 2020 Mr Holland was visiting the children he had with Ms Polmear at their home. Around 8:00pm he went into the house, picked up a kitchen knife, walked into Ms Polmear's bedroom and ran the knife along her neck, causing a 3cm laceration to the left side of her throat. She grabbed a towel and held it against her throat.
One of Ms Polmear's and Mr Holland's sons came into her room and she showed him what Mr Holland had done. She told her son to have Mr Holland leave the house. Her son sent a text message to his brother, Jaidyn Russell, stating that Mr Holland had attempted to kill their mother. Jaidyn Russell phoned his brother, who passed the phone to his mother. Ms Polmear could hear Jaidyn Russell yelling on the phone. She hung up.
Mr Holland had dropped the knife and walked outside, where he was standing in the front yard. The Applicant, Jaidyn Russell and another man arrived at Ms Polmear's home in a car. The Applicant, Mr Russell and the other man got out of the car and attacked Mr Holland in the front yard.
The Applicant armed himself with a knife that Jaidyn Russell had brought. He stabbed Mr Holland four times in the stomach and chest. The Applicant's facts said the three men punched and kicked Mr Holland. He fell to the ground twice and got back up twice, and each time he got back up the three men continued to kick and punch him. Mr Holland collapsed onto the footpath. The Applicant, Jaidyn Russell and the other man left in the car. I note that Jaidyn Russell's agreed facts said that he punched Mr Holland, but not that he punched and kicked Mr Holland before and after he was stabbed.
Emergency services were contacted and Mr Holland was taken to hospital, where he underwent life-saving surgery, a laparotomy and a right-sided thoracotomy, and was placed in an induced coma. He had a deep stab wound at his right axilla, causing a lung puncture and laceration which caused blood to enter his lungs. He had three deep stab wounds to his abdomen, which required 20 cm of his bowel to be removed to prevent infection. He had a wound to his forehead and defensive stab wounds to his left hand and arm. His face was swollen and he had numerous bruises on his face and body.
In the early hours of 12 December 2020 the Applicant admitted to Jasmine Russell, Ms Polmear's daughter and Jaidyn Russell's sister, that he had stabbed Mr Holland. He said, "yeah the knife shouldn't have come. He [Jaidyn] was going to do it but I said don't do it, give it here".

The subjective case of the Applicant presented at sentence

The Applicant did not give evidence in the sentence proceedings. He relied on a report from psychologist Dr Dornan, which was received into evidence without objection. The contents of that report are important in the appeal and it is therefore necessary to refer to them in some detail.
The Applicant was 19 years old at the time of the offence and 20 when he was sentenced on 15 October 2021.
He had a criminal history as a child and young adult. His juvenile record in New South Wales included one offence of robbery in company for which he was placed on a suspended control order, one each of damaging property, resisting a police officer, common assault, stalk or intimidate and using an offensive weapon to prevent his detention. As an adult, in 2019 and 2020, he had an offence of stalk or intimidate, for which he was fined, one of damaging property, one of having custody of a knife in a public place, one of carrying a cutting weapon on his apprehension, some driving offences, possession of a drug and shoplifting. He had had no prior custodial sentence. In opposing his appeal, the Crown placed great weight on the Applicant's criminal record, violent behaviour, and risk to the community, as did the judge in sentencing him.
The Applicant's background, as he reported it to Dr Dornan, was as follows. His parents separated when he was about one. He stayed with his mother. He described her as kind, warm and loving, but said because of her work, when he was a child, he was often left in the care of his grandparents who were lenient and permissive. There was limited discipline or consequences at home. He felt rejected by his mother in deference to her partners. He felt as if no one was really interested in him growing up. As he got older he felt increasing feelings of emotional instability and worthlessness.
When he was around 9 and 10 he frequently witnessed physical and psychological abuse of his mother by her then partner, and he was sometimes also assaulted, though not seriously. As a result of witnessing that violence he experienced anxiety, depression, emotional distress and anger. Because of the domestic violence against his mother, he went to live with his father in Victoria at about 11. He felt traumatised and scared for his mother, unhappy and lost. This living arrangement with his father ended when he was about 16 or 17 and he became effectively homeless, couch surfing with friends. At the time of the offence he was transient but staying with a friend's family.
Because he moved around a lot as a child he had a disjointed education and considered himself "virtually illiterate", which impacted his self-worth. He left high school in Year 8, became involved with antisocial peers, and began to use alcohol and illicit drugs. However he obtained work as a boilermaker and was employed until his arrest.
He reported using cannabis, alcohol and crystal methamphetamine from the ages of 15, 16 and 17. He told Dr Dornan his criminal history was motivated by the need to fund his drug use, not to hurt anyone. Dr Dornan diagnosed him with a stimulant use disorder and alcohol use disorder.
The Applicant told Dr Dornan he had experienced a "moderately depressed mood" since childhood, which commenced after his experience of domestic violence and persisted across his childhood and into adulthood. Dr Dornan said it is clear the Applicant has been affected by domestic violence, and diagnosed him with persistent depressive disorder and a personality disorder with antisocial and borderline traits.
Dr Dornan said the Applicant experienced specific developmental vulnerabilities due to the relative absence of his mother and the apparent lack of discipline by his grandparents, such that his behaviours worsened and he experienced ongoing problems of emotional and physical dysregulation. He said his behaviour worsened as he entered high school, he reported feeling abandoned and experiencing persistent depression due to low self-esteem, which he self-medicated through his use of drugs and alcohol. Dr Dornan said that the Applicant's difficulties regulating his affect and anger and abusing substances had led to criminal conduct in the past.
The Applicant told Dr Dornan he had trouble developing and maintaining interpersonal relationships into adulthood and believed that instability stemmed from his parents' separation and his feelings of abandonment. He said he had always struggled to make real friends and so was isolated and withdrawn in his childhood and adolescence. He said his main friend was Jaidyn Russell, whom he described as his closest friend and "incredibly loyal".
About the offence, the Applicant told Dr Dornan that his friend received a phone call in which his friend's mother said someone had just tried to kill her, his friend became incensed and rushed to his mother's home, he went along to support his friend and try to calm him down, but everyone was highly emotional and he felt stressed and emotionally dysregulated. He was unable to say if he was under the influence of a drug or alcohol at the time.
Dr Dornan expressed the opinion that the Applicant committed the offence in a "misguided show of loyalty and support" to his friend because he had struggled with friendships in the past. He said his decision to commit the offence was reactive, in light of his recent intoxication and a lack of consequential thinking. Dr Dornan said the Applicant's long-term history of affect regulation difficulties, poor decision-making, poor consequential reasoning and antisocial attitudes suggests he committed the offence "as a misguided attempt to spare his friend from committing the offence". Dr Dornan said that the Applicant not bringing the knife used in the offence supported his assertion that he went only to confront the victim in a show of support for his friend.
Dr Dornan said the primary contributors to the Applicant's offence were immaturity, poor decision-making, poor abstract thinking, lack of consequential reasoning and long-standing antisocial attitudes, exacerbated by long-standing alcohol and substance abuse, superimposed on chronic personality disorder with antisocial and borderline features and persistent depressive disorder.
Dr Dornan noted that the Applicant expressed regret and remorse for his offending. Using assessment tools he assessed the Applicant as having an overall high risk of recidivism and a moderate risk of future violent offending. He said his primary risk factors were his substance abuse, his poor emotional skills and his unsophisticated intellectual functioning, as well as his criminal history.
In the sentence hearing the Crown submitted that the sentencing judge could take into account the Applicant's youth and his mental health issues. The Crown submitted the sentencing judge could find that the Applicant experienced some disadvantage in his upbringing, childhood instability, exposure to domestic violence, and that he was effectively homeless at 16 to 17, which was about when his juvenile antecedents commenced. The Crown submitted the court could find the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27 were enlivened to some extent, reducing the offender's moral culpability, though not as much as where there was significantly greater disadvantage. The sentencing judge did not do so.
The Applicant's counsel on sentence relied on his youth and the need for great weight to be placed on his rehabilitation, and his "Bugmy type" factors of childhood emotional instability and diagnosed psychological disorders. He submitted that the offence was spontaneous, influenced by the assault on Ms Polmear, and his planning for the offence occurred between his receiving that information and going to the house where the offence was committed.

Sentencing of the Applicant

The sentencing judge found the offence was aggravated by the Applicant being on a Community Correction Order and parole at the time of the offence. He was actually on bail, not parole, this custodial sentence being his first. He was on a 12 month Community Correction Order for an offence of carrying a cutting weapon on his apprehension.
In terms of the objective seriousness of his offence, his Honour stated that the Applicant did not know Mr Holland, he appeared to have reacted to what he was told by others, he engaged in "vigilante conduct", his offending was serious. His Honour said the injuries to the victim determined the seriousness of the offence and the appropriate sentence "to a very significant degree", noting the 4 deep stab wounds and resultant surgery. He regarded the use of the knife as an aggravating factor. His Honour said there was some degree of planning between the Applicant and his co-offenders, that he took the knife from Jaidyn Russell and used it, and appeared to take the dominant role in the attack. He assessed the offence as towards the upper end of the mid range of objective seriousness.
From the report of Dr Dornan his Honour summarised the Applicant's childhood history of his parents' separation, his mother's domestic violence, his disjointed primary school education and leaving high school early. His Honour noted the Applicant's "angry, impulsive and reckless behaviour at school", his involvement with antisocial peers, his drug and alcohol use, his diagnoses of persistent depressive disorder and personality disorder, and his criminal history which included "a number of violent offences and a robbery".
His Honour noted Dr Dornan had said the Applicant had an approximately 87% chance of reoffending and a moderate/elevated risk of future violent offending. He rejected Dr Dornan's report that the Applicant had expressed remorse and found he had not.
His Honour relied on a Sentencing Assessment Report that the Applicant had a tendency to rationalise his behaviour, had expressed regret for using the weapon but not remorse for the harm inflicted on the victim, and that he had committed eight misconduct offences in custody. He relied on the Sentencing Assessment Report writer's opinion that the Applicant had a history of aggressive and violent behaviour, a propensity to normalise violence and he considered it necessary to present as aggressive in the custodial environment. His Honour found the Applicant's prospects of rehabilitation were poor.
His Honour found special circumstances in this being the Applicant's first time in custody and his need for supervision on release, and reduced the non-parole period to 70.8% of the head sentence. He stated he took into account the Applicant's youth at the time of the offence. He applied a 25% discount for the Applicant's early plea of guilty.
His Honour addressed the Applicant: "A message must be sent to those who contemplate taking the law into their own hands. If you do you will go to gaol for a long period of time. It is for the courts to enforce the law, not the individual. You, by reason of your conduct, must be made an example of. Vigilante conduct will not be tolerated. Gaol is a blunt tool, but in this case it is a necessary tool, not only to make an example to others, but also to protect the community. You have a personality disorder with antisocial and borderline traits. You have an extremely high risk of reoffending. A lengthy period of gaol may deter you; I fear it may not. General deterrence, specific deterrence, protection of the community are significant sentencing considerations. Your conduct needs to be denounced. As I have said before, gaol is a blunt tool but in your case it is the only tool."

Sentence of Jaidyn Russell

His Honour sentenced Jaidyn Russell for the same offence with the same maximum penalty on 30 August 2022, that is, after he sentenced the Applicant. His Honour sentenced Mr Russell on the same agreed facts except, as I have noted, he was excluded from kicking Mr Holland or punching him more than once. His Honour afforded Mr Russell a 10% discount of his sentence for his plea of guilty after he was committed for trial.
In assessing the objective seriousness of Mr Russell's offence his Honour referred to it as "a vigilante attack" but stated that while the injuries inflicted were a major consideration, an assessment of the objective seriousness must be based on all the circumstances of the case. His Honour noted that counsel for Mr Russell had submitted that the knife was taken for his own protection rather than a result of planning or premeditation for the offence. His Honour was not satisfied that the presence of the knife represented planning by Mr Russell, given the short time between his receiving the message from his brother and the commission of the offence. He found the offence occurred spontaneously. His Honour assessed Mr Russell's offence as below the mid range of seriousness.
His Honour found that Mr Russell brought the knife to the scene but did not stab the victim and stated that Mr Russell's moral culpability was well below the Applicant's, he having taken no role in the physical elements of the offence.
His Honour took into account Mr Russell's "very compelling" subjective case. He was 21. His parents separated when he was about five, after which he lived with his mother. He witnessed significant domestic violence inflicted by Mr Holland on his mother, both his parents spent time in custody, his mother and Mr Holland abused substances, and his mother had attempted suicide in custody when he was 14. He also disclosed an incident of sexual abuse by Mr Holland. His Honour took into account that his childhood experience of constant anxiety and hypervigilance and "chronic exposure to toxic stress" impacted on his development of healthy affect regulation. His Honour found that Mr Russell's upbringing enlivened the principles in Bugmy v The Queen, which mitigated his sentence, reduced his moral culpability and reduced the weight to be given to general deterrence and protection of the community in sentencing him.
His Honour took into account that Mr Russell's concern for his mother's welfare was the main factor contributing to his offence, particularly given his awareness of and exposure to Mr Holland's history of violence against his mother. His Honour accepted that against that background, he reacted to the trauma of his brother's message that Mr Holland was trying to kill his mother, his trauma memories of his childhood exposure to domestic violence affected his stress response, causing emotional and behavioural dysregulation, and in that context, he committed the offence. His Honour was satisfied that Mr Russell's diagnoses, including post-traumatic stress disorder and generalised anxiety disorder, materially contributed to his commission of the offence and, in accordance with Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, stated that Mr Russell was an inappropriate vehicle for general deterrence and any period in custody would weigh more heavily on him.
His Honour took into account that at the time of the offence Mr Russell was 19, and accepted that his youth reduced the relevance of general deterrence. He took into account that Mr Russell had no criminal record and was therefore entitled to leniency. He found that Mr Russell had a low risk of reoffending, was remorseful and contrite and had shown insight into his offending.
In sentencing Mr Russell, His Honour noted that he had sentenced the Applicant, that it was the Applicant who attacked the victim with the knife and inflicted the stab wounds, that he had a dominant role in the attack, that he believed his actions were justified and did not express any remorse, that he had a personality disorder, a prior record of offences of violence, an extremely high risk of reoffending and poor prospects of rehabilitation.
His Honour sentenced Mr Russell to 2 years imprisonment to be served by way of an Intensive Correction Order.

First ground of appeal

There was considerable overlap in the Applicant's arguments on both his grounds of appeal and the objective and subjective factors he relied on in support of them. I consider they are closely related.
Because the Applicant was sentenced before Mr Russell, but relies on Mr Russell's sentence as giving rise to a justifiable sense of grievance on his part, the question is whether the subsequent sentence of Mr Russell is objectively capable of giving rise to a justifiable sense of grievance by the Applicant: Kitson v R [2022] NSWCCA 166.
There was no dispute between the parties as to the applicable principles. The parity principle requires that like cases be treated alike and people whose cases are different in some respects should be treated differently, to ensure consistency in sentencing: Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49. Appellate intervention on the ground of parity is warranted in the presence of marked and unjustified disparity between co-offenders, or where the difference in sentences is manifestly excessive in the sense that it is unreasonable or plainly unjust: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46.
The Crown relied on the statement of R A Hulme J in Chamon v R [2020] NSWCCA 112 that there are considerable obstacles for an Applicant contending error on a parity basis where the sentencing judge was fully aware of the sentences imposed upon co-offenders and the reasons for their sentences, and where the same judge sentenced an Applicant and the co-offender. R A Hulme J stated the question is whether the differentiation made by the judge was one that was open to him in the exercise of his discretion.
The court will refuse to intervene when disparity is justified by differences between co-offenders: Lewis v R [2021] NSWCCA 108 at [62] per Bellew J. The court will intervene "where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending": DS v R [2014] NSWCCA 267 at [39]. In Miles v R [2017] NSWCCA 266 at [9] Leeming JA said the question "is whether the sentence imposed on a co-offender is reasonably justified in light of those differences, bearing in mind the qualitative and discretionary judgments required of the sentencing judge.": Z v R [2022] NSWCCA 286 at [31]-[32].
The Applicant accepted that a disparity, perhaps even a marked disparity, between the sentences imposed on him and Mr Russell was justified, but submitted that the degree of difference was not justified by the differences in the objective offending or subjective cases of each, even taking into account the Applicant's greater role in the offence, his criminal record, and that he was in breach of his conditional liberty by the offence.
Counsel for the Applicant submitted that the significant divergence in penalty was not warranted by the sentencing judge's assessment that the objective seriousness of the Applicant's offence was at the upper end of the mid range and Mr Russell's was below mid range. He relied on the fact that they were sentenced as participants in the same criminal enterprise, although they played different roles. He accepted the Applicant inflicted the wounds. He submitted Mr Russell brought the knife to the scene, although accepted that the sentencing judge found the planning by Mr Russell occurred from when he received his brother's message until the offence occurred. Counsel submitted that the disparity in the Applicant's and Mr Russell's sentences went beyond what was appropriate to reflect the differences in their culpability.
He submitted that the sentencing judge made no finding as to when the Applicant knew about the existence of the knife. He said that it was not open to the judge to find from the facts beyond reasonable doubt that the Applicant knew about the knife before he arrived at the address and took the knife from Mr Russell and used it. He submitted there was not a great difference between a spontaneous offence by the Applicant and Mr Russell's not planning to use the knife for criminal purposes when he took it to the scene.
Counsel submitted that the sentencing judge dealt with the issue of motive for the offending in such contrasting ways between the Applicant and Mr Russell as to establish a justifiable sense of grievance in the Applicant. He relied on the Applicant's account to Dr Dornan and the Sentencing Assessment Report author that he went to the scene in support of his friend, after his friend was told someone had tried to kill his mother, whereas his Honour stated that the Applicant did not know Mr Holland, he appeared to have reacted to what he was told by others and engaged in vigilante conduct which had to be denounced.
Counsel noted that the judge also characterised Mr Russell's offence as vigilante conduct, but treated his motive, in response to the victim's reported conduct towards his mother, as mitigating rather than aggravating his offending. Counsel acknowledged that the evidence in Mr Russell's case was more compelling on the issue of motive, but submitted that the sentencing judge appeared to have accepted that the Applicant was informed that a violent offence had been committed against Mr Russell's mother before he went to the scene and committed the offence. Counsel submitted that the sentencing judge treated the Applicant's motive as "vigilante justice" and allowed it to overwhelm the objective seriousness of the offending conduct itself, contrary to Carr v R [2014] NSWCCA 202 at [34[-[35]. Counsel submitted that the difference in their motives was not so stark, but the sentencing judge treated the Applicant's motivation as elevating the objective seriousness of his offence and of general deterrence, specific deterrence and protection of the community in his sentencing, whereas it was treated in Mr Russell's case as a mitigating factor which reduced his moral culpability.
Counsel submitted that the sentencing judge dealt with similar subjective factors of the Applicant and Mr Russell in markedly different ways, so as to inform the Applicant's justifiable sense of grievance. The first factor was their youth, both men being 19 at the time of the offence. Counsel submitted that the sentencing judge did not engage with how the Applicant's youth affected the relevant purposes of sentencing, but in sentencing Mr Russell found his youth reduced the relevance of general deterrence.
Counsel acknowledged that Mr Russell's background provided a more compelling basis to engage the Bugmy principles. He submitted that in the Applicant's sentence both parties referred to Bugmy principles, the Crown conceded they were enlivened to some extent, reducing the offender's moral culpability, his Honour referred in his remarks to the report of Dr Dornan, but his Honour made no reference to Bugmy or how the Applicant's background impacted relevant purposes of sentencing. Rather, counsel submitted, the only comment by his Honour about the contents of Dr Dornan's report was about the Applicant's prospects of reoffending.
Counsel submitted that in sentencing Mr Russell, the judge dealt comprehensively with his background of disadvantage and stated he gave reduced weight to general deterrence and protection of the community. He submitted that the Applicant's subjective case, including his childhood history, Dr Dornan's observations of ongoing anxiety, depression, emotional distress, low self-worth, and his diagnosis of persistent depressive disorder, should have attracted the Bugmy principles so as to reduce the Applicant's moral culpability and reduce the focus on general deterrence in sentencing him.
The Crown submitted that the differences in the sentences are explicable by the contrast in the roles played by the Applicant and Mr Russell and their strikingly different subjective factors.
The Crown submitted that the Applicant was an unremorseful, repeatedly violent offender with a high risk of reoffending, who was motivated primarily by the desire for vigilante style revenge, whereas Mr Russell had no prior convictions, was motivated primarily by concern for his mother, who had been injured with a knife by the victim, who Mr Russell knew was violent, that Mr Russell was remorseful, had a strong Bugmy case, had a mental health condition which was causally related to his offending and he had good prospects of rehabilitation.
The Crown relied on the same sentencing judge having sentenced both the Applicant and Mr Russell, and that when he sentenced Mr Russell the judge referred to parity issues, and noted the dominant role by the Applicant, found Mr Russell's moral culpability to be well below the Applicant's, and that his state of mind about his mother mitigated the objective seriousness of his offence.
The Crown submitted that the objective seriousness of the Applicant's offence was more serious than Mr Russell's because of his vigilante motive, the ferocity of the attack, his dominant role, that he took and used the knife and inflicted multiple significant injuries. The Crown submitted Mr Russell's personal motive and the mental illness he had developed from Mr Holland's history of attacking his mother significantly distinguished his offence from the Applicant's. The Crown submitted that the objective seriousness of the offences was the touchstone of the sentencing exercise.
The Crown submitted that their different roles, contrition, remorse, prospects of rehabilitation, likelihood of reoffending, criminal record and that the Applicant was in breach of conditional liberty explained the differences in their sentences. The Crown submitted that the Applicant had numerous matters in his criminal record, that in committing the offence he behaved in an adult manner, including the use of a weapon and considerable violence, and therefore specific deterrence was a significant consideration in sentencing him.
The Crown submitted that the sentencing judge did not err in the application of Bugmy because the Applicant did not present his case on sentence as a Bugmy case, but rather his counsel referred to "Bugmy type" considerations. The Crown submitted that the Applicant presented no evidence of profound childhood deprivation as envisaged in Bugmy, but that the Applicant's criminal record and behaviour in this offence clearly raised the countervailing issue of the protection of the community from the Applicant's inability to control his violence. The Crown relied on the assessment of the Applicant's high risk of reoffending, and what the Sentencing Assessment Report author described as his "aggressive behaviour and attitudes", "malevolent disposition", his criminal history involving violence and weapons and his violent behaviour in custody.

Consideration

The sentencing judge reserved his sentence of the Applicant. Accepting that his Honour was presiding in a busy Court and the Applicant's sentence hearing was very short, his Honour did not take into account, in sentencing the Applicant, his childhood and adolescent disruption and emotional instability, or the consequences of it, including his diagnosed persistent depressive disorder and personality disorder, although his Honour summarised the contents of Dr Dornan's report and the Crown had submitted that the judge could take into account the Applicant's mental health issues and childhood disadvantage, instability, exposure to domestic violence and effective homelessness in his mid-teens as reducing his moral culpability to some extent.
Despite those submissions, and despite his Honour noting that Dr Dornan had reported the Applicant's parents' separation when he was one, that he saw repeated domestic violence against his mother, that his living with his father ended when he was 16 or 17 years old and for a time he was couch surfing, that he had been diagnosed with persistent depressive disorder and a personality disorder, his Honour did not otherwise refer to those matters in sentencing him, except to refer to the Applicant's personality disorder in the context of a requirement for general and specific deterrence. His Honour seemed to take that condition into account only in a way adverse to the Applicant.
His Honour made no reference to the matters in Dr Dornan's report that the Applicant felt rejected by his mother and a lack of interest in him by his parents, which led to him becoming angry and frustrated, Dr Dornan's opinion that he self-medicated his persistent depression and anger, or Dr Dornan's opinion that the Applicant experienced specific developmental vulnerabilities due to the relative absence of his mother and the apparent lack of discipline by his grandparents, which led to his experiencing ongoing problems of emotional and physical dysregulation. His Honour made no mention of Dr Dornan's opinion that the Applicant's "long-term history of affect regulation difficulties, poor decision-making, poor consequential reasoning and antisocial attitude suggested he committed the offence in a misguided attempt to spare his friend from committing the offence".
There was a clear evidentiary basis for his Honour to make findings about the Applicant's background and how it affected or contributed to the offence and his moral culpability, but his Honour did not refer to those matters at all in sentencing him. His Honour's reference to the Applicant's youth was brief. His Honour appeared to place great weight on the assessment by Dr Dornan of the Applicant's high risk of recidivism and moderate risk of future violent offending, his offences in custody and the Sentencing Assessment Report writer's opinion that the Applicant had a history of aggressive and violent behaviour, propensity to normalise violence, and violent and aggressive behaviour in custody.
Although his Honour referred in his recitation of the facts, when sentencing the Applicant, to Jaidyn Russell being advised by a message of Mr Holland's assault on his mother, he characterised the Applicant's offence as vigilante conduct against someone he did not know. That seems to be a dismissive treatment of what the Applicant told Dr Dornan and the Sentencing Assessment Report writer, that he had attended the scene to support his friend. His contemporaneous admission to Jasmine Russell confirmed that situation. He was a young man whose behaviour had been adversely affected by his inadequately parented, emotionally unstable upbringing, who therefore lacked the emotional resources and maturity to make proper decisions about his behaviour, and lacked consequential thinking, and having few friends, he committed the offence out of a misguided sense of loyalty to his friend. His Honour treated those factors as adverse to the Applicant rather than factors which should properly have been taken into account to reduce his moral culpability.
His Honour made no reference to the effect of the Applicant's depression other than reciting the fact of the diagnosis. Personality disorders can be taken into account in accordance with the principles in De La Rosa, but it seems that his Honour only took that condition into account as another matter adverse to the Applicant.
In assessing the objective seriousness of the Applicant's offence his Honour regarded the injuries suffered by the victim as significantly determinative, whereas he stated in sentencing Jaidyn Russell that while the injuries inflicted were a major consideration, an assessment of objective seriousness must be based on all the circumstances of the case. His Honour did not have regard to all the circumstances in the Applicant's case.
His Honour's different treatment of the Applicant and Jaidyn Russell was stark, but not justified by the differences in their offences or their subjective circumstances.
Mr Russell did not inflict the wounds although he took the knife to the scene. Mr Russell had a closer relationship to the victim of Mr Holland's assault which appeared to precipitate the offending, and he knew of Mr Holland's history of violence against his mother. The Applicant was, although acting on the same information, removed from the relationship with Jaidyn Russell's mother to a degree, although he was acting in support, albeit misguided, of Jaidyn Russell. Mr Russell had no prior record and his upbringing entailed more significant disadvantage than the Applicant's. They were both 19 at the time of the offence, but Mr Russell's youth was determined to reduce the relevance of general deterrence. Although his Honour found that Mr Russell had engaged in vigilante justice in respect of Mr Holland, he found Mr Russell was an inappropriate vehicle for general deterrence because of his diagnosed mental conditions and because his concern for his mother's welfare was the main factor contributing to his offence.
The cases of the Applicant and Mr Russell cannot be distinguished to the extent that they were by the sentencing judge. His Honour assessed the Applicant's offence as in the upper end of the mid range of objective seriousness, and Jaidyn Russell's below the mid range of objective seriousness. That different assessment of objective seriousness, the different discounts for their pleas of guilty at different times in the court process, and their personal circumstances, accepting that Mr Russell's were more favourable than the Applicant's, could not justify the starkly disparate sentences imposed on each of them.
The violence and injuries inflicted by the Applicant were serious. However, the Applicant's offending conduct was spontaneous, largely in support of his friend and in response to the reported serious assault of his friend's mother. The Applicant, like Mr Russell, was very young. His emotionally unstable childhood and adolescence, involving parental neglect and observation of domestic violence, left him with diagnosed psychological problems which he self medicated with substance abuse. Those matters were not taken into account insofar as they affected the offence, his moral culpability and required attention to his rehabilitation. His criminal record did not demonstrate entrenched violence to the point that he represented a danger to the community outweighing consideration of his personal background. He did express remorse to Dr Dornan.
Accordingly I would uphold the first ground of appeal. Error having been found on that ground, it is necessary to resentence the Applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. Therefore, it is not necessary to consider his second ground of appeal, that his sentence was manifestly excessive. However, I will bear in mind the statistics and sentences imposed in other cases to which the Court was referred, in resentencing the Applicant.
Whilst opposing the outcome that the Applicant be resentenced, the Crown submitted that in doing so, the Court should adopt the findings of the sentencing judge insofar as they had not been the subject of a successful challenge on appeal. Counsel for the Applicant submitted that in resentencing him the Court should make different findings in respect of his youth and immaturity, his motive for the offending as it affected his moral culpability, the extent of planning by the Applicant preceding the offence, and the treatment of the Applicant's childhood, background and resultant conditions reducing his moral culpability and the need for a focus on general deterrence.
There is a tension in the purposes of sentencing in the Applicant's case between the seriousness of the offence and his assessed risk of reoffending, and his youth, background and need for rehabilitation. There is no dispute by the Applicant that the stabbing and injuries were serious, or with the judge's assessment of the objective seriousness of the offence.
As to the planning by the Applicant and his motivation for the offence, there is no evidence as to when, in the short time between when Jaidyn Russell was informed of the assault of his mother and the stabbing occurred, the Applicant became aware of the knife which Jaidyn Russell took to the scene and decided to use it. The offence happened quickly, spontaneously. Any planning by the Applicant was brief, and his offending was, as he told Dr Dornan, in an environment of high emotion when he was feeling stressed and emotionally dysregulated. Dr Dornan explained how his emotional dysregulation, poor decision making, poor consequential thinking and misguided loyalty to Jaidyn Russell were connected with the Applicant's offence. Those conditions were a product of his emotionally neglected and unstable upbringing which left him with inadequate emotional resources to guide his behavioural decisions. That does not mean he was not responsible for his violent act, but those matters reduced his moral culpability for his offence, as did his diagnosed persistent depressive disorder and personality disorder. They also reduce to some extent the weight to be afforded to general and specific deterrence in resentencing the Applicant.
Although the Applicant was assessed as at high risk of reoffending and moderate risk of violent reoffending, that has to be viewed in light of his background, resultant conditions, the latter of which he self-medicated by substance abuse, and his lack of guidance, treatment or rehabilitation, bearing in mind he is still very young. His record is not so long or entrenched that he presents a danger to the community which militates against treating his background and resultant circumstances as mitigating factors.
The Applicant's youth and background circumstances and resultant conditions are such that substantial weight should be given to promoting his rehabilitation. They are special circumstances requiring a greater departure from the statutory ratio for the non-parole period than the 70.8% allowed by the sentencing judge. Indeed, there is a need for a significant reduction of the non-parole period from the statutory ratio to permit the Applicant to receive treatment under supervision upon his release from custody, to assist his rehabilitation, to reduce his risk of reoffending with a view to the protection of the community.
Parity with the sentence imposed on Jaidyn Russell is also a relevant consideration in resentencing the Applicant.
The Applicant relied on an affidavit that while in custody he has commenced several programs, he has been working, and his time in custody since he was sentenced has been more difficult due to Covid lockdowns which prevented him from in-person family visits for approximately 22 months. The latter was confirmed by an affidavit tendered by the Crown which recorded many days and half days when the Applicant was locked in his cell for Covid restriction related reasons.
I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed in the District Court and in lieu thereof, sentence the Applicant to a non-parole period of 3 years imprisonment commencing on 31 December 2020, with an additional term of 2 years imprisonment, making a total sentence of 5 years imprisonment. The non-parole period will expire on 30 December 2023. The sentence will expire on 30 December 2025.

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: 23 June 2023

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