(b) Good character;
(c) Good prospects of rehabilitation; and
(d) Remorse.
70 It is convenient to consider Grounds 1 and 2 together as they overlap.
71 When he came to sentence the applicant JC, the Judge considered the issue of parity with the sentence imposed on SS. The Judge said (ROS at 13-14):
"The Crown in its submission has submitted that his friend's [SS] sentence is one that I should be guided by on the matter of parity since they were both involved in the same two crimes. The defence, by Mr Carroll, said they can be distinguished. He says that [SS] did not offer assistance and that is true and I am taking that into account as well. Mr Carroll has pointed out that [SS] was younger by twelve months as I understand it. They're both youths. However, [SS] was already under conditional liberty for offences of malicious damage and had, as I pointed out already, has a record whereas JC has not. And the Crown says taking all those things into account they balance each other out. There is also the question of parity which a co-offender receiving a different sentence to the other co-offender may harbour, as the Court of Criminal Appeal says, a justifiable sense of grievance.
…
However, I accept the Crown's submission that to do otherwise than give similar sentences than that of [SS] would be wrong and I would fall into appealable error. And for the reasons that I read out from the Crown's submission I think this correct, that the youth of [SS] and even though it is only twelve months.
Well I did give [SS] eight years in the head sentence. I took off twenty five per cent, which made it six years, for an early plea.
I believe that [JC] is entitled to another twenty five per cent for assistance, so that will make an eight year head sentence and fifty per cent off that makes it four years."
72 JC contended that the Judge was unduly influenced by the fact that SS was 12 months younger than he. JC argued that his Honour failed to recognise that there were significant differences in the objective criminality of his offending and his subjective case to that of SS. Having the same starting points for the sentences, JC submitted, gave rise to a justifiable sense of grievance. A number of discrete matters were raised which were said to give rise to a difference between the co-offenders and called for in the case of JC a lesser notional starting point.
73 The first matter, JC argued, was that it was SS who caused the injuries to the victims and it was SS who returned to assault Abdul Khan. The level of violence of his co-offender, JC submitted, was significantly greater than his and as a consequence his culpability was less. JC complained that the Judge's finding that the striking of Abdul Khan by JC with the baseball bat caused "him to have internal bleeding" was not supported by the report of Dr Taoum.
74 SS struck Kasim Khan to the head with a crowbar. The Judge found that JC struck Abdul Khan three times to the head with a baseball bat. After Abdul Khan threw a chair at SS, SS hit him twice in the head with the crowbar. Following the assault, Abdul Khan was treated initially at Hawkesbury Hospital and then transferred to Nepean Hospital where he was seen by Dr Taoum who noted that a CT scan of the patient's head showed occipital bone fracture and a small cranial haemorrhage. During oral argument in this Court, JC pointed to the recording in Dr Taoum's report that Abdul Khan described being hit by a "metal bar" and contended that the injuries sustained by the victim were not caused by him.
75 Little weight in my view can be given to the reliability of the history in the report as the victim had been struck heavily both by a crowbar and baseball bat and as the report reveals was initially unable to remember his date of birth. The cause of Mr Khan's injuries could not be confined to the blows struck by JC.
76 Although there are cases where the culpability of participants in a joint criminal enterprise may be differentiated this was not such a case. A high level of violence was contemplated by each of the participants in the commission of the robbery. JC and SS were armed as six days earlier they had been repulsed by the store attendants who had a cricket bat, a brick and broom. The acts of violence committed by each of them were intended to eliminate any resistance that might be offered. It seems to me that in the present case where violence was contemplated and violence was used in the commission of the offence, JC's culpability is not reduced because of the level of violence that he employed was not as high as that of his co-offender. It was also unnecessary for the Judge to determine which of the blows that struck the victim caused his injuries.
77 The second discrete matter of difference, JC contended, was the failure by the Judge to reduce his culpability by the finding of duress. This argument was supported, it was said, by the same notional starting point of the head sentence of SS. JC submitted that the level of duress was extreme as it was committed after he was awoken by Byrne at knife point who ordered him to commit the offence. Byrne gave him the baseball bat which he (JC) used in the robbery.
78 Section 21A(3)(d) of the Crimes (Sentencing Procedure) Act provides that where an offender is acting under duress a sentencing Judge is to take this into account as a mitigating factor. This was recognised by the Judge when he said (ROS at 14):
"I do take into account, and I am aware of, a mitigating factor; he was acting under duress. I am convinced that this was so, even if there was little evidence of it actually. I am convinced that [JC] acted believing he was acting under duress."
79 His Honour had earlier in his remarks quoted extensively from those parts of the Juvenile Justice report in which duress had been raised by JC.
80 As has been recounted at [19], the applicant SS had also testified during his sentence proceedings of threats made to him and of his fears for his safety and the safety of his family. The Judge recited what SS had told the author of the Juvenile Justice report about these matters and the letter written by SS to him which included the passage quoted at [25] when he came to sentence SS. Although no specific finding was made of duress, there is no reason to think that the Judge did not take it into account.
81 The views expressed by the Judge in the passage quoted at [71] suggest that his Honour saw no reason to distinguish between the levels of pressure placed upon either of the applicants. The significance of duress as a mitigating factor was to my mind significantly reduced in the case of both co-offenders by what occurred when the robbery was carried out. Shortly after entering the store SS struck Kasim Khan with the crowbar and JC struck Abdul Khan with the baseball bat. Each of the victims was struck before any resistance was offered. In my opinion the applicants could not be considered to be acting under duress when they engaged in the violence which was the gravamen of their offending on 28 December 2005.
82 I neither consider that in the case of JC insufficient weight has been given by His Honour to the finding of duress nor has the notion of equal justice been violated by His Honour's consideration of this factor of mitigation.
83 The main differences between the offenders were their age and prior record. SS committed the offences whilst subject to conditional liberty - a factor of aggravation: s 21A(2)(i) of the Crimes (Sentencing Procedure) Act. JC was a first offender - a factor of mitigation: s 21A(3)(f) of the Crimes (Sentencing Procedure) Act. If all things had been equal, JC would have been entitled to a lesser sentence than his co-offender by reason of those factors. All things were not equal as those factors had to be balanced against the age difference and consequent immaturity between JC and SS. JC was almost 16 months older (and not 12 months as identified by the Judge) than SS. JC was 17 years old and SS 15 years old at the time of the offending.
84 JC argued that before age could be considered a factor to warrant a difference in sentence it had to be large and significant. The Court was referred to the age difference of 2 years 7 months in R v Rushby [1999] NSWCCA 104 which Barr J (with whom McInerney J agreed) considered at [26] to be a "very substantial disparity in chronological ages of the offenders and a corresponding disparity in their maturity."
85 It is pointless to attempt to precisely identify what might be considered to be a sufficient gap in the chronological age of co-offenders to justify a difference in their sentences. It is a matter of evaluation for a sentencing Judge which will include considerations of the stage of development, level of maturity and education of the respective young offenders as well as their chronological ages.
86 The Judge was in the best position to make such an evaluation as he had seen and heard both young persons giving evidence before him. The Judge's evaluation on this issue was essentially one of fact and akin to the exercise of a discretion. As such, the normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 400, applies. The applicant JC has not demonstrated, in my opinion, that the Judge's evaluation was not open on the evidence, or that some wrong principle was applied, or irrelevant consideration taken into account (or relevant consideration overlooked).
87 In all the circumstances, it can neither be said that the applicant JC has a justifiable sense of grievance about the differences between the sentences nor that the Judge failed to give sufficient weight to his findings of mitigating factors.
88 Grounds 1 and 2 of the appeal have not been established.