Thammavongsa v Regina

The application for an extension of time

1. Two affidavits of Madeleine Schneider, affirmed on 3 February 2014 and 24 February 2015 respectively, set out the relevant chronology. In summary, the applicant filed a notice of intention to seek leave to appeal against his sentence on 20 September 2005. His application for legal aid was refused following advice from counsel. Accordingly, no appeal proceeded at that time.
2. On 5 October 2011 the High Court delivered its decision in Muldrock v R [2011] HCA 39; (2011) 244 CLR 120. In December 2011 Legal Aid NSW received advice from senior counsel regarding the implications of that decision upon persons who were serving sentences for offences for which a standard non-parole period was prescribed. A review team was then established within Legal Aid NSW to consider the impact of the decision in Muldrock. Advice was received from counsel on 11 October 2012 in respect of the applicant's case. Legal aid was then granted to the applicant and on 28 June 2013 an application for an extension of time in which to seek leave to appeal was filed.
3. In late 2013 this Court heard a number of applications to extend time in cases which were said to be affected by the decision in Muldrock. Two of those decisions, Kentwell v R [2013] NSWCCA 266 and O'Grady v R [2013] NSWCCA 281, were the subject of a grant of special leave to appeal to the High Court. On 9 October 2014 the High Court delivered its decision in each matter: Kentwell v R [2014] HCA 37; (2014) 88 ALJR 947; O'Grady v R [2014] HCA 38. The High Court concluded that the test which had been applied by this Court to determine whether an extension of time should be granted (such test having been laid down in Abdul v R [2013] NSWCCA 247) was incorrect. The progress of the present application was delayed as a consequence of awaiting the decisions in O'Grady and Kentwell.
4. The approach which is to be taken by this Court in determining whether or not an extension of time should be granted is set out in Kentwell (supra) where the plurality (French CJ, Hayne, Bell, and Keane JJ) said (commencing at [32]): "[32] The Act confers a right to appeal against conviction in stated circumstances and provides for an appeal against conviction and/or sentence with the leave of the court. These provisions (among others) are exceptions to finality in the trial and sentencing of offenders. The principle of finality finds expression in the prescription of the time limit within which an appeal or an application for leave to appeal may be brought. The discretionary power to extend the time limit is a legislative recognition that the interests of justice in a particular case may favour permitting an appeal or an application for leave to appeal to be heard, notwithstanding that it was not brought within time. The interests of justice will often pull in different directions. As earlier noted, they may include consideration of the adverse effect on the victim, or on the community generally, occasioned by re-opening a concluded criminal proceeding. However, at least in the case of an out-of-time challenge to a sentence that is being served, the principle of finality does not provide a discrete reason for refusing to exercise the power. [33] Relevant to the determination of the interests of justice on an application to extend time is the prospect of success should the extension be granted. Contrary to the appellant's submission, the Court of Criminal Appeal's acceptance that his grounds of appeal were established did not conclude its consideration of the merits of the appeal. As the appellant acknowledged on the hearing of the appeal, notwithstanding conceded "Muldrock error", a sentence may be so demonstrably lenient that the Court of Criminal Appeal concludes that there is no prospect that a lesser sentence would be imposed were the appeal to be entertained."

His Honour erred in his approach to the standard non-parole period legislation in the light of the principles identified in Muldrock v R (2011) 244 CLR 120

THE APPROACH OF THE SENTENCING JUDGE

1. Having set out the circumstances of the offending and the applicant's subjective case, the sentencing judge said (at [27]): "[27] The Court is required "to set the standard non parole period" unless it determines that there are reasons for setting a longer or shorter period (s 54B(2)). The Court may depart from the standard, but only for reasons which are identified in s 21A of the Act (s 54B(3)). Section 21A obliges the Court, when fixing a sentence, to have regard to aggravating and mitigating factors (which the section identifies), as well as other objective and subjective factors affecting the relative seriousness of the offence. The Court, by s 54B(4), is enjoined to make a record of its reasons for increasing or reducing the standard non parole period, identifying each factor taken into account. [28] The approach that should be taken in respect of a standard non parole period was considered by the Court of Criminal Appeal in R v Way (2004) 60 NSWLR 168. The Court identified the issue which must be addressed, namely: Are there reasons for not imposing the standard non parole period? That question will be answered by considering the following matters: (R v Way (above) para 118) (i) the objective seriousness of the offence considered in the light of the facts, which relate directly to its commission, including those which may explain why it was committed, so as to determine whether it answers the description of one that falls into the mid-range of seriousness for an offence of the relevant kind; (ii) the circumstances of aggravation, and of mitigation, which are present in the subject case, or which apply to the particular offender, as listed in s 21A(2) and (3), and as incorporated by the general provisions in s 21A(1)(c) and by the concluding sentence to s 21A(1)".
2. His Honour then turned (commencing at [30]) to consider whether the offending should be regarded as falling in the mid-range of objective seriousness: "[30] The Crown pointed to certain aggravating features, identified in s 21A(2) of the Act, although care must obviously be taken to ensure that the aggravating factor is not an element of the offence, nor some other feature inherent in the charge itself. Here, for instance, the offence of murder obviously involves violence (s 21A(2)(b)) so that cannot be regarded as an aggravating feature. Nor, for the same reasons, can the fact that the offence was committed without regard for public safety (s 21A(2)(i)). On the other hand, the offence involved the actual use of a weapon and that was a circumstance of aggravation (s 21A(2)(c)). The episode of kicking the victim after he had been shot may amount to gratuitous cruelty, although it really was a continuation or manifestation of the anger which was inherent in the offence. [31] In terms of mitigating factors, the offence was not, I believe, planned. Mr Thammavongsa's decision to take the gun to the party was foolhardy and reckless, especially since he knew he would be drinking and taking drugs. It made possible, and indeed invited, the sort of senseless violence that then occurred. It was obviously unwise and reckless to remove the gun from the boot of the car and place it in his pocket as he contemplated confronting the group. At that stage, Mr Thammavongsa intended to keep the gun in reserve or brandish it to impress the group. There is no evidence that he intended, at that point, to fire it. The intention to discharge the weapon arose during the course of the confrontation. [32] It may be said that, to the mildest degree, some member of the group provoked Mr Thammavongsa during the angry exchange of words (s 21A(3)(c)). Unquestionably, Mr Thammavongsa's perception was impaired by reason of drugs and alcohol. That is not a matter in mitigation but part of the explanation for his conduct. He did not, as I have said, intend to kill the victim. He was standing some distance from him. He had a small gun with one bullet and the gun was inherently inaccurate. Plainly, however, as the jury found, he intended, in his anger, to inflict very serious injuries, and did so by firing the gun, ultimately causing the victim's death. [33] The Crown urged that, because Mr Thammavongsa showed immediately after the shooting, a degree of callousness by kicking the victim, the offence is slightly worse than an offence in the middle of the range of objective seriousness. Whilst it is true that there was a degree of callousness, it is also significant, in my view, that the offence was to some degree, spontaneous, without an intention to kill. On balance, I believe the offence should be regarded as one in the middle of the range of objective seriousness. The standard non parole period should therefore apply unless there are reasons, specific to Mr Thammavongsa, which suggest that it should be moderated. [34] Here, I believe there are such reasons. Looking at the subjective case, the applicant has an unfortunate background. He has, to a degree, shown some remorse. He has reasonable prospects of rehabilitation. The fact that he is likely to serve his sentence on protection, and especially his youth, suggest that some moderation of the standard non parole period is appropriate."

THE DECISION IN MULDROCK v R

1. In Muldrock the High Court concluded (at [25]) that the decision of this Court in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 was incorrect. The High Court found that it was an error to characterise s. 54B(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") as being framed in terms which required a sentencing judge to use the standard non-parole period as the starting point for an offence which was assessed as being in the middle of the range of objective seriousness.
2. The High Court further concluded (at [26]) that it was a mistake to give primary, let alone determinative, significance to the applicable standard non-parole period. The Court concluded that the correct approach was to identify all relevant factors, including any prescribed standard non-parole period, and make a value judgment as to the appropriate sentence, given all such factors.
3. Significantly, in light of the error asserted in the present case, the High Court specifically rejected (at [28]) the adoption of a two-stage approach to sentencing, commencing with an assessment of whether the offence falls in the middle of the range of objective seriousness, followed by an inquiry as to whether there are matters justifying a longer or shorter period.

CONSIDERATION

1. In the present case the Crown conceded that the reasons of the sentencing judge reflected Muldrock error. That concession was an appropriate one for two principal reasons.
2. Firstly, his Honour's reference (at [28]) to the decision in Way, and the question that his Honour then posed, make it clear that he regarded the primary issue as being whether or not there were reasons for not imposing the standard non-parole period. In doing so, his Honour gave the standard non-parole period primary, or perhaps even determinative, significance. In light of the decision in Muldrock, that approach reflected error.
3. Secondly, it is evident from his Honour's reasons at [30]-[34] that he effectively used the standard non-parole period as the starting point in determining an appropriate sentence. Having done so, he proceeded to consider whether there were factors which justified the imposition of a longer or shorter non-parole period. In doing so, and leaving aside the significance which his Honour attached to the standard non-parole period, his Honour adopted a two stage approach to sentence. The High Court determined in Muldrock that such an approach was erroneous.
4. It will be evident from the passages in Kentwell set out in [8] above that the question of whether or not a proposed appeal has prospects of success is one of the factors which is relevant to the determination of whether or not an extension of time ought be granted. In the present case, where the affidavit material adequately explains the delay in bringing the application to extend time and where error is established, it is appropriate to make orders extending time and granting leave to appeal.

THE APPROACH TO DETERMINING SENTENCE

1. Error having been established, the provisions of s. 6(3) of the Criminal Appeal Act 1912 are enlivened. In Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 Spigelman CJ said (at [19]): "[19] Section 6(3) is directed to ensuring that the Court of Criminal Appeal … re-exercises the sentencing discretion taking into account all relevant statutory requirements and sentencing principles with a view to formulating the positive opinion for which the subsection provides."
2. In Kentwell, the plurality affirmed the correctness of that observation (commencing at [42]): "[42] Spigelman CJ's analysis in Baxter should be accepted. When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion. [43] After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the court required to re-sentence. Nor is the court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. The occasions calling for the Court of Criminal Appeal to grant leave, allow an offender's appeal and substitute a more severe sentence are likely to be rare. Were the court to grant leave in such a case, convention would require that it inform the appellant of its intended course so that he or she might abandon the appeal."
3. The fresh exercise of the sentencing discretion by this Court involves moving directly from the identification of error to an independent determination of what sentence is warranted in all of the circumstances. It is a matter of comparison of what that determination yields with what the original sentence was: Application by MLP pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 349 at [9] per R A Hulme J.
4. What is required is for the Court to make an independent assessment of the appropriate sentence and compare it with that originally imposed in order to determine whether there should be a lesser sentence. That has to be done in the context of the submissions made before this Court: MLP at [25].
5. The circumstances which this Court must consider include matters which have arisen since the original sentence was passed. In that regard, the following affidavits were read in the applicant's case on the question of re-sentence: 1. Lauren Hrouda dated 30 January 2014; 2. the applicant dated 4 February 2014; 3. the applicant dated 26 March 2015; and 4. Stephen Eccleshall dated 27 March 2015.
6. The Crown read the following affidavits on the same basis: 1. Steven Thompson dated 9 December 2013; and 2. Meaghan Fleeton dated 20 April 2015.
7. With these principles in mind I turn to consider the question of sentence.

THE CIRCUMSTANCES OF THE OFFENDING

1. The circumstances of the offending were set out by the sentencing judge commencing at [3]: [3] In July 2003, three school friends turned 18 within a few days of each other. They decided to have a joint party. They hired the community hall at Cecil Hills. They made arrangements with the police to enable liquor to be brought to the premises. They each invited guests. One of the young men was the cousin of Meng Thammavongsa. And so it was that Mr Thammavongsa was invited to the party. [4] On the night of the party, Mr Thammavongsa went with his cousin to the community hall quite early. He helped set up the hall. He took with him both alcohol and drugs. He had a bottle of whisky, some beer and several ecstasy tablets. Mr Thammavongsa also had with him, a firearm and a number of bullets. The firearm was an unusual weapon, known as a "pen gun". It is called a pen gun because it physically resembles a fountain pen and is not much bigger. It consisted of a cylinder which is the barrel, which does not have a butt or handle. It resembles a short length of pipe. There is a firing mechanism on the top of the barrel, which is pulled back and then released. To load the weapon, the barrel is unscrewed. A bullet is then inserted and the two sections then screwed back together again. It is only capable of firing one shot at a time. It must be supported by one hand and the other hand is then used to release the trigger. [5] Mr Thammavongsa took the weapon to the party. He said that he wanted to show his friends. There were a hundred or more invited guests who came at different stages during the evening. There was a disc jockey playing dance music. People moved in and out of the hall, gathering in small groups, talking in the car park and the parklands adjacent to the hall. [6] At 10.00 pm or thereabouts, a number of uninvited guests arrived. They were described as a group of Asians. Amongst them was Khang Vinh Tien. An incident occurred in which a bottle or a beer can was thrown or kicked at a window of the hall. The window was not broken. A person inside the hall, Michael, a friend of Mr Thammavongsa, remonstrated with the person responsible, being one of the so-called group of Asians. There was an exchange of words. Ultimately an invited guest, a big man, came into the kitchen where Michael had been standing. The abuse between Michael and the person outside the hall stopped. Those involved drifted away. The incident itself was short lived. There was no physical contact between anyone involved. [7] The party continued for a number of hours. Much of it was recorded on video. It appeared to be a normal party. People seemed happy. Mr Thammavongsa spent much of the night in the barbeque area just outside the hall. He consumed both whisky and beer. He was described by some of his friends as "tipsy". He also took an ecstasy tablet earlier in the evening. He took another some hours later. He had, in the past, consumed both alcohol and ecstasy on a number of occasions. Expert evidence was given that ecstasy, in combination with alcohol, has a sobering effect, without affecting the level of alcohol in the blood. The account Mr Thammavongsa gave of how much alcohol he consumed was, on the medical evidence, unreliable. Nonetheless, it can be accepted that he was affected both by alcohol and drugs. He said that he had an odd reaction to the second ecstasy tablet. It made him feel paranoid. However, he had a fair recollection of the events that were about to unfold. When asked by his counsel whether he was affected by drugs and alcohol, he said that he was, adding that he was not very affected. [8] Shortly after midnight there was a further incident outside the hall. It involved another group of uninvited guests. They were described as Lebanese. The incident began at 12.06 am and was recorded on a video camera. The video formed part of the evidence. The incident did not develop beyond an exchange of words. There was, nonetheless, a degree of tension. One of the hosts then determined that the party should be shut down. They were, in any event, approaching the time when they were obliged to leave the hall. He therefore gave instructions to stop the music. Those within the hall began moving outside, gathering in small groups in the car park and on a grassed area adjacent to the hall. [9] The shooting occurred at about 12.30 am. About 15 minutes beforehand, Mr Thammavongsa walked with his friend Michael to his car. Mr Thammavongsa retrieved the pen gun from the boot of the car. He also had a bullet in his pocket. [10] Mr Thammavongsa walked back towards the car park. He separated from his friend Michael, who then approached another guest. Michael expressed fear of the Asians involved in the incident earlier in the evening. He asked his friend to drive his car to the road. One gathers that he was fearful that the car, which belonged to his parents, may be damaged. Michael had been drinking. He described himself as moderately affected by alcohol. Michael decided that he would leave the area by walking through some vacant land nearby, meeting his friend further down the road. [11] Khang Vinh Tien and his friends were standing on the grassed area not far from the hall. It was, of course, dark. Some light fell upon the grassed area from the adjacent car park and the overhead lights of the road which was nearby. The lights in the hall were also on and shed some light on the area where Khang Vinh Tien and his friends were standing. [12] As Mr Thammavongsa walked back towards the car park, he loaded the pen gun and placed it in his pocket. He then approached the group. He was by himself and about eight to ten metres from them. At the time, he was aged 21 years. The victim was aged 17 years and so were most of his friends. Mr Thammavongsa called out to them. Amongst other things he said: 'Do you want to play?' [13] A confrontation developed involving an exchange of words between Mr Thammavongsa and members of the group. Mr Thammavongsa said that his purpose in approaching the group was to protect his friend Michael. He thought the group were about to enter the hall and harm Michael. That was the background to his claim of self defence which the jury rejected. Whilst it may be accepted that Michael had expressed fear of the group of Asians, the suggestion that Mr Thammavongsa was concerned to protect Michael was odd. He had been to the car 15 minutes before with Michael when he retrieved the gun, which he had then loaded. Michael, meanwhile, had left the area in accordance with the arrangements which I have described. I do not accept, even as a probability, that the group or any member of it was advancing towards Mr Thammavongsa or the hall. [14] The group which Mr Thammavongsa confronted comprised about half a dozen young men, including Khang Vinh Tien. When some members of the group answered back, Mr Thammavongsa took the pen gun from his pocket. He pointed it at the group. He agreed in cross examination that he was angry. He claimed, and the jury clearly rejected, that the victim or one of his companions made a gesture as though reaching for a weapon. None of the group was armed. Mr Thammavongsa fired the gun, aiming at the front of the victim. The weapon was inherently inaccurate. Although the bullet hit the victim on his face near the eye, ultimately causing brain damage which led to his death, it cannot be inferred that Mr Thammavongsa was aiming for his head. I make no finding that he intended to kill the victim, although plainly he intended to inflict very serious injury, as the jury found. [15] Immediately after the incident, Mr Thammavongsa approached Khang Vinh Tien. He was on the ground and trying to get up. Mr Thammavongsa kicked him in the side of the head. I infer he did so because he was still angry. Although several witnesses suggested that he kicked the victim a number of times, I believe that he only kicked him once. It was enough to cause the victim to fall back down and to leave a deep-seated, though small, bruise on his scalp above the ear. Mr Thammavongsa then walked away. He made his way to a friend's car. After getting into the car, he said to his friend words to the effect: 'I got him. I shot him in the face. I fucken kicked him in the face. They want to play games, little kids.'"

The applicant's background

1. The applicant gave evidence on sentence, the essence of which was to confirm the contents of the report of Ms Anna Robilliard, Psychologist, dated 2 August 2005. His background may be summarised as follows.
2. The applicant was born in Laos. He was 21 years of age at the time of the offending. He had a difficult childhood. After his father died during the war in Laos the applicant (who was then aged 5) came to Australia. After arriving, his mother formed a relationship with a new partner, whom she subsequently married. There were tensions between the applicant and his stepfather.
3. The applicant commenced using illicit drugs at an early age. He began using cannabis shortly after entering high school. He then began using heroin. He was expelled from one school. He had difficulty adjusting to the school to which he transferred following that expulsion. With the support of his family he underwent treatment for drug addiction, unfortunately without any real success.
4. Against this background, the applicant found himself committing criminal offences as a juvenile. He was convicted of robbery in company before a Children's Court in 1999 and was ordered to perform 150 hours community service. He was subsequently convicted of various offences involving the possession or supply of prohibited drugs. He was initially given the benefit of a fine but was later sentenced to imprisonment for 3 months.
5. In 2001 the applicant returned to Laos where he spent time with his grandmother. He also underwent some form of treatment for heroin addiction, and later spent time living in a temple with a group of monks. He then returned to Australia. Although he managed to cease his use of heroin, he developed an addiction to alcohol and ecstasy. He was affected by both substances at the time of the offending. Ms Robilliard found, following formal testing, that the applicant was functioning in the average to below average range of intelligence.

The applicant's remorse

1. Ms Robilliard, whose report was before the sentencing judge, said (at page 6): "On talking of his feelings about the offence Meng said he is very sorry for the victim and his family and hopes they would forgive him. He said he wished he had gone home from the party or run away from the confrontation. He insists that at the time he felt threatened and intimidated and "thought it was going to be a brawl. Meng said he realised he had hit the victim and he promptly left the gathering. He remembered feeling "really shocked, scared, what's going to happen"? At this point in our meeting he became frustrated and said it was hard to explain how he felt. His expression suggested distress and anguish. Meng went on to say that he still has nightmares about the event. He described how he feels the victim "comes and haunts me in my dreams". He said sometimes in his dreams he feels like "something is pushing me and crushing me - I don't like to sleep because of that feeling." Meng said the offence also often comes into his mind during the day".
2. Ms Robilliard also said (at p. 9): "Meng is now well and healthy. His recollections of the offence are ongoing and deeply distressing to him. He has an appropriate awareness of the pain and loss to the victim's family must feel and he is also aware of the effect on his own family. He expressed remorse and contrition stating that he wished he could turn back time and resolve the events of the evening in a different way".
3. In his affidavit of 4 February 2015 the applicant said (at para. 22): "When I think about the offence, I feel really terrible. I never meant to kill the bloke. I was a stupid idiot and I always wanted to impress my friends. I was drinking, had taken ecstasy and got myself into a bad situation. If I knew then what I know now I would have just walked away, but when you're young you don't think like that - you're just hot tempered. I regret it every day. I feel really bad for the bloke's family most of all."

The applicant's prospects of rehabilitation

1. In his affidavit of 4 February 2014 the applicant stated that he started to use drugs shortly after being taken into custody in order to "numb the pain". He went on to state that he stopped using drugs at the end of 2012. Clearly, that was not the truth. Annexure A to the affidavit of Ms Fleeton establishes that between October 2013 and July 2014 the applicant had six separate instances of misconduct recorded, all of which were related directly or indirectly to his possession of drugs or his possession of implements used for taking them. In his subsequent affidavit of 26 March 2015 the applicant expressly conceded that there were instances in 2014 when he was found to be in possession of methadone and when he failed urine testing.
2. That said, the applicant has attended literacy and numeracy classes on a regular basis since January 2014. He has been employed in custody and has completed a number of courses directed towards his rehabilitation. Partly as a consequence of the completion of these courses the applicant's classification was reduced in September 2013. He has expressed a willingness to enrol in other courses. He continues to maintain regular contact with his family and has the support of his mother with whom he proposes to live upon his release.

Other factors arising from the affidavit evidence

1. The applicant stated that his period in custody "has not been easy". He asked, at an early stage, to be placed on protection out of fear of threats and violence by friends of the deceased who were also in custody. The applicant remains on protection, although at a level which appears to be the lowest in the custodial system. The applicant also stated that he had received "attention" from other inmates, as a consequence of which he was (and remains) in fear of being sexually assaulted.
2. Although the applicant conceded that he had experienced difficulties with anxiety and depression prior to his offending he said that these problems had increased since being taken into custody. As I have previously noted, he admitted to having taken drugs in custody and stated that he had attempted suicide at one point by attempting to inject bleach. The fact that he suffers from anxiety is confirmed by the contents of a clinical note dated 2 September 2013 (part of Annexure A to the affidavit of Mr Eccleshall). That note records the applicant being described as a "highly anxious man, mildly tremulous, stuttering, distraught".
3. As a result of all of these matters, the applicant has come under psychiatric care since being taken into custody. He was prescribed anti-depressant medication in 2009 but ceased taking it in 2011, apparently having formed the view that it was not assisting him. In the period immediately following his cessation of medication the applicant failed a number of urine tests which revealed the presence of illicit drugs in his blood stream.
4. The applicant then resumed psychiatric care in 2013 and was again prescribed anti-depressant medication. However once again he ceased taking that medication after a short period.
5. The applicant continues to suffer from anxiety and depression. He has recently come under the care of Dr McClure, psychiatrist, who has prescribed anti-depressant medication which the applicant is again taking. The applicant also stated that he suffered back injuries as a consequence of a motorcycle accident which occurred prior to being taken into custody and was diagnosed as having hepatitis C in about 2001.
6. Despite his protected status the applicant commenced to start sharing a cell in 2014. He has said that he feels claustrophobic as a consequence and that he worries about being attacked whilst sleeping.
7. He continues to maintain regular contact with his family, including his sister and mother.

SUBMISSIONS OF THE APPLICANT

1. In submitting that the applicant's subjective case was compelling, senior counsel emphasised the applicant's youth, and what was said to be his immaturity, at the time of the offending. It was submitted that both factors reduced the applicant's moral culpability.
2. Senior counsel submitted that the applicant had originally taken the weapon to the function intending to show it to his friends because it was "novelty". It was submitted that the unusual nature of the weapon was such that a person of the applicant's then age may well have wanted to show it to his friends. It was submitted that against this background, the applicant's subsequent actions should not be regarded as being "adult-type" offending and that in terms of objective gravity, the weapon used by the applicant to kill the deceased fell at the lower end of the range compared with (for example) a pistol or a shotgun.
3. Senior counsel submitted that properly viewed, the applicant's offending was the act of an immature young man. It was submitted that such immaturity was confirmed by the following passage from the report of Ms Robilliard (at p. 5): "Meng was living with his cousin Gary and family in the months leading up to the offence. Gary had become one of his closest friends and Meng was also friendly with most of Gary's mates. They were all about 2 years younger than the client".
4. Senior counsel accepted that taking the weapon to the function for the purpose of showing it to friends was clearly reckless, particularly in circumstances where ammunition was also taken. It was also accepted that the applicant chose to retrieve, and load, the weapon when there was an indication that hostilities may be forming. However senior counsel emphasised that the applicant's decision to fire the weapon was not made until the time of the actual confrontation, and that there was therefore no planning or premeditation. He submitted that in these circumstances the applicant's offending should be regarded as essentially spontaneous. For these reasons, senior counsel took issue with the finding of the sentencing judge that the offending fell within the mid-range of objective seriousness. He submitted that all of the factors to which he had referred supported a conclusion that the offending fell below that level.
5. Senior counsel submitted that the applicant's criminal history was largely insignificant. He also drew attention to the applicant's expressions of remorse in his recent affidavit which, it was submitted, were consistent with the findings of the sentencing judge.
6. In terms of the evidence of the applicant's conditions of custody, senior counsel emphasised that the applicant: 1. had been placed, and remained, in protective custody; 2. remained fearful of being assaulted, and fearful of reprisals from friends of the deceased; and 3. was suffering from anxiety and depression.
7. All of these matters were relied upon in support of the submission that the applicant's conditions of custody were difficult.
8. Senior counsel accepted that the applicant's drug use whilst in custody had adversely affected his prospects of rehabilitation. However it was submitted that this had occurred against a background of being in protective custody and suffering anxiety and depression. It was further submitted that those matters which had adversely affected the applicant's prospects of rehabilitation were to be balanced against the evidence of the applicant having undertaken various courses whilst in custody. It was submitted that his efforts in that regard, and his expressed willingness to attend further courses, demonstrated a preparedness on the part of the applicant to make further attempts at rehabilitation.

SUBMISSIONS OF THE CROWN

1. The Crown submitted that the approach to the sentencing of young offenders, which generally ascribed greater emphasis to rehabilitation and less to deterrence and retribution, was not a blanket approach and that the extent of its application was to be determined on a case by case basis. In particular, the Crown submitted that the youth of an offender did not automatically lead to a reduced sentence.
2. The Crown accepted that if it could be established that the applicant's immaturity was a significant contributing factor to the offending then this would support a conclusion that his criminality was reduced. However it was submitted that there was no relevant nexus established between the applicant's youth and his offending.
3. The Crown also accepted that the mere presence of violence did not, of itself, indicate that a young person had been acting as an adult. However, it was submitted that in offending as he did, the applicant had effectively conducted himself as an adult. In support of its position the Crown relied upon a number of factors.
4. Firstly, the Crown relied upon the fact that having taken the weapon to the function, the applicant retrieved it from the motor vehicle, loaded it and then returned to the group. It was submitted that whilst the applicant may not have intended to kill the deceased, the retrieval and loading of the weapon were necessarily deliberate decisions.
5. Secondly, the Crown relied upon that part of the report of Ms Robilliard which was in the following terms (at page 8): "When he returned to Australia in early 2002 he found employment and was still employed when he was arrested. While he was not using heroin, he was abusing alcohol and ecstasy tablets together on what he described as special occasions, such as the night of the offence. Being a few years older than his cousin and the group he had been associating with since his return to Australia, Meng seems to have assumed a more prominent role and a sense of responsibility. On the night of the offence he was instrumental in setting up and running the party for his cousin Gary and two friends and he had organised to cook. He was upset when an uninvited group proceeded to eat food prepared for the invited guests. He was also concerned when he though (sic) Michael Nguyen, one of his group of friends had been involved in a confrontation with the gatecrashers and was likely to be harmed. The shooting occurred when Meng confronted the uninvited group of youths".
6. The Crown submitted that this history provided by the applicant ran contrary to the suggestion that his offending was a reflection, or a result, of his immaturity. The Crown emphasised, in particular, Ms Robilliard's reference to the applicant having assumed "a sense of responsibility" within the family with whom he was living at the time. It was submitted that the only aspect of the offending which reflected immaturity was the applicant's action in taking the weapon to show it off to his friends, and that this was of limited weight in all of the circumstances.
7. Thirdly, the Crown pointed to the fact that applicant was 21 years of age at the time of the offending. It was submitted that in all of the circumstances, and having attained his majority, he should not be regarded as an immature young man.
8. Fourthly, and quite apart from the fact that the offending involved the use of a weapon, the Crown emphasised that the applicant had chosen to retrieve, and then load, the weapon when signs of conflict were emerging. The Crown also emphasised that having loaded the weapon, the applicant walked some distance to confront the group (the members of which were all unarmed). It was submitted that the statement then made by the applicant, namely "Do you want to play?", was inherently provocative and reflected the fact that the applicant was the aggressor.
9. Finally, the Crown relied upon the fact that having shot the deceased, the applicant kicked him in the head before leaving the area. It was submitted that this circumstance increased the objective gravity of the offending.
10. The Crown submitted that all of these factors supported the conclusion that the offending was properly viewed as falling at the mid-range of objective seriousness. The Crown further submitted that the contents of the affidavit of Ms Fleeton (to which I referred at [57] above) reflected adversely upon the applicant's prospects of rehabilitation.

The applicant's youth and the circumstances of his offending

1. One of the principal submissions advanced by senior counsel for the applicant was that the applicant's age, and what was said to be his immaturity, reduced his level of moral culpability. This Court has considered the principles relevant to the sentencing of young persons on a number of occasions.
2. In KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 McClellan CJ at CL said (at [22]-[26]): [22] The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30]. [23] The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender's youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender's youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]). [24] Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135): "It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes, particularly crimes involving physical violence to persons in their own homes. It is appropriate to refer to the decision of Williscroft (1975) VR 292 at 299, where the majority of the Full Court of Victoria expressed the view that, notwithstanding the enlightened approach that is now made to sentencing compared to earlier days, the concept of punishment ie coercive action is fundamental to correctional treatment in our society." [25] The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity (R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in "adult behaviour" (Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence (Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society. [26] The weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity (R v Hoang [2003] NSWCCA 380 at [45]). A 'child-offender' of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age (R v Bus, unreported, NSWCCA, 3 November 1995; R v Voss [2003] NSWCCA 182 at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth (Hearne at [27])."
3. Senior counsel placed considerable emphasis on the judgment of Hodgson JA in BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 in support of the applicant's position. In that case Hodgson JA (at [3]) expressly accepted the principles set out by McClellan CJ in KT (at [22]-[26]) before proceeding to say the following: "[3] … 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."
4. In the same case Johnson J having set out (at [74]) the principles in KT said (at [75]): "[75] It is, of course, necessary to apply these statutory provisions and statements of principle to the particular circumstances of the case. As McClellan CJ at CL observed in KT v R at 578; [23], the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. The law considers youth and not just biological age. Where immaturity of an offender is a significant contributing factor to the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult."
5. In JM v R [2012] NSWCCA 83; (2012) 223 A Crim R 55 Simpson J, having reviewed the authorities, said (at [108]): "[108] It seems to me that the weight of authority is that the seriousness of an offence is relevant to the emphasis that can be given to the youth of an offender. That does not mean that youth is not an important consideration; but retribution and deterrence cannot, in a case as serious as the present, give way entirely or even substantially to the interests of rehabilitation. It cannot be overlooked that MF-D will for the rest of his life suffer the consequences of the applicant's action."
6. More recently in HJ v R [2014] NSWCCA 21 Garling J (with whom Hoeben CJ at CL and RS Hulme AJ agreed) observed (at [56]): "It is undoubted that the youth of an offender is a relevant factor to be considered in assessing what sentence ought be imposed. The Court makes an allowance for the youth of the offender because immaturity is usually involved. Where that immaturity is a significant contributing factor to an offence, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years: R v Hearne [2001] NSWCCA 37 at [25]."
7. There is no doubt that the applicant's youth at the time of the offending is a relevant factor to be taken into account in considering sentence. However, I am not satisfied that the applicant's offending displayed the level of immaturity for which senior counsel contended, nor am I satisfied that there was any nexus between any such immaturity and the offending.
8. The unusual nature of the weapon was such that the applicant may well have regarded it as something of a novelty which he wished to show his friends. However in my view, any immaturity on the part of the applicant was confined to that circumstance and played no part in what occurred thereafter. I have come to this view for a number of reasons.
9. Firstly, the applicant did not only take the weapon to the function. He also took ammunition. Showing the weapon to his friends because its appearance was novel did not necessitate taking ammunition.
10. Secondly, I am unable to accept the submission that the weapon in the present case was of less significance when compared to other weapons or firearms. The fact that it could be fired unobtrusively rendered it particularly dangerous. The consequences of its use were no less serious than those which can result from the use of a more "conventional" firearm.
11. Thirdly, whilst I accept (as the sentencing judge did) that the offending was not planned or pre-meditated, it nevertheless involved the applicant: 1. retrieving the weapon from the boot of the vehicle at a time when conflict was intimated; 2. deliberately loading it; 3. walking back to the group of persons who had gathered outside the hall; 4. making a provocative statement towards the opposing group; 5. pointing the gun, in a state of admitted anger, towards the deceased and killing him; 6. thereafter kicking the deceased whilst he was attempting to get up from the ground after he had been shot; 7. later dismissing the members of the opposing group as "little kids" who "want to play games".
12. The applicant was not a teenager: KT at [26]. When viewed as a whole his conduct was not impulsive. His behaviour did not reflect emotional immaturity, nor did it reflect a less than fully developed capacity to control impulses: BP at [5] and [6]. On the contrary, the applicant's offending was the culmination of a series of considered and deliberate decisions. It was accompanied by a statement which was inherently provocative. That statement, the applicant's admitted anger at the time of firing the weapon, his assault of the deceased by kicking him (at a time when he was trying to regain his feet after being shot), and the statement which was made immediately following that assault, reflected an apparent desire on the part of the applicant to demonstrate his "superiority" over those in the opposing group. None of that was immature. It was adult like offending.
13. It follows that whilst the applicant's youth remains a relevant factor to take into account in determining sentence, it is not such as to warrant the application of the principles set out in KT and the other authorities to which I have referred. There is nothing to suggest that immaturity played any part in the applicant's offending. This was a crime of considerable gravity which involved the use of a weapon.
14. It is also significant that the applicant was affected by both alcohol and drugs at the time of the offending. He initiated a violent and unprovoked attack upon the deceased. In all of these circumstances, general deterrence remains significant: R v Carroll; Carroll v R [2010] NSWCCA 55; (2010) 77 NSWLR 45 at [60]-[61] per Allsop P and Johnson J (Spigelman CJ, Kirby and Howie JJ agreeing).
15. Giving full weight to the fact the offending was not premeditated or accompanied by an intention to kill, all of the matters to which I have referred support the conclusion that the offending falls at the mid-range of objective seriousness.

The applicant's subjective circumstances

1. There is no doubt that the applicant's formative years were difficult. Having arrived from a foreign country, his teenage years were affected by his drug taking. This, in turn, affected his family life. These are all matters relevant to a determination of sentence and I have taken them into account.

The applicant's criminal history

1. Apart from an offence of robbery in company as a juvenile, the remainder of the applicant's criminal history is limited to offences of drug possession and drug supply towards the lower end of the scale. There is no substantial history of violent offending, and no history at all involving the use of prohibited weapons. The absence of any significant record of previous convictions is a mitigating factor.

The applicant's prospects of rehabilitation

1. Senior counsel for the applicant candidly accepted that the evidence of the applicant's drug taking in custody, and the disciplinary breaches associated with it, ran generally contrary to any favourable conclusion being reached as to the applicant's prospects of rehabilitation. I have taken into account the fact that the applicant has demonstrated a willingness to engage in rehabilitation by undertaking employment and enrolling in various educational courses. However it must be said that in light of his custodial history, his prospects of rehabilitation are guarded at best.

The applicant's conditions of custody

1. The applicant has experienced some difficulties in custody which have seen him placed on some form of protection. The applicant's placement appears to have been brought about by his perceived need for protection, rather than as the result of a specific violent incident or incidents.
2. The applicant also been diagnosed as suffering from anxiety and depression. I accept that this has the capacity to render his time in custody more onerous. However two matters must be noted. Firstly, the applicant concedes that he suffered from anxiety prior to being taken into custody. Secondly, specialist medical treatment has been consistently made available to the applicant, including the prescription of anti-depressant medication. The applicant has chosen not to take that medication from time to time because of a self-assessment that it was not beneficial. That is obviously the applicant's right. However, if that is a course that he wishes to take he faces an obvious difficulty in asserting that his anxiety and depression render his conditions of custody more onerous.

CONCLUSION

1. For the reasons stated, this was serious offending which fell at the mid-range of objective seriousness. I have taken into account the applicant's youth. That said, he was 21 years of age and his offending was not reflective of immaturity.
2. The applicant's subjective circumstances, particularly those surrounding his upbringing, are relevant. The circumstances which saw him migrate to Australia at a young age were obviously unfortunate. It is apparent that the applicant developed a drug habit in his early teens from which he never fully recovered. However whilst these matters are obviously relevant I would not categorise them, or the applicant's subjective case generally, as compelling. In particular, and despite his strained relationship with his step father, the applicant had the support of his family throughout his formative years. That support extended to funding external treatment to assist the applicant in relinquishing his heroin habit.
3. I acknowledge that the applicant's conditions of custody are difficult. However, to the extent that those difficulties emanate from mental illness, appropriate treatment is (and has always been) available to him in custody. The applicant has made some attempt towards his rehabilitation by enrolling to undertake appropriate courses of study, although his progress has been interrupted by his relapse into drug use. For all of those reasons, his prospects of rehabilitation are guarded.
4. Having taken all of these matters into account I have come to the view, in the fresh exercise of the sentencing discretion, that no other sentence is warranted.

ORDERS

1. I propose the following orders: 1. The time for filing an application for leave to appeal against sentence is extended. 2. Leave to appeal is granted. 3. The appeal is dismissed.

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: 26 May 2015