TF v R

Court of Criminal Appeal (NSW)|2020-08-17|Before: Basten JA, Rothman J, Price J

Judgment

BASTEN JA: The applicant, TF, is now 20 years of age. He entered pleas of guilty two years ago in relation to offences committed in January 2018, shortly before his eighteenth birthday. There is a statutory prohibition on publication of material which would identify him. [1]
In August 2019 the applicant was sentenced by Judge Colefax SC in the Campbelltown District Court to an aggregate sentence for a number of offences, including five offences of robbery, and an aggravated taking of a motor vehicle with a person in it. He was sentenced to 10 years imprisonment to date from 16 February 2018, with a non-parole period of 5 years.
An application for leave to appeal against sentence, filed on 19 May 2020 identified three grounds, namely "rejecting, overlooking or ignoring aspects of disadvantage in the applicant's childhood" (ground 1), "not applying principles associated with the applicant's low cognitive functioning" (ground 2) and imposing a sentence which was manifestly excessive "for a young offender with low cognitive ability" (ground 3).
The primary judge sentenced four offenders, each of whom had been involved in the course of offending for which the applicant was sentenced. Not all offenders were involved in every offence. In the result, the sentencing judgment was longer than it would have been had the judge dealt with fewer offenders; nevertheless, the approach taken was entirely appropriate, if not inevitable.

Ground 1 - disadvantageous childhood

Ground 1 was framed in terms which indicated uncertainty as to whether the judge had overlooked, ignored or positively rejected "aspects of disadvantage" in the applicant's childhood. In substance the ground assumed that there was material which should have been taken into account but was not. The inference that it was not taken into account was drawn from the absence of reference to it in the sentencing judgment.
The first step is to identify the aspects of disadvantage which were relied upon. Importantly, they did not involve what was described as "the applicant's low cognitive functioning". Ground 2 dealt with that characteristic, on the basis that it was taken into account, but that it was not properly addressed. The judge expressly stated that the applicant had "low-cognitive functioning." [3] In submissions on sentencing, the applicant's counsel referred to his "background of deprivation", that his childhood had been marred by "exposure to violence from an early age", and the fact that when residing with his father he was exposed to drug use and violence. His counsel said that he "fell off the rails" at a very early age on the death of his two grandmothers. [4]
The material relied upon to support these submissions was to be found in a report prepared by a forensic psychologist, Ms Sarah Brann, dated 5 November 2018. The description of background history, which indicated that, during weekend contact with his father, the applicant had been exposed to "junkies, fighting, daily screaming and glass smashing", was entirely based on his account to the psychologist. [5] He did not give evidence on sentence. A report from Juvenile Justice, which included reports of interviews with both his mother and father, provided no direct support for his account, although it did identify his secondary education as "marked by repeated suspensions for disruptive and oppositional behaviour". The cause of his oppositional behaviour was not identified.
It is clear that the sentencing judge was familiar with the Juvenile Justice report: he referred to it expressly noting that the applicant had failed to engage with psychological appointments and continued to engage in misconduct whilst in custody. He noted that the applicant was "currently assessed at the highest risk classification in New South Wales Juvenile Justice because of [his] behaviour." [6] He distinguished the applicant from two other co-offenders who had serious mental health issues (apart from drug issues). [7] He referred to the applicant as being the exception to the statement that for each it would be his first time in custody. [8] He identified the Juvenile Justice report as noting the applicant's lack of remorse. He accepted that assessment. [9]
The report by the forensic psychologist did not take the matter much further. She concluded that the applicant "did not meet criteria for any mental health disorders currently [nor] at the time of committing the offences". [10] She concluded that "[t]he potential for intellectual disability cannot yet be ruled out". [11] She noted the uncontested fact that the applicant had been abusing substances and alcohol and that his "abuse of substances appeared to arise in the context of his social environment as a teenager who was attempting to impress older peers, as well as cope with emotional issues stemming from his home environment."
There was letter from a family friend, and a reference from his mother. The latter expressed a possible concern that he had been sexually abused at school, but, as the applicant had denied any abuse to her, the matter could not be taken further. Accordingly, apart from his own statement, there was little to demonstrate relevant aspects of disadvantage of a significant nature. The sentencing judge said of all the offenders that they had "engaged at an early time in life with illegal drugs and alcohol - and in significant quantities. … Your drug use has retarded your education and impeded your work history." [12] The judge then expressly identified the efforts that three (not including the applicant) had made to address drug issues and demonstrate insight into their problems. The applicant was expressly excluded from this group, as someone who lacked insight. [13]
Although the applicant's counsel at the sentencing hearing referred to the principle identified by the High Court in Bugmy v The Queen, [14] there was little if any evidence, other than the unconfirmed reporting to the forensic psychologist, that he had suffered relevant disadvantage in his early life. Such disadvantage as had been suffered as a result of weekend stays with his father, who had mental health issues, did not rise to the level of disadvantage which may render specific or general deterrence of limited significance. There was no reason for the sentencing judge to say more than he did about the applicant's childhood and upbringing.
The careful manner in which the sentencing judge distinguished observations made in relation to particular offenders demonstrates that he did not consider that the applicant satisfied the criteria for identifying a disadvantaged childhood. Indeed, he expressly stated of three of the co-offenders that they had "what is correctly described as a dysfunctional upbringing and, with it, a reduction in moral culpability for your offending." [15] The omission of the applicant from this finding was undoubtedly deliberate. The judge did not ignore or overlook the limited evidence of disadvantageous upbringing; rather he rejected it as inadequate to engage the relevant principles of mitigation. He was entitled to take that approach.

Ground 2

It was not in doubt that the trial judge took into account what had been described as low-cognitive ability. The forensic psychologist appeared to distinguish that assessment from intellectual disability. The basis of ground 2 is that this consideration, together with his general immaturity for his age, indicated that a sentence of imprisonment would weigh more heavily on him than on others, a factor that was not reflected in the judgment or the sentence.
There is no doubt that the sentencing judge was alert to this factor. He made a finding of special circumstances, pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 (NSW), so that he could direct that the applicant's sentence be served as a juvenile offender, expressly stating that in the applicant's case, that was to continue "until he turns 21 years old", on the basis that there would otherwise be at an unacceptable risk of physical or psychological harm. [16] This finding was an appropriate recognition of the issue raised on behalf of the applicant; it was an appropriate response and no more was required of the sentencing judge in the circumstances of the case.

Ground 3 - manifest excess

There is no doubt that the non-parole period fixed by the sentencing judge (5 years) was comfortably within a range of appropriate minimum terms, given the nature of the offending. Of greater concern is the head sentence of 10 years imprisonment. This disparity was permitted by a finding of special circumstances which relieved the sentencing judge of the obligation to impose an additional term on the non-parole period, not exceeding one-third of the non-parole period. Absent that finding, the appropriate ratio would have resulted in an overall sentence of 6 years 8 months.
The sentencing judge considered that this offender's prospects of effective rehabilitation were "very guarded indeed." [17] In such a case, the imposition of a lengthy additional term may lead to a significant element of longer incarceration. It cannot be assumed that an offender with poor prospects of rehabilitation will be released at the expiry of his or her non-parole period. Further, failure to comply with the requirements of conditional liberty in the past may suggest a similar failure in the future, with the potential for a further lengthy period of incarceration.
While the non-parole period in this case was an appropriate reflection of the culpability of the offender, a period of 10 years imprisonment was, in my view, excessive. I would reduce the overall sentence to 7 years 6 months by imposing an additional term of 2 years 6 months on the non-parole period of 5 years. As the additional term is 50% of the non-parole period, the finding of special circumstances should be retained.
ROTHMAN J: The applicant, TF, seeks leave to appeal against the sentence imposed upon him by his Honour Judge Colefax SC on 23 August 2019 in the District Court at Campbelltown. Because the applicant was under 18 years of age at the time of the offence, the law requires that his identity and any material that would identify him be suppressed.
The applicant was sentenced to an aggregate sentence of 10 years' imprisonment with a non-parole period of 5 years' imprisonment, commencing 16 February 2018. The sentence imposed reflects a 25% discount for the utilitarian value of a plea of guilty at the earliest opportunity. The aggregate sentence related to six offences, the first of which was imposed in circumstances where a further offence of break into a dwelling house or building to commit a serious indictable offence was notified on a Form 1. The offences to which the applicant pleaded guilty are: 1. Sequence 2: Robbery armed with an offensive weapon causing wounding, contrary to s 98 of the Crimes Act 1900 (NSW), the maximum penalty for which is 25 years' imprisonment and for which there is a standard non-parole period of 7 years in prison and; 2. Sequence 3: Robbery in company whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act, for which the maximum sentence is 25 years' imprisonment; 3. Sequence 4: Robbery in company whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act; 4. Sequence 9: Robbery in company whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act; 5. Sequence 10: Robbery armed with an offensive weapon, contrary to s 97(1) of the Crimes Act, for which the maximum penalty is 20 years' imprisonment; and 6. Sequence 11: Aggravated take motor vehicle with person in it, in company, contrary to s 154C(2) of the Crimes Act, for which the maximum penalty is 14 years' imprisonment and for which there is prescribed a standard non-parole period of 5 years' imprisonment. 7. As already stated a further offence of break and enter a dwelling house or building to commit a serious indictable offence, contrary to s 112(1)(a) of the Crimes Act, which originally was Sequence 1, was placed on a Form 1 and taken into account in relation to the sentence to be imposed for Sequence 2. The maximum penalty prescribed for the Form 1 offence is 14 years imprisonment.

Background Facts

The applicant was born on 30 March 2000 and was just under the age of 18 at the time of the offences. All matters were dealt with according to law, rather than in the Children's Court, due to the nature and seriousness of the offences.
The applicant committed the majority of the offences with other co-offenders who were sentenced on the same day. In relation to Sequences 2, 3 and 4, the applicant committed these offences in the month of January 2018 with co-offenders AT and KJ, who were also young offenders at the time.
In relation to Sequences 9 and 10, the applicant committed those offences in the month of February 2018, again in the company of KJ. The applicant acted alone in committing the offences referred to in the Form 1 offence (Sequence 1) and the offence which is charged in Sequence 11. Sequence 11 was a separate principal offence relating to the conduct in Sequence 10 and occurred in circumstances where the applicant took and drove a motor vehicle from an Uber driver, whom he had previously robbed. The previous robbery had been, as stated, in the company of KJ.
As earlier stated, the sentencing judge imposed an aggregate sentence of 10 years' imprisonment with a non-parole period of 5 years' imprisonment. The sentence commenced on 16 February 2018 and reflects a 25% discount for the utilitarian value of a plea of guilty at the earliest opportunity. The indicative sentences for the offences were in accordance with the following table: Seq 2 and seq 1 (Form 1) 8 years' imprisonment - 25% = 6 years' imprisonment Seq 3 7 years' imprisonment - 25% = 5 years, 3 months' imprisonment Seq 4 7 years' imprisonment - 25% = 5 years, 3 months' imprisonment Seq 9 7 years, 6 months' imprisonment - 25% = 5 years, 7 months' imprisonment Seq 10 6 years, 6 months' imprisonment - 25% = 4 years, 6 months' imprisonment Seq 11 5 years' imprisonment - 25% = 3 years, 9 months' imprisonment

Grounds of Appeal

The applicant raises three grounds of appeal on which he relies for both leave to appeal and the appeal, if leave be granted. Those grounds are: Ground 1: His Honour erred in rejecting, overlooking or ignoring aspects of disadvantage in the applicant's childhood; Ground 2: His Honour erred in not applying principles associated with the applicant's low cognitive functioning; and Ground 3: The sentence was manifestly excessive for a young offender with low cognitive ability.

Relevant Facts

Further to the foregoing brief recitation or summary, it is necessary to set out more fully the factual basis for the sentencing. The applicant and the Crown agreed on facts to submit to the Court, which were tendered and marked Exhibit A (hereinafter, the "Agreed Facts").
In brief, the applicant was one of four persons sentenced in connection with a spate of armed robberies conducted at petrol stations in the Sydney metropolitan area (Sequences 2, 3, 4 and 9). A fourth co-offender, EW, committed a service station robbery in the company of KJ. The offences committed by each of the offenders were primarily motivated by financial gain to finance their drug habits and, in the case of the applicant, also "for his own thrill-seeking benefit".
By way of example, the Sequence 2 offence involved the applicant, AT and KJ entering the Speedway Service Station in Kings Langley, wearing face coverings and gloves. They were also armed with weapons, including a shortened firearm; a large sword; and an unknown weapon. One offender pointed the firearm at the service station attendant (the victim) next to the glass sliding door, whilst the other two entered the station and took cigarettes from a cabinet.
One offender screamed to the victim to locate and remove money from the safe. The victim opened the till causing a computer to fall. The victim attempted to save the computer and, in the process, was struck with a large sword by one of the offenders, causing the victim to scream: "you cut my thumb".
The offenders removed $1,162.40 from the till and took away a cigarette tray containing packets of cigarettes. The victim suffered a deep laceration to the right thumb, which required plastic surgery, as well as a superficial laceration to the right forearm. This was, according to the sentencing judge, a mid-range offence. The event was held to be aggravated because it was committed in company; the applicant was on conditional liberty; and the victim was vulnerable.
The offences were summarised by the Crown in the Written Submissions to this Court, which summary accurately reflects the Agreed Facts. I recite the table of offences and findings at [8] of the Crown's Written Submissions, excluding the summary in respect of Sequence 2, which has already been dealt with. Summary of Offences and Findings Offences Particulars Seq 2 … … Seq 3 Armed robbery in company with dangerous weapon On 3 January 2018 at about 9.46pm, TF, KJ and AT entered the Metro Petroleum Service Station at 59 The Crescent, Toongabbie wearing face coverings and gloves. One offender carried a shortened firearm in one hand and a large bag in the other. Another was armed with a large machete. The first offender pointed the firearm directly at the service attendant victim and demanded that he open the till where upon the offender removed the cash. This offender also demanded to know where the safe was and threatened to shoot the victim. The victim told the offenders he was only aware of the cigarettes and the money from the till, which he told the offenders to take. The offenders proceeded to load bags with cigarettes. The victim was then pulled to the ground where he lay under the till. The offenders who were carrying the sword and the firearm continued to scream threats to shoot the victim unless he showed them the safe. One offender pulled the victims hands behind his back and attempted to tape them together. The victim was moved to a wash room where one of the offenders poured a soft drink over the victim's head and into the victim's eyes after pulling his head back. The offenders then left the store and barricaded the victim inside with a trolley containing water bottles positioned in front of the door. The total cash taken from the till amounted to $650. The value of the cigarettes taken were estimated to be $18,000. This was a mid-range offence. The offence was aggravated because of the use of actual violence, the applicant was on conditional liberty and the victim was vulnerable. S 97(2) Crimes Act 1900 Seq 4 Armed robbery with dangerous weapon offensive weapon On 8 January 2018 at about 9.00pm, TF, KJ and AT attended the Speedway petrol station, North Ryde wearing face coverings and gloves. One offender carried a shortened firearm and the other a machete. The offender with the firearm pushed open the front door as the victim was closing the store and yelled at him to sit down on the ground. He issued threats to shoot and kill him. The victim fearfully complied. Two offenders attempted to open the till while the offender with the firearm stood in front of the victim and pointed the gun at his face. The victim was then ordered to open the till. The money was removed from the till by the man carrying the machete. The offender with the firearm who was still pointing the gun at the victim's face then instructed the victim to sit back down on the ground to which he complied. A set of keys was demanded of the victim to open a safe. The victim replied he did not have the keys and begged to be left alone. The offender with the machete then stole 70-80 packets of cigarettes (which were not valued). The victim was ordered to hand over his mobile phone, to which he complied. The cash stolen amounted to $827. The offence was estimated to be a mid-range offence. The offence was aggravated because of the use of actual violence, the applicant was on conditional liberty and the victim was vulnerable. S 97(2) Crimes Act 1900 Seq 9 Armed robbery in company with dangerous weapon On 16 February at 8.40pm, TF and KJ entered a convenience store on Mowbray Road, Lane Cove wearing balaclavas and gloves. One was armed with a firearm while the other was armed with a large knife about 60cm in length. The offender with the firearm walked toward the shop keeper demanding money. The other offender placed a knife against the upper back of the victim as he walked over to the till. The victim suffered a small laceration to his back. The offender with the firearm then walked into a house attached to the shop. The offender with the knife emptied the till and then directed the victim to go into the house. A search of the dwelling was undertaken with items removed from one bedroom. The victim managed to escape from the shop. The offenders chased the victim for a short period but did not catch up with him. A total of $400 was removed from the till and 70-80 packets of cigarettes were taken. Both offenders left the scene in a stolen vehicle which was pulled over and searched by police shortly after leaving the shop. The firearm was recovered and found to be an antique weapon that was no longer in working order. The offence was estimated at slightly below mid-range. The offence was held to be aggravated because the offence was committed in the home of the victim, the applicant was on conditional liberty at the time and the victim was vulnerable. S 97(2) Crimes Act 1900 Seq 10 Armed robbery with On 9 February 2018 at 5.00pm, TF and KJ entered an Uber vehicle at an appointed address wearing gloves. TF was armed with a knife and sat in the front seat. TF demanded the keys to the car. KJ then placed his arm around the seat and put the blade of another knife to the Uber driver's neck. The victim tried to wrest [sic: read 'wrestle'] KJ's arm from around his neck, which led to KJ striking the victim on the victim's right hand causing a laceration. TF threatened to stab the victim and made a stabbing motion resulting in the tip of the blade hitting the victim's chest. TF grabbed the victim's mobile phone and demanded the victim's wallet containing the victim's NSW driver's licence and various cards, which was provided under duress. The victim was then ordered out of the vehicle by the offenders and told to lie down on the road. In this matter, the offence was said to be motivated by a dislike of the Uber driver. The offence was aggravated because it was committed in company, the applicant was on conditional liberty and the victim was vulnerable. offensive weapon S 97(1) Crimes Act 1900 Seq 11 Aggravated take M/V with person in it whilst This offence is related to seq 10. TF jumped into the driver's seat and drove the vehicle away. Both offences were estimated to be just below mid-range. The offence was aggravated because it was committed in company, the applicant was on conditional liberty and the victim was vulnerable. in company S 154C(2) Crimes Act 1900 Form 1 Seq 1 Break and enter and commit a serious Between 6 and 7 January 2018 during the hours of 11.30pm and 8.00am, TF broke into a detached garage of a residential premises at Lyons Road, Five Dock and stole a 2013 grey Kia Rio hatchback, NSW reg. no. CQ079E. This offence was said to be aggravated because it was a partial home invasion. indictable offence and steal to value < $60,000 S 112(1)(a) Crimes

Applicant's Case on Sentence

The applicant tendered before the sentencing judge a bundle of documents [18] containing: a Psychological Report of Ms Sarah Brann, dated 5 November 2018; a letter from the applicant; a letter from the applicant's godmother, dated 21 October 2018; and an Affidavit from the applicant's mother, dated 19 March 2019.
The psychological report dealt with the applicant's childhood and upbringing, psychological disorders and other issues.
Relevantly, the applicant's parents separated from a violent relationship when the applicant was very young. The care arrangements saw the applicant spend time with his father on the weekend. This time with his father occurred in the father's premises, which was a public housing property, and saw the applicant exposed to a dysfunctional social environment.
The applicant's father had been in the armed services and experienced Post-Traumatic Stress Disorder and other mental health issues. The applicant's father also espoused negative and anti-social attitudes towards police, based on a perceived injustice when they intervened during a domestic violence incident.
The applicant acknowledged a deterioration in his behaviour, associated with the death of both his grandmothers when he was 11. He noted that his mother was ineffective in her discipline and although his father was aggressive to the point of being physical, the applicant was also unresponsive to his attempts at discipline.
The applicant described past diagnoses of mental health conditions such as ADHD and depression, as well as being medicated. The report did not identify any mental health disorders at the time of the offending or at the time of the assessment.
The applicant described abusing substances since he was 14 years of age and linked his offending to drug taking. He asserted that he had no ongoing issues in this regard and, although he said he would be prepared to participate in rehabilitation programs, the applicant would not consent to a residential centre.
The applicant's account of the offending demonstrated limited insight or empathy for the victims. He did, however, identify harm caused to one of the victims and observed that the offending was "stupid".
Cognitive testing placed the applicant in the extremely low range of cognitive ability and indicated a mild intellectual disability. Although further testing was recommended for a formal diagnosis, Ms Brann noted that these results may be reflective of the applicant's disrupted education and the impact of drug use on neurocognitive development. Ms Brann observed that his functioning is: "Likely to limit his ability to navigate the complexities of social interactions, to engage in problem-solving, language-based reasoning, negotiation, and act in goal-directed ways that considered short and long-term consequences for himself and others. His cognitive capacity may also render him more vulnerable to the influence of antisocial peers". [19]
The Psychological Report specifically identified heightened risk factors for the applicant, if exposed to an adult prison. [20]

Remarks on Sentence

As earlier indicated, the applicant was sentenced with three co-offenders. Each offender was involved in slightly different groups of offences and none of them was involved in all of the same offences as the applicant. As a consequence, the sentencing judge was required to address a deal of material that did not relate to this applicant.
There is no issue that his Honour accurately summarised the charges for sentence. [21] His Honour remarked that the applicant was to be dealt with according to law, given the seriousness of the offences, but also noted that the sentencing principles in s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) remained relevant.
In that respect, general deterrence, according to the sentencing judge, is to be regarded as having less importance than rehabilitation and, for those offenders with mental health issues, general deterrence is also of reduced significance. Nevertheless, his Honour further remarked that general deterrence does still have a role to play.
The learned sentencing judge noted that specific deterrence and a need to protect the community are considerations which are fully engaged along with rehabilitation.
His Honour then set out the maximum penalty for each charge proffered against the applicant and, in relation to the armed robbery and robbery in company offences, referred to the guideline judgement in R v Henry. [22]
The sentencing judge assessed the objective seriousness of the robbery in company [23] committed on 2 January 2018 as mid-range and being additionally aggravated for the applicant and his co-offender on that count because it was committed in company; the applicant was on conditional liberty; and the victim was vulnerable. [24]
After summarising the facts that gave rise to the charge preferred in Sequence 3, again, robbery in company, committed on 3 January 2018, the sentencing judge assessed this offence also, in terms of its objective seriousness, as in the mid-range and also aggravated because of the use of actual violence; that the applicant was on conditional liberty; and, again, the victim was vulnerable. [25]
His Honour summarised the offence that was notified on the Form 1 and acknowledged that it would result in a meaningful increase in the sentence imposed for the principal offence.
Relevantly, the sentencing judge summarised the facts giving rise to Sequence 4, robbery in company, whilst armed with an offensive weapon, that was committed on 8 January 2018 [26] and assessed the objective seriousness of the offence as mid-range. The sentencing judge also noted that it was additionally aggravated, in relation to the applicant, because of the use of actual violence; that he was on conditional liberty; and the victim was vulnerable. [27]
The sentencing judge summarised the armed robbery and aggravated take motor vehicle offences, [28] and came to the conclusion, in relation to the armed robbery, that it was slightly below a mid-range offence; [29] additionally aggravated because it was committed in company; on conditional liberty; and the victim was vulnerable. [30] In relation to the aggravated motor vehicle offence, the sentencing judge determined that it was below mid-range in objective seriousness [31] and additionally aggravated because it was committed in company; on conditional liberty; and the victim was vulnerable. [32]
Lastly, the sentencing judge dealt with the robbery in company with a dangerous weapon, [33] and came to the conclusion that it was slightly below mid-range offence in objective seriousness [34] and was additionally aggravated because: it was partly committed in the home of the victim; it was committed on conditional liberty; and the victim was vulnerable. [35]
As to subjective circumstances, the sentencing judge noted: the age of the applicant as under 18 years of age and at 17 at the time of offending; [36] the applicant's limited education; [37] the applicant's abuse of substances from an early age and that the offending was motivated to support that behaviour; [38] lack of engagement in rehabilitation opportunities and a lack of insight; [39] and the applicant's significant criminal history. [40]
The sentencing judge concluded that the applicant had serious mental health issues and low-cognitive functioning. [41] His Honour declined to make a finding of genuine remorse and determined that the applicant's prospects of rehabilitation were guarded.
As earlier stated, his Honour imposed a sentence that reflected a 25% discount for the utilitarian value of a plea of guilty at the earliest opportunity; came to the conclusion that imprisonment was the only sentencing option available; but found special circumstances based upon the applicant's age and the desirability to promote rehabilitation during an extended period of parole. His Honour issued orders under s 19 of the Children (Criminal Proceedings) Act that the sentence was to be served as a juvenile offender until the age of 21 on the basis of the unacceptable risk that the offender would suffer physical or psychological harm.

Ground 1: Failure to reflect the applicant's disadvantage in childhood

Submissions

The applicant submits that the sentencing judge erred in rejecting, overlooking or ignoring the applicant's disadvantaged childhood. The applicant refers to the remarks on sentence and draws attention to the fact that there is no reference to the applicant's developmental background.
The applicant submits that to ignore or to overlook that feature of the applicant's subjective case would unequivocally represent a failure to take into account a relevant consideration. In so submitting, the applicant relies on authority as to matters that are not addressed in remarks. [42]
The applicant submits that the Court should assume that his Honour has not considered the deprived background, in circumstances where the sentencing judge has not referred to that issue, even though the sentencing judge referred to the issue in relation to other co-offenders. The applicant submits that the developmental disadvantage suffered by the applicant ameliorates the assessment of moral culpability.
Moreover, the issue was one that was central to the subjective circumstances of the applicant, as submitted to the sentencing judge, and, as a consequence, attention to the issue should be expected.
The Crown submits that the judge, while not specifically mentioning the applicant's background, reports or character references, should not be taken not to have read or considered the issues.
The Crown also submits that the applicant's upbringing was different from that of the co-offenders and was not substantially dysfunctional, because the applicant had lived mainly with his mother in a "middle-class" setting.
The applicant described his mother as a person who both cared for and supported him. He was also looked after by both grandmothers (although each of them died when he was about 11 years of age, which is omitted from the submissions of the Crown). The Crown submits that all three women were caring role models and, in the case of the mother, a resourceful one who turned to her own community networks to find meaningful employment for her son. The separation of his parents does not justify a description of the applicant's upbringing as dysfunctional, according to the Crown.
The Crown points to the reference by the sentencing judge to the applicant having low cognitive functioning, which discloses that his Honour had read the material. It also refers to the finding of special circumstances to assist the applicant in his rehabilitation and the orders for the serving of his sentence at a juvenile detention facility, for the purpose of having more suitable educational and other programs available. Fundamentally, the Crown submits that the failure of the sentencing judge to deal with the issue of disadvantage or dysfunction is a feature more of its relative weight, compared to the objective factors, than as a feature of ignorance or oversight.

Ground 2: Failure to apply principles relating to low cognitive functioning as a factor in sentencing

Submissions

The applicant submits that his Honour did not correctly apply principle in sentencing the applicant, who has low cognitive functioning. His Honour did refer to the applicant's cognitive functioning, but, according to the applicant's submission, only briefly and in conjunction with another co-offender, where his Honour said: "Two of you have serious mental health issues (apart from your drug issues). [AT], you have schizoaffective disorder; and [the applicant], you have low-cognitive functioning." [43]
At no stage did his Honour specifically address the relationship between the applicant's low cognitive functioning and the offending, according to the submissions of the applicant. The only potential indication of his Honour's approach, according to the submissions, in this regard, arises from a generic comment listed at the outset of his remarks, which was: "And I have also noted for offenders who have mental health issues that general deterrence is of reduced significance. Nevertheless, it still does have a role to play. But, additionally, specific deterrence and a need to protect the community are considerations which are fully engaged, along with rehabilitation." [44]
The applicant submits that the reference to the applicant's cognitive functioning and the above generic comment on the manner in which mental health issues are to be considered, do not adequately deal with the potential relevance of such a condition on sentence.
Moreover, the general statement on the relevance of mental health issues, assuming, for present purposes, that low cognitive functioning is a mental health issue, is not comprehensive and does not make reference to the potential impact such conditions may have on moral culpability nor how such circumstances may affect the experience of custody. [45]
Given his age, the applicant submits that the long-term protection of the community would be best served through the applicant's rehabilitation. The psychological evidence indicated that the combination of the applicant's youth and low cognitive functioning meant the applicant serving time in an adult prison was likely to impede his rehabilitation and development at a crucial stage of his life. This aspect was not dealt with in his Honour's remarks.
In relation to Ground 2, the Crown submitted that the sentencing judge did find and refer to the applicant's low cognitive functioning. [46] Therefore, on the Crown submission, by inference, even though unstated, the sentencing judge was referring to and was considering Ms Brann's psychological report, as this is the only document that refers to the issue of low cognitive function. That finding, on the submission of the Crown, was based on poor results on partially completed testing (due to the testing being performed by video link); stopped short of a finding that the applicant had an intellectual disability; and the psychologist noted that an intellectual disability would be somewhat inconsistent with the applicant's verbal skills during the interview.
Such a conclusion would, on the Crown submission, also be at odds with the applicant's educational achievements whilst in custody. Further, there is the unexplored aspect relating to his drug use and its effect on his cognitive functioning, along with the fact that he had missed a great deal of schooling.
On the Crown's submission, there was insufficient evidence to establish, on the balance of probabilities, any causal connection between low cognitive function and the offending. Had there been, the Court would also have been required to consider whether this diminished the applicant's prospects of rehabilitation and/or placed him at a higher level of risk of reoffending.

Submissions

The applicant relies upon certain features of the reasoning of the sentencing judge to suggest that the sentencing remarks indicate that the sentencing discretion miscarried. The applicant submits that, although his Honour's remarks on sentence are lengthy, if the remarks that relate solely to the applicant are extracted, [47] it can be seen that they are very brief. The applicant submits that such brevity holds the potential to obscure other misapplications of relevant principle that may have contributed to a manifestly excessive sentence.
The applicant points to the very brief reference to the guideline judgment in R v Henry [48] as a most pertinent concern in this regard. The applicant then relies on Yildiz [49] and the importance of relative youth even within the guideline, such that youth, can continue to be an important factor in sentencing, despite the fact that the guideline specifically applies to a youthful offender.
Ultimately, the applicant submits that the decade-long head sentence might be described as "crushing" for an offender of the applicant's age in that it represents half of his life so far. [50]
The Crown emphasises that the applicant was part of a joint criminal enterprise involving two other co-offenders who committed a spate of violent armed robberies in a compressed time period during January and February 2018. The applicant acted alone in committing a further motor vehicle theft at home premises. [51]
All offences were committed in circumstances of aggravation: the use of violence; being in company; breaches of conditional liberty; and the vulnerability of the victims, including one who experienced serious harm.
The Crown also relies upon the criminal history of the applicant, which the Crown described as "significant", and which includes juvenile offending of violence, weapons and property offences, any one of which would disentitle him to leniency. [52]
His Honour also noted, on the Crown submission, the assessment of the applicant as being in the highest risk classification in juvenile detention due to his poor behaviour in custody. [53] The Crown submits that the offences involve the use of disguises and weapons. Each of the offences was motivated by greed with a purpose of stealing money or saleable items, such as cigarettes, to fund drug habits. The applicant was under the influence of intoxicating substances at the time and was found to be remorseless in the commission of his offending.

Consideration

The sentencing judge was faced with a very difficult sentencing task involving a significant number of offenders, each of whom was involved, in varying ways, in a number of offences. The spate of robberies that occurred in January and February 2018 was significant and the requirement to sentence four offenders relating to seven different indictments was not uncomplicated.
From time to time, a sentencing judge may omit reference to obvious and trite propositions. Nevertheless, the reasons provided for the handing down of a sentence are an essential aspect of the criminal process allowing the criminal law to be administered with a degree of transparency and requires both the offender and the Crown to be able to understand how the sentencing judge arrived at the sentence ultimately imposed. This Court said: [54] "[52] It is important to bear in mind the multiple purposes of a court in giving a sentence judgment, purposes which all point to a requirement for transparency, but not for mere recitation of law and principle. The offender and the Crown must both be enabled to understand how the sentencing judge arrived at the sentence ultimately imposed, and to ascertain whether there has been some misapplication of fact or principle, or some other error, such that there may be an available appeal on a matter of substance. Any appellate court considering whether such error has occurred must be able to determine a claim of error by considering the sentence judgment. [53] In this regard, the basis of the requirement for reasons in a sentence judgment does not greatly differ from that applicable to any judgment of any court. In criminal cases however, sentencing remarks serve other, important, purposes and, to fulfil those purposes, such judgments must be intelligible to the lay listener or reader, and accessible to the community. The community, a term which encompasses those who have a direct interest in a particular crime, such as any victim of it, have a legitimate interest in the work of the courts, and sentencing judgments are one means by which the community may be informed of that work. [54] As an overall statement, a sentence judgment in a criminal case must make it clear to those directly involved, and to the community more broadly, why the particular sentence was imposed in the circumstances of that case. [55] None of those purposes requires a court to refer directly and in terms to every statutory provision considered or applied, and to every principle of sentencing law regarded as relevant. Indeed, where clarity of expression is important, to permit the parties, involved persons, and the community to understand the court proceedings, to do so could only lead to obscurity, and incomprehension. [56] Whilst specific references in a sentencing judgment to law and principle make the job of an appellate court in determining whether there was some error in the application of principle more straightforward, that by no means dictates a need for the slavish recitation of applicable law by first instance judges. It is enough if, on considering the whole of the sentencing remarks, the appellate court is able to determine what the sentencing court did and why, and determine whether law and principle have been correctly applied."
If the applicant's disadvantage or deprivation as a child is to be taken into account by the sentencing judge, then the sentencing judge is required, either expressly or by inference, to make that clear. Further, if the sentencing judge is to apply certain principles in fixing an appropriate sentence, relating to the low cognitive functioning of the applicant, then, again, his Honour must make that clear, either expressly or by words of necessary intendment.
As earlier stated, this does not require a sentencing judge to deal at length with legal principles or law. Nor is there a need to express the implementation of principles that are otherwise obvious. For example, a statement by a sentencing judge that a discount of 25% for the utilitarian value of the plea of guilty necessarily imports that the plea of guilty was at the earliest opportunity and does not require the sentencing court to explain the principles being applied in such a process.
The sentence imposed in these proceedings is the subject of challenge on the basis that the sentencing judge did not adequately, or at all, deal with the applicant's childhood disadvantage nor the manner in which the applicant's low cognitive functioning was to be reflected in the sentence to be imposed. If, as is suggested by the Crown, the judge was of the view that the low cognitive functioning was not causative of the offence or offending and was not, for that reason, to be taken into account in imposing an appropriate sentence, then it was necessary for the sentencing judge to make that clear.
His Honour made no reference to the applicant's developmental background. If, as is at least implied in the Crown submissions, the learned sentencing judge did not consider that the applicant's upbringing was substantially dysfunctional, given the applicant's reliance upon that as a factor in the sentencing proceedings, it would have been necessary for the sentencing judge to make that finding. If, on the other hand, as is submitted by the Crown, the sentencing judge did take into account the applicant's background and other reports and character references, two issues then necessarily follow.
First, if the judge did take into account the applicant's background, such a consideration is inconsistent with the Crown's view that his Honour may have found that the upbringing was not "substantially dysfunctional". Secondly, it is inconsistent with the duty to state the reasons that a sentence is imposed or assessed for the sentencing judge not to comment on a major aspect of the sentencing submissions. In my view, Ground 1 of the appeal is made out and should be upheld.
As a consequence of the foregoing conclusion in relation to Ground 1 of the appeal, it is strictly unnecessary for the Court, on appeal, to reach conclusions as to the success or otherwise of the other grounds of appeal. Nevertheless, it is appropriate for the Court, in my view, to deal at least with Ground 2 of the appeal.
There are two aspects of this ground that require comment. There seems to be some dispute between the Crown and the applicant as to whether his Honour found that the applicant had "low cognitive functioning", because the psychologist's report fell short of finding that the applicant had an intellectual disability. The psychologist noted, as stated earlier, some inconsistency with the verbal skills of the applicant during interviews.
Secondly, the Crown seems to suggest that, to the extent that low cognitive functioning was found to exist and was, at least in part, equivalent to an intellectual disability, the sentencing judge was not in error because there is no evidence to establish, on the balance of probabilities, any causal connection between low cognitive functioning and the offending.
The effect of a mental or intellectual disability, including low cognitive functioning, on a sentence to be imposed is not confined to a circumstance in which the low cognitive functioning or intellectual disability has a causal connection with the offending. An intellectual disability has an effect on sentencing, not only because it may be causative of the offence itself, but also because the offender, with the disability, may not be an appropriate vehicle for general deterrence; may have a reduced moral culpability in the offending; and may suffer more harshly the effects of incarceration than a person without such a disability.
On the other hand, as has been made clear on a number of occasions, the intellectual disability may require greater specific deterrence, so that an offender with such a disability acquires learned reactions instead of needing to exercise independent executive functioning; and it may also affect the need for protection of society as a result of a greater propensity to reoffend.
It is unclear from the remarks on sentence how the learned sentencing judge treated the applicant's low cognitive functioning and what, if any, effect it had on the sentence that was imposed.
In those circumstances, I would also uphold Ground 2 of the appeal. Given that it is my conclusion that both Grounds 1 and 2 of the appeal should be upheld, it is necessary for the Court to resentence. As a consequence, the Court is required to resentence. A conclusion as to manifest excess, which is Ground 3 of the appeal, while unnecessary, should also be determined and be the subject of some comment.
The pattern of past sentences is not synonymous with the range available. [55] Further, the "range" relates to that sentence range that is available for this offence committed by this offender.
The applicant is a young person with cognitive disability. He is not an appropriate vehicle for general deterrence, although some attention to general deterrence is necessary. Specific deterrence is a factor, particularly in light of his past offending, ameliorated by some realisation by him that his conduct, including his drug abuse, has led to the offending and needs to change.
In order for an appeal court to intervene in a sentence on the ground of manifest excess, it is not sufficient for the appeal court to conclude it would have imposed a different sentence. Manifest excess is a specie of manifest error. In order to succeed on such a ground, an applicant must show an outcome of the sentence that is plainly unjust or unreasonable. [56]
Ordinarily, manifest error occurs when the sentence imposed reflects an error of principle or law, or an error of fact, which is unable to be identified. [57] It may be that the identifiable errors I consider have occurred, and to which reference has been made, account for the sentence being plainly unjust or unreasonable, but I doubt that all of it can be so explained.
Nevertheless, this sentence discloses manifest excess. This is a head sentence that is more than half the age of the applicant and, from his perspective, would be crushing. [58] Particularly where the Court is dealing with a youth, the assessment of rehabilitation prospects four or seven years into the future, where maturity may have manifested, is difficult. [59] In sentencing a young person, rehabilitation is a more significant factor.
Whether the applicant will have achieved the kind of maturity to allow a confident assessment that rehabilitation is probable is a matter for the Parole Authority. [60] But a sentence that will conclude at about 25 years of age and allow eligibility for parole from about 22 years of age is, in these circumstances, appropriate and this sentence, as stated, is unreasonable and plainly unjust.
The offences were serious and require condign punishment and condemnation. Nevertheless, for the reasons given, I would also uphold Ground 3.

Resentence

The applicant was, at the time of the offence, 17 years of age. He was a youth and to be treated as a youth. A youth of just under 18 years of age should not expect to be treated very differently from a person just over the age of 18 years. The foregoing comment does not mean that each of them does not have his or her youth taken into account in determining the sentence. [61]
In BP v R, Hodgson JA discussed the relevance of youth of an offender in sentencing. His Honour said: "[3] The relevance of the youth of an offender to sentencing has been extensively discussed in many cases, including KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 (referred to by Johnson J) and cases referred to in that case. I accept the principles stated in KT at [22] - [26] (quoted by Johnson J at par [74] of his judgment). However, I wish to make three points concerning these principles. [4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] - [36]. [5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a 'child offender' of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime. [6] Third, I do not think courts should be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors. [7] I do not suggest that, in all the circumstances of this case, the youth of the offender should be given such weight as to make a large difference in the ultimate outcome; but I would give it some weight, and on that basis favour a substituted sentence a little shorter than that proposed by Johnson J." [62]
In this case, the offender has both youth and a difficulty with intellectual functioning. This complicates the effect on general deterrence and moral culpability. In R v AN, [63] Howie J, after referring to the comments of Gleeson CJ in R v Engert, [64] dealt with the combined effect of youth and intellectual disability. His Honour said: "But it was not only the age of the applicant and the principles that applied in sentencing a child that needed to be taken into account in the difficult task that confronted his Honour. The evidence was that the applicant was suffering from a mild to moderate intellectual disability. It was because of his mental abnormality that he was found to be unfit to be tried. The applicant had an intellectual age far below his chronological age. Therefore the applicant's criminal responsibility was not only diminished by the vulnerability and immaturity arising from his youth but also by the mental deficiencies from which he suffered and that resulted in a reduced understanding of the criminality of his conduct and its consequences to the victim and himself." [65]
In these proceedings, the intellectual disability of the applicant seems to be confined to low cognitive functioning, but the principles are still the same. It is only that the intellectual disability is not as profound and therefore would not have the same effect on any sentencing discretion.
In the course of his reasons for judgment in R v AN, Howie J referred to the effect of compounding where there are two factors, each of which may have an effect on particular aspects of the sentencing discretion. His Honour said: "[46] The considerations that apply in determining the significance to be given to general deterrence when sentencing a child are not the same as those which apply when sentencing a person who suffers from a mental abnormality. In the former case the issue is one of weighing the need for general deterrence as against the need to promote the rehabilitation of the child. In the latter case the issue is whether the offender is a suitable subject for general deterrence and, if so, to what degree having regard to the severity of the mental abnormality and its connection with the offence committed. I do not believe that the weight to be given to general deterrence in dealing with a child suffering from a mental disability can be determined simply on the basis of applying only the relevant considerations applicable to a child or only the relevant considerations applicable to a person suffering from a mental disability. Yet this appears to be what his Honour has done by referring only to the passage in Bus quoted above and in the context of considering the relevant principles to be applied when sentencing a child. … [49] Had his Honour referred to the issue of the relevance of the applicant's mental disability to the question of general deterrence and, having relied upon what was said in this passage, held that little moderation of general deterrence should be given, there may have been no error asserted or at least the error asserted in such a case would not be a failure to consider the issue at all. I am not prepared to assume that his Honour silently took into account the relevance of the applicant's mental disability on the issue of general deterrence in the present case where the Judge referred specifically to the issue of general deterrence but only in the context of the approach to be adopted to sentencing the applicant because of his age."
Of course, the offender in AN was of a very young age. But the combined effect of youth and low cognitive functioning has a greater effect on the applicant than the separate application of each such principle.
I turn then to the issue of the applicant's developmental background and his dysfunctional childhood. The applicant had a bifurcated upbringing. His parents were separated and he spent some of the time in a supportive household with his mother and other time in a quite dysfunctional environment. His father was violent and the time he spent with his father exposed him to a general environment of violence and other dysfunctional aspects.
Issues associated with the dysfunctionality of an offender's childhood were dealt with, at length, by this Court in Kentwell (No 2). [66] In Kentwell (No 2), Bathurst CJ, and the Court, were dealing with a person raised in a "middle-class household", without violence and without the abuse of alcohol. In so doing, the Court took account of the fact that the offender, a person of Aboriginal descent, was adopted by a Caucasian household and was subject to fundamental social exclusion by schoolmates and others. His search for belonging led him to encounter significant dysfunctionality and an environment of drug abuse and violence.
Every case is different. Not every case in which there is some violence as part of the offender's upbringing will result in the kind of deprivation that should be taken into account in determining an appropriate sentence because of its effect on moral culpability. [67]
In the circumstances of this applicant, he had the opportunity to differentiate between a loving and caring environment offered by his mother and the dysfunctional environment into which he was moved on a weekly basis. Unfortunately, it seems that his low cognitive functioning may not have enabled him to differentiate "normality", as it may have for others. It seems to me that some allowance should be made, in the determination of an appropriate sentence, for the applicant's partly violent background and childhood. Nevertheless, that allowance should be slight.
Otherwise, I independently arrive at the other conclusions of the sentencing judge and I would adopt the comments of the sentencing judge on the issues associated with the sentence and about which no complaint has been made.
It is unnecessary to reiterate the circumstances of each of the offences committed by the applicant. Each has been described above.
His subjective background is set out in the psychological report of Ms Brann, dated 5 November 2018. Notwithstanding the earlier comments relating to the environment offered by his mother, the time with his father had an effect even in that environment.
His mother used significant corporal punishment and became more enraged when the applicant laughed at the punishment inflicted. The dysfunctional environment with his father included physical fights with his father, starting from the age of 14.
The physical environment in the premises or around the premises in which his father lived included continual fighting, drug addicts and the abuse of illicit substances, daily screaming and glass smashing and general violence.
The applicant was diagnosed with ADHD and conduct disorder as a child, with which diagnosis of ADHD he disagrees. The applicant has been smoking cannabis from the age of 12; progressed to daily consumption of "one stick" by age 14; consumed 6 to 8 MDMA capsules per night on weekends; and consumed speed. These were last consumed on New Year's Eve 2017/2018. As earlier stated, his developmental needs would not be adequately catered for in an adult custodial setting; he has significant cognitive deficits and is immature.
His identity, or understanding of self, has been formed and developed in the context of his offending; antisocial peers; and time spent in juvenile justice facilities. There have been few positive sources of potential identity.
Having dealt with the subjective circumstances outlined in the psychological report, it is necessary to return to the objective circumstances of the offending. The offending in question includes offences under s 97(1) of the Crimes Act 1900 (NSW), to which the guideline judgment in Henry applies. His offending, however, also includes robbery while armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act to which, usually, Henry is not applied.
The applicant has a long juvenile criminal history. That history includes stealing from a person; robbery armed with an offensive weapon, on many occasions; resisting officers in the execution of their duty; take and drive a motor vehicle with a person in it; assault with intent to rob; robbery in company; and malicious damage to property. The applicant is not entitled to the leniency of a first offender.
The sentencing judge referred to the offences under s 97(1) being aggravated by having been committed in company. This aggravation arises because, pursuant to the terms of s 97(1) of the Crimes Act, the applicant was in possession of an offensive weapon and in company, one of which would be a precondition to the operation of the provision and the other an aggravating circumstance.
In my view, his prospects of rehabilitation are guarded, particularly in the absence of an individually designed program that meets his dysfunctional background, his drug and alcohol difficulties, and his low cognitive functioning. As a consequence, he will require a longer period than usual on parole and, like the sentencing judge, I would find special circumstances.
The offences occurred over a two-month period in a spate of violent, armed robberies. The purposes of specific deterrence loom as a significant factor in the fixing of any sentence.
As already indicated, general deterrence is of less significance as a consequence of the applicant's youth and low cognitive functioning. I take account of each such factor and do not lump the two together as each affects the applicant slightly differently and has a compounding effect on the other.
A plea of guilty occurred at the earliest possible opportunity and, like the sentencing judge, I allow a 25% discount for the utilitarian value of that plea. The robbery causing wounding, contrary to s 98 of the Crimes Act, is a more serious offence than the offences under s 97(1), but carries the same maximum term of imprisonment of 25 years' imprisonment as the offences under s 97(2) of the Crimes Act.
The offence against s 98 of the Crimes Act also has a standard non-parole period of seven years' imprisonment. No issue has been taken on appeal, or for the purpose of resentencing, with the assessment of objective seriousness of each of the offences. That is an appropriate concession.
Having independently assessed the issues, I assess the offence under Sequence 2 as a mid-range offence; the offence in Sequence 3 as a mid-range offence; the offence under Sequence 4 as a mid-range offence; and the offences under Sequences 10 and 11 as each below the mid-range of objective seriousness. The offence, which is Sequence 9, robbery in company with a dangerous weapon, is below the mid-range in objective seriousness.
The foregoing assessments take into account the aggravating features to which reference has already been made, namely, that there was both the use of a weapon and the offences were committed in company, only one of which is an aggravation; they were committed whilst on conditional liberty; and, in each case, the victim was vulnerable.
The Form 1 offence is serious and makes specific deterrence more significant in relation to Sequence 2, with which the Court has already dealt.
I too would impose an aggregate sentence and set out the following indicative sentences: Sequence 2, including the offence on the Form 1 (originally charged as Sequence 1): a starting point of 6 years' imprisonment, less 25% discount, leaving a head sentence of 4 years and 6 months and a non-parole period of 2 years and 3 months. Sequence 3: a head sentence of 4 years and 8 months, less 25% discount, resulting in an indicative head sentence of 3 years and 6 months. Sequence 4: the same indicative sentence as Sequence 3. Sequence 9: a starting point of 5 years, less 25% discount, resulting in an indicative head sentence of 3 years and 9 months. Sequence 10: an indicative starting point of 4 years and 4 months, less 25% discount, resulting in an indicative head sentence of 3 years and 3 months. Sequence 11: a starting point of 3 years and 4 months, less 25% discount for the plea of guilty, resulting in an indicative head sentence of 2 years and 6 months.
As earlier indicated, I have found special circumstances; I would impose an aggregate sentence of 7 years and 6 months' imprisonment, including a non-parole period of 5 years.
I would propose that the Court make the following orders: 1. Leave to appeal be granted; 2. Appeal allowed; 3. The sentence imposed on the applicant on 23 August 2019 be quashed; 4. The applicant be sentenced to an aggregate sentence for all of the offences for which he was sentenced on 23 August 2019, being an aggregate head sentence of imprisonment for 7 years and 6 months, commencing 16 February 2018 and concluding 15 August 2025, including a non-parole period of 5 years concluding 15 February 2023. The applicant will be first eligible for parole on 15 February 2023.
PRICE J: I have had the benefit of reading in draft the judgments of Basten JA and Rothman J. I agree for the reasons articulated by Basten JA that Grounds 1 and 2 of the appeal should be dismissed.
As to Ground 3 of the appeal, I agree with Basten JA that the non-parole period of 5 years is "comfortably within a range of appropriate minimum terms, given the nature of the offending". [68] However, I respectfully disagree with both Basten JA and Rothman J that the head sentence of 10 years is unreasonable or plainly unjust. As I am in the minority on this issue, my reasons will be brief.
Basten JA at [5] above draws attention to the serious nature of the applicant's offending and terrifying effects on the victims. The four armed robberies involved the use of weapons and violence. The applicant committed the offences whilst on conditional liberty. His prior criminal history includes control orders for robberies armed with an offensive weapon and robbery in company. The sentencing judge was "very guarded" [69] as to the applicant's prospects of rehabilitation.
Although some weight must be given to the applicant's youth and "low-cognitive functioning", the purposes of sentencing include the protection of the community and the recognition of the harm done to the victims. [70] As Hoeben CJ at CL (with whom White JA and N Adams J agreed) observed in R v El Sayah; R v Idaayen; R v Mansaray [2018] NSWCCA 64 at [60]-[61]: "It is true that considerable leeway needs to be given to young offenders, particularly to those who have no previous criminal record. That having been said where young persons conduct themselves in a way that an adult does and commit a crime that involves violence, in such a case it is the function of a court to protect the community and to appropriately give effect to the retributive and deterrent elements of sentencing. When sentencing for serious offending, such as we have here, particularly involving violence, the protective aspect of the criminal courts must be kept in mind. Deterrence and retribution do not cease to be important merely because persons in their late teens are the persons committing grave crimes, particularly when those crimes involve physical violence. The offence of armed robbery, particularly involving violence against a vulnerable person is a crime of considerable gravity."
Taking into account the overall criminality of the applicant's offending, his subjective circumstances and the guideposts of the maximum penalties and (where applicable) the standard non-parole periods, I am not persuaded that the aggregate head sentence of 10 years imprisonment was not a legitimate exercise of the sentencing judge's discretion. I would dismiss Ground 3.
Accordingly, the orders I propose are: 1. Leave to appeal granted. 2. Dismiss the appeal.

Endnotes

Children (Criminal Proceedings) Act 1987 (NSW), s 15A.
Sentencing judgment at [120].
Sentencing judgment at [156].
Tcpt, 20/06/19, p 27(32)-(43).
Report, par 7.
Sentencing judgment at [160].
Sentencing judgment at [176].
Sentencing judgment at [163].
Sentencing judgment at [158].
Report, par 23(b).
Ibid.
Sentencing judgment at [152]-[153].
Sentencing judgment at [154]-[155].
(2013) 249 CLR 571; [2013] HCA 37.
Sentencing judgment at [149].
Sentencing judgment at [199].
Sentencing judgment at [160].
Exhibit 9.
Psychological Report of Ms Sarah Brann, dated 5 November 2018, at [22].
Ibid at [23(g)].
Remarks on Sentence at [15]-[20].
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111.
Sequence 2.
Remarks on Sentence, at [83] and [84].
The summary of the robbery offence occurs between [85] and [92] and the assessment of objective seriousness is at [94] and [95] of the Remarks on Sentence.
Remarks on Sentence, at [99] and following.
Remarks on Sentence, at [109] and [111].
Sequences 10 and 11, summarised at Remarks on Sentence, at [111]-[125].
Remarks on Sentence, at [120].
Remarks on Sentence, at [121].
Remarks on Sentence, at [123].
Remarks on Sentence, at [124].
Sequence 9, summarised in Remarks on Sentence, at [126]-[139] and following.
Remarks on Sentence, at [138].
Remarks on Sentence, at [139].
Remarks on Sentence, at [148].
Remarks on Sentence, at [150].
Remarks on Sentence, at [152].
Remarks on Sentence, at [155].
Remarks on Sentence, at [157].
Remarks on Sentence, at [156].
Miller v R [2015] NSWCCA 86 at [34]-[35], per Simpson J; see also Yildiz v R [2020] NSWCCA 69 at [7] per Simpson AJA and N Adams J as to the failure to address youth or the age of the offender.
Remarks on Sentence, at [156].
Remarks on Sentence, at [21].
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] per McClellan CJ at CL.
Remarks on Sentence, at [156].
This was done in the applicant's written submissions at Table 2.
R v Henry (1997) 46 NSWLR 346; [1997] NSWCCA 111.
Yildiz v R [2020] NSWCCA 69 at [60]-[61].
R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [17].
The offence notified on the Form 1.
Remarks on Sentence, at [157].
Remarks on Sentence, at [160].
Taylor v The Queen [2018] NSWCCA 255 at [52]-[56].
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 and Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 and House v The King (1936) 55 CLR 499; [1936] HCA 40.
House v The King, supra.
R v MAK; R v MSK (2006) 167 A Crim R 159 at 164; [2006] NSWCCA 381 at [17], per Spigelman CJ, Whealy and Howie JJ and R v WC [2008] NSWCCA 268 at [61]-[62] per Hall J, with whom McClellan CJ at CL and Harrison J agreed.
Bugmy v The Queen (1990) 169 CLR 525 at 537; [1990] HCA 18.
Ibid.
R v LNT [2005] NSWCCA 307 at [32], per Rothman J, with whom Simpson and Johnson JJ agreed. See also MJ v R, CPD v R [2010] NSWCCA 52.
BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 per Hodgson JA, with whom Rothman J agreed.
R v AN [2005] NSWCCA 239.
R v Engert (1995) 84 A Crim R 67.
R v AN, supra at [22].
Kentwell v R (No 2) [2015] NSWCCA 96.
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Kennedy v R [2010] NSWCCA 260; Kentwell (No 2), supra.
See [16] above.
ROS 31.
Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A. 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: 29 September 2020

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