Tukuafu v R

Court of Criminal Appeal (NSW)|2024-04-17|Before: Ward P, Chen J, Huggett J, Mr J

The applicant now seeks leave to appeal against the sentence imposed on three grounds. Grounds 1 and 2 relate to the approach taken by the sentencing judge to the assessment of the objective seriousness of the offences. Ground 3 relates to the approach taken by the sentencing judge to the applicant's juvenile criminal history.

Circumstances of the offences

A summary of the circumstances of the offending are as follows.

Sequence 2/H718; Sequence 3/H718; Sequence 8/H718 (and Sequences 9 and 11/H718 to be taken into account on a Form 1 in relation to Sequence 8/H718)

The second series of offences were detected as a result of a police investigation in relation to encrypted communications using ANOM.

Sequence 11/H718 (Form 1)

MD established a criminal network or group over which he had control. The members of this group had associations with an OMCG and the applicant who was a member of the group became a nominee of that group's south coast chapter.
This was done to facilitate the ongoing protection of his (MD's) criminal network which was involved in the supply of prohibited drugs and the enforcement of drug distribution territory recruitment and direction and participation of violent debt collection. This was assisted through MD's affiliation with the Comanchero OMCG.
On 6 June 2021, police executed a search warrant at MD's home where the applicant and his brother also resided. Five mobile phones were seized, two being located on a bedside table in a bedroom used by MD.
MD used the username "GlenZO" in online communications.
A number of people were identified as members or associates of the Comanchero OMCG during the investigation. This included the applicant and his brother.
Between 21 October 2020 to around the time of his arrest, close to 300 instant encrypted messages were exchanged with the applicant notwithstanding non-association conditions with members of OMCGs and in particular those within the Comanchero OMCG.
On 22 December 2020, MD and the applicant exchanged messages in relation to a "dealer" operating in the area and MD agreeing to set him up. The following messages were exchanged: Applicant: Bro there some In pjcking [sic] gronk selling cracka rack for 5.5 an occal! This dog is gonna fuck me bro how can I beat that............ MD: 7t [sic] prob has eye in it bro or speed but yeah sus it all out and we will get one or Z then order 10 n roll him and shut him down....U can't change what the street has my brother but funk knows how he is getting that for that price we will build him up and me u n mark will roll him
On 28 December 2020, MD and the applicant exchanged messages in relation to setting up a drug deal with an unidentified runner: Applicant: Bro do u have any other runners around the area? Or anyone u have given to ? This cunt dropped ur name to someone I know bro he says this that apparently the stuff he's selling he goes thru you? Its fucking putrid dufJjSO I Imew [sic] it wasn't ours.............As soon as u say no u don't know him I'm chopping him MD: Who is it brother???? And we will set him up dw we will get an earn off it...I got a few boys in the area brother..... but none talk out of school so probably a shit talker Applicant: Remember when we punched on with them finks ? I was sayi g ge's selling designer stuf^ MD: Is it him? Nah he ain't getting thru me but I know who he must be getting it off.... We will smack him for saying it.... Me u n mark will go with your mate that he dropped my name to and then we will pump him and hit him up for 20k'...., Yeh wait we will do it properly
Between 9 April 2020 to 28 May 2021, MD utilised the ANOM platform to source various quantities of cocaine from EM. He supplied the drugs to persons including the applicant.
At the time of the offences, the street value of cocaine was purported to be between $5,500 and $7,500 per ounce or $150,000 and $230,000 per kilogram.

Sequence 2/H718

On 14 December 2020, the applicant messaged MD requesting "rack". MD agreed to supply "3" including two ounces of cocaine for the applicant.
On 17 December 2020, the following exchange occurred, indicating the applicant was working under MD's directions to receive, bag and cut up drugs in preparation for sale: Applicant: Hey bro u kno if there's gonna be any rack here by Thursday. MD: How many you need? Applicant: Two......... yeah he wants one as well...........hey brother I need one tonight? If you kno anyone that can give me one MD: Nah bro I'll have them ready for u and 1 for Rosey Thursday Applicant: Hey brother I spoke to my mote the one who wanted two more he was 600$ short so I said wait till to tomorrow and yeah an the coin for my half is slo bro noe its holidays it should be sweet after weekend bro..... / had a full sole but then hod to halve it no one really likes halves so I've bagged it up and cut it up so I'll be able to smock them out this weekend MD: Ok my brother I'm waiting f>or a delivery to reload but this covid has f,ucked up the travelling to Sydney

Sequence 3/H718

On 1 January 2021, MD contacted the applicant, referring to "4" and, later in the conversation a further "6" when discussing the distribution of prohibited drugs. MD directed the applicant to store the drugs at another "house" to keep them safe, stating: MD: I'll get another 4 tomorrow, but do you still have 1? Applicant: Noh bra all put on tick............ so one of my runners took 2 an another took 1 my runners that took 1 my runner that took 1 my runner that took one said, he'd two weeks the one that took 2 already paid one an should tonight maybe bro MD: fi [sic] get another 6 con u keep them at a house somewhere safe for me? But if they touch them they know whots gonna happen so just moke [sic] sure plz bro............We got a stay on top of our game here bro this house will be in my name soon and u will be in my name soon and u will be paroled here also so u know we will be getting watched'

Sequence 8/H718

This offence relates to four ounces of cocaine and discussions about the price of the drugs and potential profits as addressed below at [44].

Sequence 9/H718 (Form 1)

Intercepted communications reveal that the sums of $7,500, $22,300 and $14,200 (totalling $44,000) were the proceeds of criminal activity.
On 4 January 2021, the applicant messaged MD indicating he was in possession of three ounces of cocaine and they discussed pricing as follows: Applicant: The 7.51 owe u should be here by the weekend bro I jiat give another one out on Tik an got 3 here MD: Them, ones are 5700 bro so you con moke [sic] more Applicant: What ur charging 5.7 /or them?... Are you sure bro? just stick with 6 so we con both make still bro coz I'm happy with 6 brother? MD: These ones you can have for 5750 that way u make on extra Ik xxx Applicant: Sweet bro thank u os long a ur not losing out brother xx
On 8 February 2021, the applicant and MD discussed outstanding debts, totalling $22,300, for the supply of prohibited drugs. Applicant: Bro my runners fucked up not bad but no one wonts rock he's got he's obviously jumped on it to much he was suppose to hove 13 for me he's only got 2 grand one of the boys in nowra owes me 6.3 and another owes 3 so there is enough to cover what I owe Just cunts are taking their time.. I'm owed more as well but that's will cover it. I know its been a while but iv been pressuring my runners for weeks now' MD: Yeh I Just need to pay my bill brother so how much will u have today ?? And will the HI bro have the 3k he owes? I have old mote up my ass to fix it all up brother otherwise I wouldn't be stressing
On 15 February 2021, the applicant and MD discussed proceeds and outstanding debts, totalling $14,200 for the supply of prohibited drugs. Applicant: Have you been keeping track bro what do 1 owe u there's another 1300 on bench should have 7 grand on Wednesday MD: U owe 14.2 now take off 1300.............. 1 have 1 left if u need it.......18.6
On 2 September 2021, the applicant was charged in relation to the drug-related offending.

The sentencing judgment

In his ex tempore judgment, the sentencing judge summarised both statements of agreed facts and addressed the objective seriousness of the offences and the applicant's personal circumstances.
Before turning to the grounds of appeal, nine matters are noted in relation to the sentencing judgment.
One, in relation to the s 112(3) offence, the sentencing judge referred to the victim impact statement prepared by the male victim. [1] It described that he: … still suffers anxiety and nightmares and post-traumatic stress disorder. He has multiple scars and he is seeking treatment for lung function damage. His lung capacity is diminished. He is often short of breath. He says he cannot yet work to full to capacity, and that the whole incident has affected his family. There have been expenses, including for the helicopter ambulance. His social life has suffered, and his child has suffered. His child fears bad guys coming and hurting him again. He hopes everything will improve with time and treatment.
Two, the sentencing judge found that the s 112(3) offence was "on any measure" a serious example of this type of offence. Noting the joint position of the parties that it fell within the "fairly broad 'middle of the range'", his Honour stated that although he was "loath[e] to fix matters on some notional and abstract scale", the offence fell "more to the upper end" of the "middle of the range" for the following reasons. [2]
It was committed upon a home late at night. The male victim was repeatedly assaulted as he attempted to defend himself and his family. Although very unprofessional, some planning was involved. A knife was brought to the home and used to commit the offence. The male victim suffered "life threatening injuries as a result of the stabbing". [3] An improvised weapon (a metal shock absorber) was brought to the home and used. A third weapon (a power board) was used to assault the male victim. The offence was committed in the presence of a child and the male victim suffered harm which likely had long term physical and psychological consequences.
Three, the sentencing judge found that the s 25(1) offences were serious, involving the distribution of a relatively large quantity of illicit drugs into the community for profit. His Honour noted that the applicant's role included bagging and cutting the drugs and storing drugs for his principal and that while the applicant was acting under the direction of and subordinate to a principal, he was not dealing directly with drug users and was above those who were his runners. The sentencing judge described the applicant as "an eager apprentice, learning the ropes. He had to pay the principal's bills and then recover what he advanced. He was learning to keep track of his debts and amount owing". [4]
Four, the sentencing judge noted that an aggravating factor was that the applicant committed the offences while on parole. His Honour also noted that the applicant breached his intensive correction order by committing the two offences on the Form 1 document attached to Sequence 8/H718.
Five, the sentencing judge referred to the "comprehensive" psychological report of Ms Megan Godbee that documented aspects of the applicant's personal circumstances. This included his experience of domestic violence as a child, abandonment issues involving both parents and an absence of appropriate role models, his lack of opportunity to connect to his Tongan culture and juvenile detention from the age of 14 which was where he met the majority of his associates. The applicant also reported being sexually assaulted in detention resulting in post-traumatic stress disorder, anger and aggression.
Ms Godbee was sceptical of a diagnosis of attention deficit hyperactivity disorder. She noted that the applicant took up drugs and alcohol well before he was mature enough to make rational decisions. She concluded he may have obsessive compulsive disorder and suffered some distorted thinking about violence. Ms Godbee also noted possible institutionalisation.
The sentencing judge referred to Ms Godbee's opinion that "after cycling in and out of custody for most of his teens, Mr Tukuafu entered adulthood as a traumatised young man with substance abuse issues, distorted believes [sic] about violence, the belief that the [sic] belonged with other anti-social peers and a feeling of being unwanted. These factors all left him vulnerable to gang associations". [5] His Honour also referred to a letter from a teacher at Illawarra Sports High, opining that the applicant had been exploited by his criminal associations.
His Honour accepted that the applicant's background reduced his moral culpability or blameworthiness. [6]
Six, the sentencing judge found no evidence of remorse or insight observing that the applicant did not appear capable of demonstrating such sentiments. His Honour noted however that jail was unlikely to assist the applicant to foster such sentiments although accepted that the applicant had taken responsibility for his offending.
Seven, the sentencing judge referred to the Juvenile Justice report finding that with maturity and prosocial support, the applicant has "some prospects for the future". [7] His Honour made specific reference to the applicant's youth and immaturity and its potential to have contributed to the offending. His Honour recognised the importance of promoting the applicant's rehabilitation which, if successful, would protect the community. [8] His Honour noted that on a positive note, Ms Godbee considered that while the applicant had not engaged in therapeutic intervention, he was beginning to recognise his problems with substance abuse and violence.
Eight, although the sentencing judge did not expressly state that he found special circumstances, he identified the circumstances that grounded that finding. [9] This included the applicant's risk of institutionalisation, the fact he required treatment for trauma-related mental health conditions and drug abuse problems and the onerous nature of his custodial conditions as a result of the Covid-19 restrictions. Accordingly, the sentencing judge reduced the statutory ratio in the aggregate sentence imposed to 63%.
Nine, the sentencing judge recognised the importance of totality and the need to "make downwards adjustments to achieve an appropriate relativity between each crimes [sic] objective seriousness, the totality of the offender [sic] and the offender's subjective case". [10] While his Honour determined that there "must be some accumulation as between the offences", he found there should be "significant concurrency so far as the drug supply matters because they all relate to instances of the same type of continuing criminal behaviour". [11]

Ground 1: injuries to the male victim of the s 112(3) offence

Ground 1 asserts that the sentencing judge erred by finding (in relation to the s 112(3) offence) that the male victim "suffered life threatening injuries as a result of the stabbing". [12]

The applicant's submissions

The applicant contends this finding was erroneous for three reasons.
First, while the applicant accepts that the injuries suffered by the male victim were serious, he argues there was no evidence to support the challenged finding pointing to an absence of direct evidence from a medical practitioner that the injuries to the chest and/or head of the male victim were life threatening.
Second, the applicant argues that the sentencing judge impermissibly inferred that the injuries to the male victim were life threatening based on the fact he was placed into a coma.
Third, the applicant argues that the sentencing judge impermissibly used the challenged finding to establish the circumstance of aggravation enumerated in s 21A(2)(ib) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("CSPA").

The respondent's submissions

The respondent contends that the challenged finding was one that was open on the available evidence. The respondent further contends that the sentencing judge did not equate "life threatening injury" with a "grave risk of death" nor did his Honour treat any aspect of the injury occasioned to the male victim as being an aggravating factor. Rather, it is argued that the sentencing judge properly had regard to the gravity of the injury suffered by the male victim in the course of considering the objective seriousness of the s 112(3) offence.

Consideration of Ground 1

In relation to the second issue raised by Ground 1, the asserted error is premised upon this Court concluding that the sentencing judge impermissibly inferred that the male victim's injuries were life threatening because he was placed into an induced coma. However, when the sentencing judge made the challenged finding, his Honour made no reference at all to the fact the male victim was placed into an induced coma.
In such circumstances, the applicant pointed to an observation made during the course of the submissions during the sentence hearing. Namely, … two men, late at night, come to the door. Mr Tukuafu rips the door off, the screen door, he's carrying a knife, the other man has a shock absorber. They violently assault the male victim. In the course of that assault, the knife is produced and used by Mr Tukuafu and the life threatening injury results. Induced coma equals life threatening in my view. He makes a physical recovery. There are matters in the victim impact statement which are consistent with a stab wound and the psychological impact but it's a life threatening injury with a bladed weapon. [13]
Unless providing assistance in elucidating abbreviated statements appearing in remarks on sentence, exchanges in the course of making submissions do not form part of the reasons for sentence and do not provide a source for detecting error in the process by which a sentence is reached (R v A [2004] NSWCCA 292 at [12]; Hughes v Regina [2008] NSWCCA 48 at [33]).
At no time in the sentencing judgment did the sentencing judge make a finding that the injuries to the male victim were life threatening based on the fact he was placed into a coma. This aspect of Ground 1 should be rejected.
In relation to the first issue raised by Ground 1, on the basis of the agreed facts, the sentencing judge referred to the fact that the applicant produced a knife and stabbed the male victim to the upper chest, [14] that the male victim suffered a punctured lung which required a drain to be placed in his chest and staples to close the wounds, [15] that the male victim was seeking treatment for lung function damage and that his lung capacity was diminished and he was often short of breath. [16]
Furthermore, the applicant accepts that it was permissible for the sentencing judge, when assessing the objective seriousness of the s 112(3) offence, to have regard to the following additional pieces of evidence when making the challenged finding: 1. the applicant described (to his brother) that he "stabbed the bloke in the chest with a big knife" and was "waiting to hear if he died or not"; [17] 2. the applicant said (to his brother), please "pray for the guy survives [sic]"; [18] 3. the applicant described (to his brother) that the "while [sic] blade went straight into his diest [sic], he started vomiting blood straight away". [19]
In my view, the evidence considered together established beyond reasonable doubt that the male victim suffered life threatening injuries as a result of the stabbing. Direct evidence from a medical practitioner was not required. This aspect of Ground 1 should be rejected.
In relation to the third issue raised by Ground 1, contrary to what the applicant submitted the sentencing judge did not use the challenged finding to establish the circumstance of aggravation prescribed in s 21A(2)(ib). His Honour did not state (nor find) that the consequences of being stabbed to the chest "posed a grave risk of death" (being the language employed by s 21A(2)(ib)) which is itself a different concept to a "life threatening injury". The sentencing judge was required to determine the objective seriousness of the s 112(3) offence and the gravity of the injury occasioned to the male victim in the course of committing this offence was a matter relevant to that determination. This aspect of Ground 1 should be rejected.
It follows that there was no error or misapplication of principle and Ground 1 should be rejected.

Ground 2: the Form 1 offences

Ground 2 asserts that the sentencing judge erred by taking the Form 1 offences into account when assessing the objective seriousness of each principal offence.
The asserted error is said to arise as a result of the following passage in the sentencing judge's reasons under the heading Form 1 matters: There are Form 1's attached to the last of the supply matters and to the break and enter. It is appropriate that I deal with them. He has admitted his guilt for those matters. There must be an increase in sentence. That increase recognises the need for personal deterrence and retribution for the crime for sentence. So far as the home invasion is concerned, the assault occasion [sic] actual bodily harm was a serious example of its type. While it informed in part the objective seriousness of the principal offence, and while I accept that it was his co-offender as part of the joint criminal enterprise who inflicted the injuries, it is a matter that does independently require some increase in the sentence to reflect the need for personal deterrence and retribution. So far as the drug supply matters are concerned, all of the matters for sentence were conducted for profit, and what was done required organisation and was part of organised criminal activity. Here the Form 1 matters did inform my assessment of the objective seriousness of each of the supply counts and as such they should not be double counted against the offender. But the gang activity extended beyond the matters for sentence, including the offender's nomination for membership of an outlaw motorcycle gang, and involved other uncharged activity, including apparently discouraging competition from other dealers. While the proceeds matter is part and parcel of the matters for sentence, the gang activity requires some increase in the matter for sentence, for the reasons I have indicated. [20] (Emphasis added)

The applicant's submissions

The applicant submits that the sentencing judge's remarks in italics in the preceding paragraphs establish that his Honour had regard to the offences on the Form 1 documents when assessing the objective seriousness of the related principal offence.
The applicant argues that such an approach is contrary to longstanding authority that an offence on a Form 1 document does not change or alter the objective seriousness of the principal offence to which it is to be taken into account (Attorney General's Application under s 37 of the Crimes (Sentencing) Procedure Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [39], [42]-[43] ("Attorney General's Application"); Stephens v R [2010] NSWCCA 93 at [69] ("Stephens"); RO v R [2019] NSWCCA 183 at [53]-[58] ("RO"); Singh v R [2021] NSWCCA 96 at [59]-[61] ("Singh"); Blackett v R [2021] NSWCCA 210 at [39]-[40] ("Blackett"); DPP (NSW) v TH [2023] NSWCCA 81 ("TH"); Kapila v R [2024] NSWCCA 48 at [41] ("Kapila")). To the extent Flick v R [2023] NSWCCA 197 ("Flick") is authority for the proposition that an offence on a Form 1 document can informing the objective seriousness of the principal offence, the applicant contends that Flick is wrong or should be distinguished.

The respondent's submissions

The respondent submits that the sentencing judge did not err in his approach to the Form 1 offences, contending that a fair reading of the reasons for sentence indicates that his Honour appreciated that he was not sentencing the applicant for the Form 1 offences but took them into account in a manner consistent with authority. This is said to be demonstrated by the sentencing judge's recognition that the s 59(2) offence was a serious offence, which required some increase to the sentence otherwise appropriate to the s 112(3) offence to reflect the need for personal deterrence and retribution in a manner consistent with authority. [21]
Alternatively, the respondent contends that the facts of each Form 1 offence were relevant to the circumstances of the related principal offence because the facts making out the s 59(2) offence demonstrated that the violence encompassed by the s112(3) offence was not isolated to the male victim but extended to the female victim, and the facts making out the offences on the second Form 1 document were relevant to a proper consideration of the objective gravity of the principal supply offence in that it was committed for profit and committed while the applicant was affiliated with a criminal group.

Consideration of Ground 2

An essential part of the sentencing process is the assessment of the objective gravity of each offence for which an offender is to be sentenced (whether it be an offence with or without a standard non-parole period) (R v Campbell [2014] NSWCCA 102 at [27], [29]; FL v R [2020] NSWCCA 114 at [58]; Camilleri v R [2023] NSWCCA 106 at [21]-[22]). That sets the parameters of the appropriate sentence and ensures the sentence imposed is proportionate to the offence committed (Hoare v The Queen (1989) 167 CLR 348 at [354]; R v McNaughton (2006) 66 NSWLR 566 at [15]; DS v R; DM v R [2022] NSWCCA 156 at [68]).
Division 3 of Part 3 of the CSPA is headed "Taking further offences into account". It creates a procedure whereby the prosecutor can file a document in court (known as a Form 1 document) specifying another offence with which an offender has been charged but not convicted (called a "further" offence (or offences)) and for which he or she requests to be "taken into account" when being dealt with for another offence before the court for sentence (called the "principal" offence).
Beyond stating that the penalty imposed for the principal offence cannot exceed the relevant maximum penalty, Division 3 does not state how a further offence is to be taken into account when dealing with (that is, when sentencing) an offender for a principal offence, nor the weight to be given to a further offence. How a further offence is to be taken into account when sentencing an offender for a principal offence has been the subject of a number of cases before this Court. To consider Ground 2 it is necessary to review the authorities in relation to the proper approach to Form 1 offences.

A review of the authorities

In Attorney General's Application, this Court promulgated a guideline judgment in relation to Division 3. One of the issues identified by the Attorney General related to the meaning of "take into account". Spigelman CJ (with whom Wood CJ at CL, Grove, Sully and James JJ agreed) observed that the starting point was the statutory power afforded by Division 3. The following principles were stated: 1. Although a sentencing court must give effect to the statutory scheme provided, that must be done in the context of the basic common law principle that no one should be punished for an offence of which s/he has not been convicted (at [23]). 2. A sentencing court is sentencing an offender only for the principal offence and not for the further offence (or offences) on the Form 1 document for which there must be an admission of guilt but there is no conviction. It is no part of the task of a sentencing court to determine appropriate sentences for a further offence or to determine the overall sentence appropriate for all offences and then apply a "discount" for a further offence (sometimes referred to as a top down approach) (at [39]). 3. A sentencing judge gives due recognition to the gravity or seriousness of a further offence by giving greater weight to two matters always material in the sentencing task - personal deterrence and retribution. The weight to be afforded to these matters will be limited by the maximum penalty prescribed for the principal offence and the principle of totality (at [42]). 4. Personal deterrence and retribution are not the only matters to which the commission of further offences might impinge or impact. However, when a sentencing court is dealing with an offender for a primary offence in circumstances where there are further offences to be taken into account, the focus must be on sentencing for the primary offence (at [43]).
Stephens was an appeal against a sentence imposed for four offences related to the sexual assault of a young woman. A number of further offences were taken into account when sentencing the applicant for two counts (Counts 2 and 3). All further offences were committed against the same woman and in the same course of conduct as the principal offences were committed.
The sentencing judge indicated that his categorisation of the objective seriousness of each principal offence was based in part upon the impact of the further offences. Error was established because the applicant had been sentenced on the basis that the further offences increased the objective seriousness of the principal offences charged in Count 2 and Count 3. Citing Attorney General's Application, Fullerton J (with whom Schmidt and Latham JJ agreed) observed at [69] that offences on a Form 1 document cannot be used to "inflate" the objective seriousness of the principal offences.
Abbas, Bodiotis, Taleb and Amoun v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 was an appeal heard by five judges of this Court against sentences imposed in relation to drug offending. For Abbas, Bodiotis and Amoun, there were further offences on Form 1 documents. In separate judgments, the Court confirmed that an offender is not being sentenced for an offence on a Form 1 document. Following Attorney General's Application, Bathurst CJ held at [23] that the additional weight which may be afforded to retribution and specific deterrence where there are further offences on a Form 1 document attaches to the principal offence and not to the further offence.
RO was an appeal against a sentence imposed for eight offences involving acts of sexual intercourse (all of which attracted a standard non-parole period). The applicant also admitted his guilt in relation to a further five offences on four Form 1 documents. All further offences were committed upon the same complainant however most were committed on occasions separate in time to the principal offence to which the further offence attached.
The sentencing judge found that the objective seriousness of at least one principal offence (Count 1) was elevated because of the further offence on the Form 1 (committed on a different occasion to Count 1). The Crown conceded this was an error. Beech-Jones J (as his Honour then was) (with whom Bathurst CJ and N Adams J agreed) stated at [55]-[58]: It is clear from this passage that in assessing the objective seriousness of the offending embraced by count 1, the sentencing judge took into consideration the conduct of the applicant in relation to the Form 1 offence described at [12] which concerned another incident at a different time. The sentencing judge found that the Form 1 offence elevated the objective seriousness of the offending. This involved error at two levels. First, it is erroneous because the assessment of the objective seriousness of a criminal offence that carries a standard non‑parole period "is to be determined wholly by reference to the nature of the offending" for that offence and not other criminal conduct engaged in on a different occasion (Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]). Second, it is erroneous because it is inconsistent with the Sentencing Procedure Act for Form 1 offences to be considered in this manner. For present purposes, the relevance of the Form 1 offences to the exercise of the sentencing discretion for the subject offences was that they demonstrated an "additional need for personal deterrence and retribution" (Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 at [23] (Bathurst CJ); see also at [64] (Basten JA); at [104] (Hoeben CJ at CL) and at [154] (Garling J); Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]). It follows that the Crown's concession of error in this aspect of the sentencing judge's reasoning was well founded.
In resentencing the applicant, Beech-Jones J observed that the assessment of the objective seriousness of a principal offence had to be undertaken without reference to the accompanying further offence which was to be considered only as demonstrating an additional need for personal deterrence and retribution in accordance with Attorney General's Application.
LN v R [2020] NSWCCA 131 ("LN") was an appeal against a sentence imposed for an offence of murder in relation to a young child. The applicant had been living with the child's mother for seven weeks before the murder and during that period, the child suffered physical, psychological and verbal abuse. These alleged events were uncharged and were not admitted (and thus were not and could not have been before the Court on a Form 1 document).
Basten JA observed at [54] that other alleged acts can be relevant to provide the context of an offence for which sentence is to be imposed and "that context may either render the objective seriousness of the offending greater than would otherwise have appeared". His Honour stated at [55] that it was not erroneous to assess the objective seriousness of the murder offence by reference to uncharged assaults by the offender upon the child in the period leading up to the child's murder.
Hamill J referred at [151] to the "fundamental proposition" that an offender is not to be punished for offences with which he or she has not been charged and identified four ways in which the uncharged alleged assaults upon the child could be used when sentencing the offender for the child's murder. Firstly, to establish that the murder was not an aberration and/or to deny leniency on the basis of good character; secondly, to dispel the suggestion that the offence of murder was an isolated incident; thirdly, to support findings as to the offender's motive and state of mind at the time of the child's murder; and fourthly, to establish that the victim was vulnerable and that the offender knew of that fact because of the earlier assaults.
RA Hulme J accepted the statements of principle regarding the potential use of uncharged conduct as stated by Basten JA and Hamill J (although disagreed with Hamill J that the sentencing judge had erred).
As I have observed, LN was a case involving the use of uncharged (and not admitted) offending. It does not greatly assist the consideration of the proper approach to be followed in relation to charged offences on a Form 1 document which is prescribed by the CSPA in the context of common law principles applicable to sentencing for criminal offences.
Singh was an appeal against a sentence imposed for offences arising out of the stabbing, sexual assault and detention of a woman at knife point. The applicant was sentenced for five offences, four of which attracted a standard non-parole period. He also admitted his guilt in relation to a further four offences on three Form 1 documents, all of which were committed upon the same complainant during the one criminal episode.
The sentencing judge remarked that "where [the offences] are attended by matters [on] a Form 1, they are rendered more serious". The sentencing judge also found that the assessment of the objective seriousness of particular principal offences were aggravated by the related Form 1 offences.
Noting the Crown's concession that the sentencing judge had erred in her approach to the further offences on the Form 1 document by finding that they "aggravated" or elevated the objective seriousness of the related principal offence, Beech-Jones J (with whom Bathurst CJ and Wilson J agreed), found the concession to have been properly made and upheld the ground of appeal. In doing so his Honour referred to RO at [57] and Stephens at [69].
Blackett was an appeal against a sentence imposed for five sexual offences committed upon the same victim and one offence of possessing child abuse material. The applicant also admitted his guilt in relation to further offences on three Form 1 documents, some committed at or around the same time as the related principal offence and others committed on a different occasion. When assessing the objective seriousness of the possess child abuse material offence, the sentencing judge had regard to child abuse material encompassed only by the Form 1 offence.
Basten JA (with whom Adamson and Campbell JJ agreed) stated at [39]-[40]: Further, as provided by s 33(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) … the further offences are taken into account "in dealing with the offender for the principal offence". It follows that the Court is sentencing only for the principal offence: Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002). There was no contention in the present case that it was other than an error to assess the objective circumstances of the principal offence by reference to the offending identified on the Form 1. As explained by Bathurst CJ in Abbas, Bodiotis, Taleb and Amoun v R the fact that there have been further offences "may demonstrate the greater need for personal deterrence and retribution in respect of the offence charged"; further, "[t]hat approach would generally, but not universally, lead to the imposition of a sentence longer, and in some cases significantly longer, than would otherwise be required if the Form 1 offences were not taken into account". But those conclusions do not require or depend on a finding as to the objective seriousness of the charged offending based on the Form 1 material. The applicant's submissions as to error in this respect should be accepted.
Ragg v R [2022] NSWCCA 150 ("Ragg") was an appeal against a sentence imposed for 13 offences involving the bashing, attempted burning, sexual assault and intimidation of the applicant's partner. Several of the offences attracted standard non-parole periods. Eleven of the offences occurred on one day (including four offences of aggravated sexual assault). The remaining two offences occurred the following day when the applicant threatened the victim against pursuing charges with police.
When sentencing the applicant for the offences of aggravated sexual assault, the sentencing judge found that "[e]ach of the individual offences is relevant to the seriousness of the other, whether committed before or after an individual offence, as are the overall circumstances of the commission of the offences" (at [23]). The sentencing judge also found beyond reasonable doubt that the applicant premeditated the offences of aggravated sexual assault when he directed the victim to drive to a deserted area, although found that the offender had not determined the exact nature or extent of that offending.
Relying on RO and Singh, the applicant contended that it was not permissible to have regard to one offence (which was charged and for which the offender was to be sentenced) when assessing the objective seriousness of another offence (which too was charged and for which the offender was to be sentenced).
Beech-Jones J (with whom N Adams and Lonergan JJ agreed) stated at [34] that reliance upon RO and Singh was misplaced. That was because in both RO and Singh the sentencing judge erred by assessing the objective seriousness of an offence by reference to an offence on a Form 1 (whether that further offence be committed on another occasion to the principal offence (as was the case in RO) or whether that further offence was committed at or around the same time as the principal offence (as was the case in Singh).
Noting that the case at hand did not involve any offence on a Form 1 document, Beech-Jones J stated at [38]: Both RO and Singh are authority for the proposition that it is erroneous to use a Form 1 offence per se in assessing the objective seriousness of the substantive offence. This case does not concern a Form 1 offence. However, neither RO or Singh are authority for a blanket proposition that the facts and circumstances of a related offence can never be relevant to the assessment of the objective seriousness of the subject offence. There is no such proposition. The real issue is not so much whether the facts and circumstances of a related offence might be capable of affecting the assessment of the objective seriousness of the subject offence, but how they can affect that assessment.
His Honour observed that such facts and circumstances are sometimes considered as part of the context of the offending (as recognised by Basten JA in LN at [94]) and for the purposes identified by Hamill J in LN at [95]. His Honour went on to state at [44] that although LN was dealing with uncharged acts, that there "is no reason why the discussion in that case is not applicable to the circumstances of this case", in particular, where the assessment of the objective seriousness of one offence (for which the offender was to be sentenced) refers to another offence (for which the offender was also to be sentenced) that was committed close in time. Referring to Hamill J's analysis in LN, his Honour rejected the assertion that the sentencing judge erred by finding that when the applicant committed the first offence of aggravated sexual assault, his state of mind or intention was for that act to form part of the total brutalisation of the victim (because of the other violent sexual assaults he intended to commit).
Courtney v R [2022] NSWCCA 223 was an appeal against a sentence imposed for an offence of using an offensive weapon (a motor vehicle) to avoid lawful apprehension (the principal offence). The applicant also admitted his guilt in relation to a further offence of take and drive conveyance without consent on a Form 1 document which was committed at or around the same time as the principal offence. A related offence of driving while disqualified was also before the Court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).
The applicant contended that the sentencing judge erred when assessing the objective seriousness of the drive while disqualified offence by taking into account the fact the vehicle was stolen (the Form 1 offence) and was used to evade police (the principal offence). The Court found that the sentencing judge had erred by finding that the s 166 offence elevated the objective seriousness of the principal offence thereby engaging in a form of double punishment.
TH was a Crown appeal against a sentence imposed for four sexual offences committed upon the respondent's stepson over a four-year period, three of which attracted a standard non-parole period. The respondent also admitted his guilt in relation to three further offences on three Form 1 documents, one offence having been committed on a completely different occasion and two offences having been committed at or around the same time as the related principal offence. Additionally, under the heading "context evidence", the applicant agreed that the offences to which he pleaded guilty and/or acknowledged his guilt were not isolated acts and that he frequently engaged in sexual activity with the victim.
In addressing the "significance" of the offences on the Form 1 document to the sentencing exercise, Beech-Jones CJ at CL (with whom Garling and Yehia JJ agreed) said at [23]-[24]: First, the Form 1 offences can be taken into account on sentencing as demonstrating an "additional need for personal deterrence and retribution" in respect of the substantive offences on the indictment (Abbas v The Queen; Bodiotis v The Queen; Taleb v The Queen; Amoun v The Queen (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [23] (Bathurst CJ); see also [64] (Basten JA), [104] (Hoeben CJ at CL) and [154] (Garling J); "Abbas" and Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]; "Attorney General's Application"). To this extent, the attachment of a Form 1 offence to a substantive offence may warrant the imposition of a greater sentence for the latter (Attorney General's Application at [18]). However, the inclusion of an offence on a Form 1 does not of itself increase the assessment of the objective seriousness of the substantive offence (Singh v R [2021] NSWCCA 96), although the facts and circumstances of the Form 1 offence (or uncharged acts) may be relevant to the assessment (see Ragg v R [2022] NSWCCA 150 at [38]−[47]; "Ragg"). For example, such circumstances might place the substantive offence in context (LN v R [2020] NSWCCA 131 at [54] per Basten JA; "LN") or, if they involve the infliction of harm on the victim immediately prior to the substantive offence, they might demonstrate the victim's vulnerability when the substantive offence was committed (LN at [159]; Ragg at [44]).
His Honour recognised however that as he observed in Ragg, the facts and circumstances of a further offence can have relevance when sentencing an offender for the purposes explained by Hamill J in LN (as described at [95] above).
Flick was an appeal against a sentence imposed for six offences of aggravated (persons present) break enter and steal, each attracting a standard non-parole period, one offence of entering a building with intent to commit an indictable offence, one offence of assaulting a law officer and one offence of intentionally damaging property by fire. Six further offences of stealing a motor vehicle were taken into account on five Form 1 documents. Each further offence was committed as a result of the commission of five of the principal offences. Expressed differently, as a result of committing five of the aggravated break, enter and steal offences, the applicant obtained possession of the keys to six prestige vehicles which enabled the theft of those vehicles.
The applicant submitted that the sentencing judge erred by having regard to the further offences on the Form 1 documents when assessing the objective gravity of the related principal offence. In support of this ground of appeal, the applicant relied upon the observations of Beech-Jones J at [56]-[57] in RO.
Wilson J (with whom Meagher JA and Sweeney J agreed) stated at [74] that the observations of Beech-Jones J at [57] in RO (at [91] above) cannot be used as a broad statement of principle applicable in every case regardless of individual circumstances. Her Honour observed that in RO the offence on the Form 1 document to which the sentencing judge improperly had regard when assessing the objective seriousness of the principal offence, was a different offence committed on another occasion. Her Honour accepted at [74] that the use of an "unconnected" crime as a feature relevant to the objective seriousness of a principal offence is plainly erroneous.
Wilson J noted however that the situation in the present case was different. Her Honour went on to state at [75]-[76]: In each instance the offence concerning the theft of the motor vehicle that had been placed on the individual Form 1 document to the associated offence of aggravated break enter steal before his Honour for sentence was inextricably linked to the principal offence. The break and enter offences were, in each case, committed with a view to stealing the keys to a valuable car (by inference) observed to be associated with that premises. Whilst the Crown necessarily charged the theft of the cars separately to the s 112(2) offences, as in each instance the vehicles stolen were not taken from within a dwelling house or other building, the two crimes were directly and closely linked. In a decision following RO, Beech-Jones CJ at CL discussed it and another similar case, Singh v R [2021] NSWCCA 96, and made it clear that it was open to sentencing courts to have regard to an offence on a Form 1 document when assessing the objective seriousness of the principal offence when the Form offence was important to the assessment of the criminality involved.
After referring to Ragg at [38]-[39] and TH at [24] where Beech-Jones CJ at CL (as his Honour then was) confirmed what he had said in Ragg, Wilson J stated at [78]: The theft of the motor vehicles constituted the achievement of the principal aim of the applicant in committing the s 112(2) offences: he was able to secure the keys to the relevant vehicles from the dwelling houses, thus enabling the cars to be easily stolen, with no damage occasioned to them by a forced entry or forcibly starting the vehicle. Assessing the gravity of the s 112(2) offences without reference to the subsequent theft of the cars would have been entirely artificial and led to an incorrect assessment of their gravity. The Form 1 offences informed the assessment of the gravity of the principal offending and placed it in a proper context. There was no error in his Honour's assessment and the regard he had to the offences on the Form 1 documents for that purpose.
In dismissing the ground of appeal asserting error by having regard to the further offences on the Form 1 documents when assessing the objective gravity of the related principal offence, Wilson J stated that on re-sentence (as a result of success on another ground of appeal of no present relevance), it was appropriate to consider the broader context of the commission of each principal offence by reference to the car theft offences on each Form 1 document.
Kapila was an appeal against a sentence imposed for dealing with the proceeds of crime (Count 1) and attempting to dishonestly obtain a financial advantage by deception (Count 2). Neither offence attracted a standard non-parole period. The applicant also admitted his guilt in relation to a further offence of participating in a criminal group to be taken into account when sentencing him for Count 2. It does not appear that Flick was brought to the Court's attention.
The applicant contended that the sentencing judge erred in the manner in which the Form 1 offence was taken into account. In particular, it was argued that the sentencing judge double-counted the Form 1 offence (which attached to Count 2) by having regard to it when assessing the objective seriousness of Count 1.
In dismissing the appeal, Weinstein J (with whom Harrison CJ at CL and Button J agreed) found that the sentencing judge carefully assessed the objective seriousness of both Count 1 and Count 2, noting the context of the Form 1 offending and attached the Form 1 offence to Count 2 as he was obliged to do in accordance with s 33 of the CSPA. His Honour also noted the concession of the applicant's counsel that the authorities demonstrate that it is permissible for the circumstances of a Form 1 offence to be considered with respect to a charged offence to which it does not attach by way of context, however observed that care would be required to guard against double counting.
It has been necessary to review in some detail the authorities to which the Court has been referred because of the competing arguments regarding the law in relation to the proper use of further offences on a Form 1 document.
Having done that it is convenient to deal now with the applicant's argument that the authorities since Attorney General's Application demonstrate the consistency of the law regarding the proper approach to an offence on a Form 1 document, that being that it will be erroneous to have regard to a further offence of any type on a Form 1 document when assessing the objective seriousness of the related principal offence irrespective of considerations of proximity or relatedness of the further offence to the principal offence. Secondly, the submission that in so far as Flick is authority for the principle that it may be appropriate to have regard to a further offence when assessing the objective seriousness of a principal offence where it is "inextricably linked" to the principal offence, Flick is wrong and should not be followed or should at the very least be distinguished.
In relation to the latter submission, the respondent contends that Attorney General's Application left open (at [43]) the possibility that a further offence on a Form 1 document may impinge or impact upon matters other than personal deterrence and retribution and submits that Flick represents a principled development of the law. The respondent therefore argues that Flick is authority for the proposition that an offence on a Form 1 document can be considered when determining the objective seriousness of a related principal offence and argues that the applicant has not demonstrated that Flick should not be followed or should be distinguished.
I do not consider that the resolution of Ground 2 requires this Court to determine whether Flick should be followed or not. That is because the facts and circumstances of the three further offences on the two Form 1 documents before this Court are not "inextricably linked" to their related principal offences as was the case in Flick. While it can be accepted that the s 59(2) offence occurred at the same time as the s 112(3) offence, it was a separate offence committed upon a different victim. Furthermore, it was not the purpose of the s 112(3) offence, the gravity of which can be understood and assessed without regard to the s 59(2) offence. Even less so are the knowingly deal with the proceeds of crime and participate in a criminal group offences "inextricably linked" to the Sequence 8/H718 supply offence. While they are related to the latter offence and there is overlap in the criminality of these further offences with the Sequence 8/H718 offence, they are not "inextricably linked" in the manner recognised in Flick.
Accordingly, putting Flick to one side, the authorities reveal the different ways evidence of further offending can come to be before a sentencing court and the consistency of approach regarding how such evidence can properly be used.
Where further offending is in the form of uncharged offending (whether committed at or about the same time as charged offending or at a different time and whether committed upon the same victim or another victim), the statutory scheme set out in Division 3 of the CSPA has no application.
Where further offending is in the form of charged offending before the court where the statutory preconditions for the Form 1 procedure have been met (which includes the residual discretion provided by s 33(2)), the authorities establish the following propositions in relation to the permissible use of evidence of a further offence on a Form 1 document when sentencing an offender for an offence (whether it be an offence with a standard non-parole period or not): 1. A further offence may increase the weight to be afforded to personal (or specific) deterrence and retribution. 2. A further offence may provide the context of the offending for which an offender is to be sentenced. 3. A further offence may demonstrate that a principal offence was not isolated or aberrant but is representative of an ongoing course of conduct. 4. A further offence may inform an offender's moral culpability. 5. A further offence may establish that an offender is not a person of good character. 6. A further offence may establish an offender's motive, state of mind and/or intention at the time the principal offence is committed. 7. A further offence may establish an offender's awareness of the complainant's vulnerability.
Taking a further offence on a Form 1 document into account for one or more of these purposes is permissible and may result in an increase in the penalty or sentence ultimately imposed. Where the further offence is relatively minor in its seriousness, it may add little to nothing to the otherwise appropriate sentence. Where the criminality involved in the further offence is significant or substantial, subject to proportionality, its effect on the sentence imposed may be "substantial" (Attorney General's Application at [18]). However, that effect is not because the further offence increased the objective seriousness of the principal offence. Rather, it is because the appropriate sentence is determined by reference to numerous matters including the objective seriousness of the offence for which the sentence is to be imposed (considered without regard to any further offending on a Form 1 document) and a consideration of whether further offending on a Form 1 document should bear upon any of the purposes described in [129].
It follows that the assessment of objective seriousness and its relationship with the principle of proportionality will be compromised if conduct encompassed in a Form 1 offence is taken into account. That will be because the resulting assessment of objective seriousness would not be an assessment based on the objective gravity of the offence before the court for sentence. Rather, it would reflect the principal offence and the further offence (or offences) attached to the principal offence by way of a Form 1 document. That would be erroneous because it would result in an offender being punished for the conduct encompassed by an offence on a Form 1 document.
So, in light of the analysis of the authorities, did the sentencing judge err in his approach to the further offences that were before him?
In relation to the s 59(2) offence, I am not persuaded the sentencing judge did err in the manner contended. While at first blush one might tend to the view that his Honour impermissibly took it into account when assessing the objective gravity of the s 112(3) offence given the emphasised part of the sentencing judge's reasons reproduced at [78], consideration must be given to the fact his Honour delivered ex tempore reasons. It is well established that reasons given in this way should not be overly scrutinised with an eye attuned to error, nor "picked over" (MF v R [2024] NSWCCA 42 at [48]).
Looked at in context, the manner in which the sentencing judge should be understood to have used the s 59(2) offence was consistent with authority. Namely, by giving greater weight to personal deterrence and retribution (Attorney General's Application). That is apparent when regard is had to the sentencing judge's clear statements, immediately before and after the challenged part of his reasons, that the increase in sentence was a recognition of the need for weight to be afforded to personal deterrence and retribution. Additionally, earlier in his reasons, the sentencing judge, correctly observed that he was not sentencing the applicant for the s 59(2) offence on the Form 1. [22] Accordingly, I do not consider that the sentencing judge erred in his approach to the s 59(2) offence in the way contended for by the applicant.
The same cannot be said in relation to the sentencing judge's approach to the s 193B(2) offence (said to have been committed between 17 March 2020 and 4 June 2021) and the s 93T(1) offence (said to have been committed between 9 April 2020 and 28 May 2021), both of which were to be "taken into account" in relation to the supply of four ounces of cocaine on 4 January 2021 (that is, Sequence 8/H781). In his reasons the sentencing judge made clear that these Form 1 offences "did inform my assessment of the objective seriousness of each of the supply counts". [23] In the circumstances of these Form 1 offences, that approach was an error. These offences were not "inextricably linked" to the Sequence 8/ H718 offence in the manner described in Flick and they should not have been taken into account as part of the assessment of the objective seriousness (or gravity) of the Sequence 8/H718 supply offence for which the offender was to be sentenced.
The error was compounded by the sentencing judge finding that the Form 1 offences, which were to be taken into account only when sentencing the applicant for the Sequence 8/H718 supply offence, informed his assessment of the objective seriousness of each supply offence. Division 3 makes clear that an offence (or offences) on a Form 1 document can only be taken into account when dealing with an offender for the principal offence; that is, one principal offence. To do otherwise is contrary to the statutory scheme and risks double-counting, a point highlighted in Kapila.
Accordingly, notwithstanding the thoroughness of the sentencing judge's ex tempore reasons for sentence, his Honour erred in finding that the further offences of knowingly deal with the proceeds of crime and participate in a criminal group informed the assessment of the objective seriousness of each supply offence.
Since Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, if an applicant can establish that an error had the capacity to influence the sentence imposed in the first instance, the result is that this Court is required to intervene and re-sentence the applicant (Benn v R [2023] NSWCCA 24 at [82]).
The sentencing judge's error in relation to the two further offences on the second Form 1 document was not immaterial. The proceeds of the crime offence was a "rolled-up" offence encompassing transactions involving the proceeds of crime totalling $44,000. That is not an insignificant sum of money. Furthermore, the applicant's participation in the criminal group established by MD facilitated serious offending including drug distribution within territorial areas and violent debt collection. The error had the capacity to have influenced the aggregate sentence imposed (Newman (a pseudonym) v R [2019] NSWCCA 157 at [11] (Basten JA); Ibbotson (a pseudonym) v R [2020] NSWCCA 92 at [145] (N Adams J, Leeming JA agreeing)) because in determining the objective seriousness of the related principal offence, the sentencing judge impermissibly had regard to these serious Form 1 offences. It follows that the error enlivens this Court's obligation to re-sentence the applicant.

Ground 3: the applicant's juvenile criminal history

Ground 3 asserts that the sentencing judge erred in taking into account the applicant's juvenile criminal history. Most but not all of the applicant's previous offending was dealt with in the Children's Court. Sentencing options for the Children's Court are contained in s 33 of the Children (Criminal Proceedings) Act 1987 (NSW) ("CCPA"). Given the significance of the applicant's criminal history to Ground 3, his full criminal history should be set out.

Juvenile criminal history

On 8 October 2015, the applicant was sentenced in relation to assault, destroy/damage property, stalk/intimidate and contravene an ADVO. He was 15 years of age at the time of the offences and the sentence. He was placed on probation for 9 months under s 33(1)(e). On 21 January 2016, the applicant was called-up in relation to this group of offences. He was 15 years of age at the time of the call-up. He was placed on probation for 18 months under s 33(1)(e).
On 19 November 2015, the applicant was sentenced for entering enclosed lands. He was 15 years of age at the time of the offence and the sentence. A dismissal with a caution under s 33(1)(a) was ordered. On 19 November 2015, the applicant was also sentenced in relation to an offence of robbery. He was 15 years old at the time of the offence and the sentence. He was placed on probation for 12 months under s 33(1)(e). On 21 January 2016, the applicant was called-up in relation to the robbery offence. He was 15 years old at the time of the call-up. He was placed on a control order for 10 months with a non-parole period of 4 months under s 33(1)(g).
On 21 January 2016, the applicant was sentenced in relation to two offences of common assault, two offences of contravene ADVO and one offence of destroy/damage property. He was 15 years old at the time of the offences and the sentence. He was placed on a control order for 4 months under s 33(1)(g) and placed on probation for 18 months under s 33(1)(e).
On 21 January 2016, the applicant was also sentenced in relation to two offences of steal from the person and one offence of stalk/intimidate. He was 15 years old at the time of the offences and at the time of sentence. He was placed on a control order for a period of 7 months with a non-parole period of 4 months under s 33(1)(g) and placed on probation for 18 months under s 33(1)(e).
On 4 August 2016, the applicant was sentenced in relation to two offences of break and enter with intent to steal, one offence of larceny, two offences of take and drive conveyance, two offences of police pursuit and one offence of aggravated break and enter and commit serious indictable offence. He was 15 years old at the time of all offences except for the aggravated break and enter and commit serious indicatable offence which was committed when he was 16 years of age. The applicant was 16 years of age at the time he was sentenced for these offences. He was placed on an 18-month control order with a non-parole period of 9 months under s 33(1)(g).
On 29 January 2018, the applicant was sentenced in relation to drive with licence cancelled, drive unregistered vehicle and drive uninsured vehicle. He was 17 years old at the time of the offences and at the time of sentence. He received fines in relation to each offence. He was also sentenced on that date for larceny. He was 17 years old at the time of that offence and the sentence. He was given a Community Service Order for 50 hours under s 33(1)(f). On 23 April 2018, the applicant was called-up in relation to the larceny offence. He was 18 years old at the time of the call-up. He was placed on probation for 12 months under s 33(1)(e).
On 29 January 2018, the applicant was also sentenced for robbery in company. He was 17 years old at the time of the offence and the sentence. He was given a Community Service Order for 100 hours under s 33(1)(f). On 23 April 2018, he was called-up in relation to this offence. He was 18 years old at the time of the call-up. He was placed on probation for 12 months under s 33(1)(e).

Adult criminal history

On 5 November 2019, the applicant was sentenced in relation to conspiracy to commit an offence unspecified. He was aged 18 at the time of the offence and 19 at the time of the sentence. He was sentenced to imprisonment for 32 months with a non-parole period of 18 months.
On 6 December 2018, the applicant was sentenced in relation to possess/use prohibited weapon. He was 18 years old at the time of the offence and the sentence. He was placed on a 12-month community correction order.
On 11 December 2020, the applicant was sentenced in relation to entering enclosed lands. He was aged 20 at the time of the offence and 21 at the time of the sentence. He was convicted with no further penalty imposed pursuant to s 10A of the CSPA.
On 10 May 2021, the applicant was sentenced in relation to stalk/intimidate and one destroy/damage property. He was 21 years old at the time of the offences and the sentence. He received an intensive correction order for each offence, for 12 and 6 months respectively.
The error alleged in Ground 3 is said to arise as a result of the following passage in the sentencing judge's reasons for sentence at [44]-[49]: I have to take into account the offender's criminal record. Although most of that offending was dealt with in the Children's Court, it involved serious offending as a child, and that pattern has continued into his adult life. It is important to note the chronology. Tukuafu was released to parole on 19 August 2020, the criminal group offences occurred in October 2020 and continued until his arrest, as evidenced by the encrypted messages. Although that is a matter on the Form 1 and I do not sentence for it, the factual matrix is important. The home invasion occurred in October 2020, and the drug dealing from late 2020 to early 2021. In April 2021 he committed a domestic violence offence and received a custodial sentence. After a short period in custody, that sentence was directed to be served by way of an Intensive Correction Order (ICO). The ICO continued until August 2022. His parole was breached and his ICO was breached because of his failure to properly adapt to normal community life or to follow directions. He failed to engage with Community Corrections. His failure shows an inability to adapt to prosocial life or comply with basic requirements of Community Corrections or Court orders. He engaged in a pattern of aggressive behaviour while on parole. His record is important for three reasons. The first is that it disentitles him to the leniency often given to first offenders. Secondly, it is relevant to determining the proper sentence because it indicates this offending was not an uncharacteristic aberration and demonstrates his continuing disobedience to the law. While his criminal history cannot result in a sentence that is disproportionate to the seriousness of his offending, a more severe penalty is warranted, with additional focus on retribution and deterrence and protection of the community. Thirdly, his record […] is relevant to how I formulate the starting date for the sentence.

The applicant's submissions

The applicant contends that his juvenile criminal record was inadmissible in the sentence proceedings because of the operation of ss 14 and 15 of the CCPA. It is argued that Siddiqi v R (Commonwealth) [2015] NSWCCA 169 ("Siddiqi"); Dungay v R [2020] NSWCCA 209 ("Dungay"); and R v Price [2005] NSWCCA 285 ("Price") provide support for that submission.
It is further submitted that without the juvenile record, the applicant's adult criminal record was not such as to establish that the applicant had displayed a "pattern" of offending commencing when he was a child or that the index offending was not an uncharacteristic aberration or that the applicant's criminal record demonstrated a continuing attitude of disobedience to the law.
The applicant further contends that the language used by the sentencing judge indicates that his Honour impermissibly took the applicant's juvenile history into account as a matter of aggravation in the sense discussed in Veen v The Queen (No 2) (1988) 164 CLR 645; [1988] HCA 14 at [477]-[478] ("Veen (No 2)").

The respondent's submissions

The respondent contends the applicant's complete criminal history (that is, his juvenile and adult criminal history) was admissible pursuant to s 15 of the CCPA noting that s 15 was comprehensively considered by Simpson J (as her Honour then was) in Tapueluelu v R [2006] NSWCCA 13 at [22]-[31] ("Tapueluelu").
The respondent further contends that the sentencing judge did not take the applicant's criminal history into account as a matter of aggravation but rather considered the relevance of the history in a permissible way; namely, as disentitling the applicant to leniency, as establishing that the index offending was not an aberration, as demonstrating an attitude of continuing disobedience (with the consequence that increased weight was appropriate to address the sentencing purposes of retribution, deterrence and protection of the community) and as having relevance to the commencement date for the sentence to be imposed for the index offending and to considerations of concurrency and cumulation. The respondent submits that the sentencing judge appreciated that the applicant's criminal history could not be used to impose a penalty that was disproportionate to the seriousness of the index offending.

Consideration of Ground 3

Section 14(1) of the CCPA provides that a court shall not record a conviction against a child who was under the age of 16 years at the time of the commission of an offence. Section 14(2) provides that a court can choose to record a conviction against a child who is of or above the age of 16 years.
Section 15(1) of the CCPA limits the admission of evidence of prior offences committed by a child (as to guilt or as to the imposition of any penalty) in subsequent criminal proceedings. It provides that offences committed when a person was a child (whether the child pleaded guilty or was found guilty) for which a conviction was not recorded are not admissible in subsequent proceedings (including proceedings as an adult), if the person has not, within two years prior to the commencement of the subsequent proceedings, been subject to any judgment, sentence or order of a court whereby the person has been punished for any other offence. Section 15(2) states that this does not apply to any criminal proceedings in the Children's Court.
The practical effect of s 15(1) is that if a child pleads guilty or is found guilty in the Children's Court but no conviction is entered and at the time of a subsequent sentence was not subject to any other punishment ordered by a court for a period of two years, evidence of the prior offence (or offences) is not admissible. Expressed differently, as the authorities to which I will refer reveal, s 15 has two limbs both of which must be satisfied so as to engage the prohibition.
In Tapueluelu, Simpson J (Grove and Howie JJ agreeing) observed (at [28]) that s 15 is concerned with evidence of prior offences committed by children. Her Honour observed that s 15(1) has two preconditions to the prohibition on the admission of evidence of previous offences. First, that a conviction was not recorded. Second, that the person has not, within two years prior to the proceedings for the offence for which sentence is being passed, been subject to any judgment, sentence or order of the court whereby the person has been punished for any offence. Her Honour went on to state that if it is established that the two-year crime-free period has not existed, then evidence of any other offence, whenever committed, becomes admissible, or at least is not subject to the prohibition otherwise contained in s 15(1).
In Siddiqi, the applicant, who was 19 years of age, was sentenced for an offence of importing a marketable quantity of a border-controlled drug. Seven years prior to being charged for that offence he appeared before the Children's Court and was sentenced for two offences of armed robbery and one offence of entering enclosed lands. Convictions were not recorded (presumably in accordance with s 14(1) of the CCPA). The applicant had not committed any other previous offences. Section 15(1) of the CCPA was not drawn to the attention of the sentencing judge.
The Court upheld the appeal on the basis that in accordance with s 15 of the CCPA, in circumstances where no conviction was recorded for the offences before the Children's Court and the applicant had not, within two years prior to the proceedings for the importation offence, been subject to any judgment, sentence or order of the court, the Children's Court entries were not admissible in the sentence proceedings for the importation offence (at [63]).
In Dungay the applicant, who was 25 years of age, was sentenced for three serious offences (with four further offences on a Form 1 document). He was charged with those offences in May 2017. The applicant had appeared before the Children's Court and the Local Court and had been sentenced for offences committed between June 2007 and January 2013. All of his prior offending was outside the two-year period prescribed by s 15(1) of the CCPA.
N Adams J (with whom Bell P (as his Honour then was) and Davies J agreed) observed at [92] that the practical effect of s 15 was that if a child was found guilty in the Children's Court but not convicted and not subject to any other judicially imposed punishment for a period of two years, then the finding of guilt is inadmissible in any subsequent proceedings. Accordingly, her Honour held that the evidence of the applicant's other offending should not have been admitted (noting that a "similar error" was made in Siddiqi), however observed that evidence of prior offences may be admissible when tendered for another purpose, for example to establish an offender's disadvantaged background.
In Price it was held that where an offender is discharged without conviction pursuant to s 10(1)(b) of the CSPA, that is not a "conviction" for the purposes of s 21A(2)(d) of that Act. The applicant submits that this principle can be applied to ss 14 and 15 of the CCPA. I do not accept that submission. Price has no application in the present circumstances. Sections 14 and 15 of the CCPA deal with the recording of a conviction against a child and the admissibility of evidence of prior offences committed by a child in subsequent criminal proceedings and s 15 in particular states the criteria for admissibility.
The outline of the applicant's criminal history discloses that he pleaded guilty to or was found guilty of offences committed when he was a child for which a conviction was not recorded against him and that within the two years preceding the "other offences" (they being the four offences being dealt with by the sentencing judge), the applicant was subject to the judgment, sentence or order of a court whereby he was punished for other offences. Accordingly, the two preconditions on the admission of the evidence of the previous offences were met such that evidence of all other offences, whenever committed, was not subject to the prohibition contained in s 15(1) and was admissible.
The applicant's criminal history being admissible, his Honour found at [49] that it was "important" for three reasons. Namely, 1. It disentitled the applicant to leniency. 2. It indicated that the index offending was not an uncharacteristic aberration and demonstrated the applicant's continuing disobedience to the law, such that a more severe penalty was warranted with additional focus on retribution, deterrence and protection of the community. 3. It was relevant to determining the start date for the (aggregate) sentence to be imposed (which his Honour ultimately determined would commence on 2 March 2022, that being six months after the applicant's arrest and charging).
The relevance of an offender's prior criminal history was described by Mason CJ, Brennan, Dawson and Toohey JJ in Veen (No 2) at [477]-[478] as follows: The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence... The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. (Emphasis added)
The totality principle required the sentencing judge to have regard to the sentences the applicant was serving at the time of his sentence when determining the commencement date for the sentence to be imposed by him. It would be contrary to the principle of totality to fail to do so.
It was clearly open to the sentencing judge to find that the applicant's criminal history disentitled him to the leniency available to a first-time offender. The applicant was not a first-time offender. The sentencing judge did not increase the sentence imposed because of the applicant's criminal history however he was entitled to find that it denied the applicant leniency.
Similarly, the sentencing judge's finding that the applicant's criminal history demonstrated that the index offending was not an uncharacteristic aberration and demonstrated his continuing disobedience to the law was a finding clearly open to his Honour. Although the sentencing judge found that the applicant's criminal history was such that "a more severe penalty is warranted with additional focus on retribution, deterrence and protection of the community", his Honour noted it could not result in a sentence disproportionate to the seriousness of the offending.
His Honour's treatment of the applicant's criminal history was principled and entirely proper. I would reject Ground 3.

Resentencing and whether any lesser sentence is warranted in law

As error in the sentencing process has been established, this Court must discharge the obligation imposed by s 6(3) of the Criminal Appeal Act 1912 (NSW), namely determine whether a sentence more or less severe is warranted in law and should have been passed. This involves an independent exercise of the sentencing discretion.
An affidavit from the applicant was read on the "usual basis" (Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25 at [2]). The applicant states he is working seven days a week as a sweeper, that he has done his best to stay out of trouble and has not had any internal charges for "about 10 months", that he is trying to improve his ability to think before reacting, that he remains in a relationship with his girlfriend who visits him approximately once a fortnight and he intends to live with her on his eventual release and that there are no programmes for him to do in terms of education in custody but he nevertheless goes to the education section in the jail on occasions to read books to improve his skills. The applicant also states that he has been consulting with solicitors in relation to obtaining compensation for assaults upon him in juvenile justice which he hopes may give him some closure.
In resentencing the applicant, it is accepted that programmes in custody are extremely limited (particularly for persons who are on remand). I also accept that the applicant is doing what he can to be productive in custody and stay out of trouble.
In resentencing the applicant, I have had regard to his subjective case, aspects of which I have summarised at [54]-[56].
Save for the findings of the sentencing judge that formed the basis of the asserted errors in the grounds of appeal, the applicant does not challenge the findings of the sentencing judge. Accordingly, I adopt the findings of the sentencing judge regarding the appropriate discount for the pleas of guilty and the reduction of the applicant's moral culpability, the findings in relation to remorse and the applicant's prospects for the future recognising his youth and capacity to reshape his thinking and behaviour as he matures. I too would find special circumstances pursuant to s 44 of the CSPA. Both general and specific deterrence are very important sentencing considerations as is retribution and the need to denounce the applicant's conduct and recognise the harm his offending has caused.
In so far as the objective seriousness of each offence is concerned, in the circumstances of these offences, that assessment is to be made without regard to any further offence on a Form 1 document. I consider that each offence is at least as objectively serious as that found by the sentencing judge. The s 112(3) offence was objectively a very serious offence for the reasons identified by the sentencing judge. It was violent and the male victim was repeatedly assaulted by various objects including being intentionally wounded with a knife. It is properly characterised as falling towards the upper end of the notional "middle of the range". The s 25(1) offences were also serious offences. They involved the distribution of a not insignificant quantity of cocaine. The applicant's role included bagging and cutting the drug and coordinating acts of supply with his runners.
Taking into account all matters relevant to the aggregate sentence to be imposed, I have made a value judgment as to the appropriate sentence (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]). The sentence I have arrived at is slightly longer than that imposed on the applicant by the sentencing judge. Despite the fact that the language of s 6 of the Criminal Appeal Act permits this Court to impose a sentence that is "more or less severe" than that imposed at first instance, it is not the practice of this Court to impose a more severe sentence (RO at [119]).

Conclusion

Accordingly, I propose that leave to appeal is granted, and the appeal is dismissed.

Endnotes

R v Tukuafu [2022] NSWDC 671 at [17].
Ibid at [31].
Ibid at [29].
Ibid at [36].
Ibid at [60].
Ibid at [66].
Ibid at [63]
Ibid at [67].
Ibid at [76]-[77].
Ibid at [70].
Ibid at [80].
Ibid at [29].
Tcpt, 22 November 2022, p 8(38).
R v Tukuafu [2022] NSWDC 671 at [7].
Ibid at [12].
Ibid at [17].
Statement of Agreed Facts signed 9 August 2022, p 3.
Ibid, p 4.
Ibid, p 5.
R v Tukuafu [2022] NSWDC 671 at [37]-[38].
Ibid at [37].
Ibid at [28].
Ibid at [38] (emphasis added). 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: 07 June 2024

Jurisdiction: Criminal Citation: [2022] NSWDC 671 Date of Decision: 22 November 2022 Before: Haesler SC DCJ File Number(s): 2021/00251527 2021/00224165

HEADNOTE [This headnote is not to be read as part of the judgment] Mr Siaosi Tukuafu (the applicant) pleaded guilty to four offences. One offence related to a violent home invasion. The remaining three offences related to his involvement in the supply of prohibited drugs. Four further offences were before the sentencing court on two Form 1 documents. The applicant was sentenced to an aggregate term of imprisonment for 8 years with a non-parole period of 5 years. The applicant relied on three grounds of appeal. The first two grounds related to findings of objective seriousness including the role the additional offence/s on the Form 1 documents had when assessing objective seriousness. Ground three related to alleged errors of the sentencing judge in relation to the applicant's juvenile criminal history. The issues arising on the application were: (1) Whether the sentencing judge erred in assessing the objective seriousness of the s 112(3) offence by finding that the male victim suffered life threatening injuries as a result of being stabbed? (2) Whether the sentencing judge erred in assessing the objective seriousness of the offences for which the applicant stood to be sentenced by reference to the further offences on two Form 1 documents? (3) Whether the sentencing judge erred in his approach to the applicant's juvenile criminal history? The Court held (Huggett J, Ward P and Chen J agreeing), granting leave to appeal but dismissing the appeal: (1) The sentencing judge did not err in assessing the objective seriousness of the s 112(3) offence by finding that the male victim suffered life threatening injuries as a result of being stabbed. The evidence before the sentencing judge established beyond reasonable doubt that the male victim suffered life threatening injuries. The finding that the male victim suffered life threatening injuries as a result of being stabbed was relevant to the objective seriousness of the s 112(3) offence but was not used by the sentencing judge to establish the circumstance of aggravation prescribed by s 21A(2)(ib) of the Crimes (Sentencing Procedure) Act 1999 (NSW)): [1] (Ward P); [2] (Chen J); [71], [74]-[75] (Huggett J). (2) The sentencing judge did not err in his approach to the Form 1 offence attached to the s 112(3) offence ([133]-[134]). However, the sentencing judge erred in his approach to the Form 1 offences attached to the Sequence 8/H718 offence by finding that they did inform his assessment of the objective seriousness of each of the supply counts ([135]-[137]). In so far as it was argued that Flick v R [2023] NSWCCA 197 ("Flick") was wrong and should not be followed, the facts and circumstances of each further offence on the Form 1 documents were not "inextricably linked" to the related principal offence as was found to be the case in Flick. Accordingly, it is not necessary to determine whether Flick should be followed or not: [1] (Ward P); [2] (Chen J); [126] (Huggett J). (3) The sentencing judge did not err in his approach to the applicant's juvenile criminal history. Section 15 of the Children (Criminal Proceedings) Act 1987 (NSW) has two pre-conditions for the admission of evidence of previous offences and both pre-conditions were met: [1] (Ward P); [2] (Chen J); [167] (Huggett J).

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