TF v R

1. [1]

   BASTEN JA: The applicant, TF, is now 20 years of age. He entered pleas of guilty two years ago in relation to offences committed in January 2018, shortly before his eighteenth birthday. There is a statutory prohibition on publication of material which would identify him. [1]

2. [2]

   In August 2019 the applicant was sentenced by Judge Colefax SC in the Campbelltown District Court to an aggregate sentence for a number of offences, including five offences of robbery, and an aggravated taking of a motor vehicle with a person in it. He was sentenced to 10 years imprisonment to date from 16 February 2018, with a non-parole period of 5 years.

3. [3]

   An application for leave to appeal against sentence, filed on 19 May 2020 identified three grounds, namely “rejecting, overlooking or ignoring aspects of disadvantage in the applicant’s childhood” (ground 1), “not applying principles associated with the applicant’s low cognitive functioning” (ground 2) and imposing a sentence which was manifestly excessive “for a young offender with low cognitive ability” (ground 3).

4. [4]

   The primary judge sentenced four offenders, each of whom had been involved in the course of offending for which the applicant was sentenced. Not all offenders were involved in every offence. In the result, the sentencing judgment was longer than it would have been had the judge dealt with fewer offenders; nevertheless, the approach taken was entirely appropriate, if not inevitable.

5. [5]

   The judge made findings that three of the armed robberies in which the applicant was involved were “mid-range” offences. Understandably given the facts which have been set out by Rothman J, those assessments of objective seriousness were not challenged. The focus of the appeal was on the subjective circumstances of the applicant. However, that focus should not be allowed to distract attention from the serious nature of the offending, and the terrifying effects on the victims. For example, one offence involved the applicant and J calling an Uber. The applicant sat in the front passenger seat, J behind the driver. The applicant, wearing gloves and armed with a knife, demanded that the driver give him the keys of the vehicle, whilst J, from behind, put the blade of a knife to the driver’s neck. The driver struggled with J and got a cut to his right hand. The applicant then threatened to stab the driver and indeed made a stabbing motion towards his chest so that the driver felt the tip of a knife hit his chest. The applicant then grabbed the driver’s mobile phone and wallet. They told him to get out of the car and lie on the road. The applicant then got into the driver’s seat and drove off. As the primary judge noted, the driver was terrified. The sentencing judge described the offence of armed robbery with an offensive weapon as “slightly below a mid-range offence” in terms of objective seriousness. [2] That assessment can only be described as generous to the offenders.

Ground 1 – disadvantageous childhood

1. [6]

   Ground 1 was framed in terms which indicated uncertainty as to whether the judge had overlooked, ignored or positively rejected “aspects of disadvantage” in the applicant’s childhood. In substance the ground assumed that there was material which should have been taken into account but was not. The inference that it was not taken into account was drawn from the absence of reference to it in the sentencing judgment.

2. [7]

   The first step is to identify the aspects of disadvantage which were relied upon. Importantly, they did not involve what was described as “the applicant’s low cognitive functioning”. Ground 2 dealt with that characteristic, on the basis that it was taken into account, but that it was not properly addressed. The judge expressly stated that the applicant had “low-cognitive functioning.” [3] In submissions on sentencing, the applicant’s counsel referred to his “background of deprivation”, that his childhood had been marred by “exposure to violence from an early age”, and the fact that when residing with his father he was exposed to drug use and violence. His counsel said that he “fell off the rails” at a very early age on the death of his two grandmothers. [4]

3. [8]

   The material relied upon to support these submissions was to be found in a report prepared by a forensic psychologist, Ms Sarah Brann, dated 5 November 2018. The description of background history, which indicated that, during weekend contact with his father, the applicant had been exposed to “junkies, fighting, daily screaming and glass smashing”, was entirely based on his account to the psychologist. [5] He did not give evidence on sentence. A report from Juvenile Justice, which included reports of interviews with both his mother and father, provided no direct support for his account, although it did identify his secondary education as “marked by repeated suspensions for disruptive and oppositional behaviour”. The cause of his oppositional behaviour was not identified.

4. [9]

   It is clear that the sentencing judge was familiar with the Juvenile Justice report: he referred to it expressly noting that the applicant had failed to engage with psychological appointments and continued to engage in misconduct whilst in custody. He noted that the applicant was “currently assessed at the highest risk classification in New South Wales Juvenile Justice because of [his] behaviour.” [6] He distinguished the applicant from two other co-offenders who had serious mental health issues (apart from drug issues). [7] He referred to the applicant as being the exception to the statement that for each it would be his first time in custody. [8] He identified the Juvenile Justice report as noting the applicant’s lack of remorse. He accepted that assessment. [9]

5. [10]

   The report by the forensic psychologist did not take the matter much further. She concluded that the applicant “did not meet criteria for any mental health disorders currently [nor] at the time of committing the offences”. [10] She concluded that “[t]he potential for intellectual disability cannot yet be ruled out”. [11] She noted the uncontested fact that the applicant had been abusing substances and alcohol and that his “abuse of substances appeared to arise in the context of his social environment as a teenager who was attempting to impress older peers, as well as cope with emotional issues stemming from his home environment.”

6. [11]

   There was letter from a family friend, and a reference from his mother. The latter expressed a possible concern that he had been sexually abused at school, but, as the applicant had denied any abuse to her, the matter could not be taken further. Accordingly, apart from his own statement, there was little to demonstrate relevant aspects of disadvantage of a significant nature. The sentencing judge said of all the offenders that they had “engaged at an early time in life with illegal drugs and alcohol – and in significant quantities. … Your drug use has retarded your education and impeded your work history.” [12] The judge then expressly identified the efforts that three (not including the applicant) had made to address drug issues and demonstrate insight into their problems. The applicant was expressly excluded from this group, as someone who lacked insight. [13]

7. [12]

   Although the applicant’s counsel at the sentencing hearing referred to the principle identified by the High Court in Bugmy v The Queen, [14] there was little if any evidence, other than the unconfirmed reporting to the forensic psychologist, that he had suffered relevant disadvantage in his early life. Such disadvantage as had been suffered as a result of weekend stays with his father, who had mental health issues, did not rise to the level of disadvantage which may render specific or general deterrence of limited significance. There was no reason for the sentencing judge to say more than he did about the applicant’s childhood and upbringing.

8. [13]

   The careful manner in which the sentencing judge distinguished observations made in relation to particular offenders demonstrates that he did not consider that the applicant satisfied the criteria for identifying a disadvantaged childhood. Indeed, he expressly stated of three of the co-offenders that they had “what is correctly described as a dysfunctional upbringing and, with it, a reduction in moral culpability for your offending.” [15] The omission of the applicant from this finding was undoubtedly deliberate. The judge did not ignore or overlook the limited evidence of disadvantageous upbringing; rather he rejected it as inadequate to engage the relevant principles of mitigation. He was entitled to take that approach.

Ground 2

1. [14]

   It was not in doubt that the trial judge took into account what had been described as low-cognitive ability. The forensic psychologist appeared to distinguish that assessment from intellectual disability. The basis of ground 2 is that this consideration, together with his general immaturity for his age, indicated that a sentence of imprisonment would weigh more heavily on him than on others, a factor that was not reflected in the judgment or the sentence.

2. [15]

   There is no doubt that the sentencing judge was alert to this factor. He made a finding of special circumstances, pursuant to s 19 of the Children (Criminal Proceedings) Act 1987 (NSW), so that he could direct that the applicant’s sentence be served as a juvenile offender, expressly stating that in the applicant’s case, that was to continue “until he turns 21 years old”, on the basis that there would otherwise be at an unacceptable risk of physical or psychological harm. [16] This finding was an appropriate recognition of the issue raised on behalf of the applicant; it was an appropriate response and no more was required of the sentencing judge in the circumstances of the case.

Ground 3 – manifest excess

1. [16]

   There is no doubt that the non-parole period fixed by the sentencing judge (5 years) was comfortably within a range of appropriate minimum terms, given the nature of the offending. Of greater concern is the head sentence of 10 years imprisonment. This disparity was permitted by a finding of special circumstances which relieved the sentencing judge of the obligation to impose an additional term on the non-parole period, not exceeding one-third of the non-parole period. Absent that finding, the appropriate ratio would have resulted in an overall sentence of 6 years 8 months.

2. [17]

   The sentencing judge considered that this offender’s prospects of effective rehabilitation were “very guarded indeed.” [17] In such a case, the imposition of a lengthy additional term may lead to a significant element of longer incarceration. It cannot be assumed that an offender with poor prospects of rehabilitation will be released at the expiry of his or her non-parole period. Further, failure to comply with the requirements of conditional liberty in the past may suggest a similar failure in the future, with the potential for a further lengthy period of incarceration.

3. [18]

   While the non-parole period in this case was an appropriate reflection of the culpability of the offender, a period of 10 years imprisonment was, in my view, excessive. I would reduce the overall sentence to 7 years 6 months by imposing an additional term of 2 years 6 months on the non-parole period of 5 years. As the additional term is 50% of the non-parole period, the finding of special circumstances should be retained.

4. [19]

   ROTHMAN J: The applicant, TF, seeks leave to appeal against the sentence imposed upon him by his Honour Judge Colefax SC on 23 August 2019 in the District Court at Campbelltown. Because the applicant was under 18 years of age at the time of the offence, the law requires that his identity and any material that would identify him be suppressed.

5. [20]

   The applicant was sentenced to an aggregate sentence of 10 years’ imprisonment with a non-parole period of 5 years’ imprisonment, commencing 16 February 2018. The sentence imposed reflects a 25% discount for the utilitarian value of a plea of guilty at the earliest opportunity. The aggregate sentence related to six offences, the first of which was imposed in circumstances where a further offence of break into a dwelling house or building to commit a serious indictable offence was notified on a Form 1. The offences to which the applicant pleaded guilty are:

   1. (1)

      Sequence 2: Robbery armed with an offensive weapon causing wounding, contrary to s 98 of the Crimes Act 1900 (NSW), the maximum penalty for which is 25 years’ imprisonment and for which there is a standard non-parole period of 7 years in prison and;

   2. (2)

      Sequence 3: Robbery in company whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act, for which the maximum sentence is 25 years’ imprisonment;

   3. (3)

      Sequence 4: Robbery in company whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act;

   4. (4)

      Sequence 9: Robbery in company whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act;

   5. (5)

      Sequence 10: Robbery armed with an offensive weapon, contrary to s 97(1) of the Crimes Act, for which the maximum penalty is 20 years’ imprisonment; and

   6. (6)

      Sequence 11: Aggravated take motor vehicle with person in it, in company, contrary to s 154C(2) of the Crimes Act, for which the maximum penalty is 14 years’ imprisonment and for which there is prescribed a standard non-parole period of 5 years’ imprisonment.

   7. (7)

      As already stated a further offence of break and enter a dwelling house or building to commit a serious indictable offence, contrary to s 112(1)(a) of the Crimes Act, which originally was Sequence 1, was placed on a Form 1 and taken into account in relation to the sentence to be imposed for Sequence 2. The maximum penalty prescribed for the Form 1 offence is 14 years imprisonment.

Background Facts

1. [21]

   The applicant was born on 30 March 2000 and was just under the age of 18 at the time of the offences. All matters were dealt with according to law, rather than in the Children’s Court, due to the nature and seriousness of the offences.

2. [22]

   The applicant committed the majority of the offences with other co-offenders who were sentenced on the same day. In relation to Sequences 2, 3 and 4, the applicant committed these offences in the month of January 2018 with co-offenders AT and KJ, who were also young offenders at the time.

3. [23]

   In relation to Sequences 9 and 10, the applicant committed those offences in the month of February 2018, again in the company of KJ. The applicant acted alone in committing the offences referred to in the Form 1 offence (Sequence 1) and the offence which is charged in Sequence 11. Sequence 11 was a separate principal offence relating to the conduct in Sequence 10 and occurred in circumstances where the applicant took and drove a motor vehicle from an Uber driver, whom he had previously robbed. The previous robbery had been, as stated, in the company of KJ.

4. [24]

   As earlier stated, the sentencing judge imposed an aggregate sentence of 10 years’ imprisonment with a non-parole period of 5 years’ imprisonment. The sentence commenced on 16 February 2018 and reflects a 25% discount for the utilitarian value of a plea of guilty at the earliest opportunity. The indicative sentences for the offences were in accordance with the following table:

Grounds of Appeal

1. [25]

   The applicant raises three grounds of appeal on which he relies for both leave to appeal and the appeal, if leave be granted. Those grounds are:

Relevant Facts

1. [26]

   Further to the foregoing brief recitation or summary, it is necessary to set out more fully the factual basis for the sentencing. The applicant and the Crown agreed on facts to submit to the Court, which were tendered and marked Exhibit A (hereinafter, the “Agreed Facts”).

2. [27]

   In brief, the applicant was one of four persons sentenced in connection with a spate of armed robberies conducted at petrol stations in the Sydney metropolitan area (Sequences 2, 3, 4 and 9). A fourth co-offender, EW, committed a service station robbery in the company of KJ. The offences committed by each of the offenders were primarily motivated by financial gain to finance their drug habits and, in the case of the applicant, also “for his own thrill-seeking benefit”.

3. [28]

   By way of example, the Sequence 2 offence involved the applicant, AT and KJ entering the Speedway Service Station in Kings Langley, wearing face coverings and gloves. They were also armed with weapons, including a shortened firearm; a large sword; and an unknown weapon. One offender pointed the firearm at the service station attendant (the victim) next to the glass sliding door, whilst the other two entered the station and took cigarettes from a cabinet.

4. [29]

   One offender screamed to the victim to locate and remove money from the safe. The victim opened the till causing a computer to fall. The victim attempted to save the computer and, in the process, was struck with a large sword by one of the offenders, causing the victim to scream: “you cut my thumb”.

5. [30]

   The offenders removed $1,162.40 from the till and took away a cigarette tray containing packets of cigarettes. The victim suffered a deep laceration to the right thumb, which required plastic surgery, as well as a superficial laceration to the right forearm. This was, according to the sentencing judge, a mid-range offence. The event was held to be aggravated because it was committed in company; the applicant was on conditional liberty; and the victim was vulnerable.

6. [31]

   The offences were summarised by the Crown in the Written Submissions to this Court, which summary accurately reflects the Agreed Facts. I recite the table of offences and findings at [8] of the Crown’s Written Submissions, excluding the summary in respect of Sequence 2, which has already been dealt with.

Applicant’s Case on Sentence

1. [32]

   The applicant tendered before the sentencing judge a bundle of documents [18] containing: a Psychological Report of Ms Sarah Brann, dated 5 November 2018; a letter from the applicant; a letter from the applicant’s godmother, dated 21 October 2018; and an Affidavit from the applicant’s mother, dated 19 March 2019.

2. [33]

   The psychological report dealt with the applicant’s childhood and upbringing, psychological disorders and other issues.

3. [34]

   Relevantly, the applicant’s parents separated from a violent relationship when the applicant was very young. The care arrangements saw the applicant spend time with his father on the weekend. This time with his father occurred in the father’s premises, which was a public housing property, and saw the applicant exposed to a dysfunctional social environment.

4. [35]

   The applicant’s father had been in the armed services and experienced Post-Traumatic Stress Disorder and other mental health issues. The applicant’s father also espoused negative and anti-social attitudes towards police, based on a perceived injustice when they intervened during a domestic violence incident.

5. [36]

   The applicant acknowledged a deterioration in his behaviour, associated with the death of both his grandmothers when he was 11. He noted that his mother was ineffective in her discipline and although his father was aggressive to the point of being physical, the applicant was also unresponsive to his attempts at discipline.

6. [37]

   The applicant described past diagnoses of mental health conditions such as ADHD and depression, as well as being medicated. The report did not identify any mental health disorders at the time of the offending or at the time of the assessment.

7. [38]

   The applicant described abusing substances since he was 14 years of age and linked his offending to drug taking. He asserted that he had no ongoing issues in this regard and, although he said he would be prepared to participate in rehabilitation programs, the applicant would not consent to a residential centre.

8. [39]

   The applicant’s account of the offending demonstrated limited insight or empathy for the victims. He did, however, identify harm caused to one of the victims and observed that the offending was “stupid”.

9. [40]

   Cognitive testing placed the applicant in the extremely low range of cognitive ability and indicated a mild intellectual disability. Although further testing was recommended for a formal diagnosis, Ms Brann noted that these results may be reflective of the applicant’s disrupted education and the impact of drug use on neurocognitive development. Ms Brann observed that his functioning is:

10. [41]

    The Psychological Report specifically identified heightened risk factors for the applicant, if exposed to an adult prison. [20]

Remarks on Sentence

1. [42]

   As earlier indicated, the applicant was sentenced with three co-offenders. Each offender was involved in slightly different groups of offences and none of them was involved in all of the same offences as the applicant. As a consequence, the sentencing judge was required to address a deal of material that did not relate to this applicant.

2. [43]

   There is no issue that his Honour accurately summarised the charges for sentence. [21] His Honour remarked that the applicant was to be dealt with according to law, given the seriousness of the offences, but also noted that the sentencing principles in s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) remained relevant.

3. [44]

   In that respect, general deterrence, according to the sentencing judge, is to be regarded as having less importance than rehabilitation and, for those offenders with mental health issues, general deterrence is also of reduced significance. Nevertheless, his Honour further remarked that general deterrence does still have a role to play.

4. [45]

   The learned sentencing judge noted that specific deterrence and a need to protect the community are considerations which are fully engaged along with rehabilitation.

5. [46]

   His Honour then set out the maximum penalty for each charge proffered against the applicant and, in relation to the armed robbery and robbery in company offences, referred to the guideline judgement in R v Henry. [22]

6. [47]

   The sentencing judge assessed the objective seriousness of the robbery in company [23] committed on 2 January 2018 as mid-range and being additionally aggravated for the applicant and his co-offender on that count because it was committed in company; the applicant was on conditional liberty; and the victim was vulnerable. [24]

7. [48]

   After summarising the facts that gave rise to the charge preferred in Sequence 3, again, robbery in company, committed on 3 January 2018, the sentencing judge assessed this offence also, in terms of its objective seriousness, as in the mid-range and also aggravated because of the use of actual violence; that the applicant was on conditional liberty; and, again, the victim was vulnerable. [25]

8. [49]

   His Honour summarised the offence that was notified on the Form 1 and acknowledged that it would result in a meaningful increase in the sentence imposed for the principal offence.

9. [50]

   Relevantly, the sentencing judge summarised the facts giving rise to Sequence 4, robbery in company, whilst armed with an offensive weapon, that was committed on 8 January 2018 [26] and assessed the objective seriousness of the offence as mid-range. The sentencing judge also noted that it was additionally aggravated, in relation to the applicant, because of the use of actual violence; that he was on conditional liberty; and the victim was vulnerable. [27]

10. [51]

    The sentencing judge summarised the armed robbery and aggravated take motor vehicle offences, [28] and came to the conclusion, in relation to the armed robbery, that it was slightly below a mid-range offence; [29] additionally aggravated because it was committed in company; on conditional liberty; and the victim was vulnerable. [30] In relation to the aggravated motor vehicle offence, the sentencing judge determined that it was below mid-range in objective seriousness [31] and additionally aggravated because it was committed in company; on conditional liberty; and the victim was vulnerable. [32]

11. [52]

    Lastly, the sentencing judge dealt with the robbery in company with a dangerous weapon, [33] and came to the conclusion that it was slightly below mid-range offence in objective seriousness [34] and was additionally aggravated because: it was partly committed in the home of the victim; it was committed on conditional liberty; and the victim was vulnerable. [35]

12. [53]

    As to subjective circumstances, the sentencing judge noted: the age of the applicant as under 18 years of age and at 17 at the time of offending; [36] the applicant’s limited education; [37] the applicant’s abuse of substances from an early age and that the offending was motivated to support that behaviour; [38] lack of engagement in rehabilitation opportunities and a lack of insight; [39] and the applicant’s significant criminal history. [40]

13. [54]

    The sentencing judge concluded that the applicant had serious mental health issues and low-cognitive functioning. [41] His Honour declined to make a finding of genuine remorse and determined that the applicant’s prospects of rehabilitation were guarded.

14. [55]

    As earlier stated, his Honour imposed a sentence that reflected a 25% discount for the utilitarian value of a plea of guilty at the earliest opportunity; came to the conclusion that imprisonment was the only sentencing option available; but found special circumstances based upon the applicant’s age and the desirability to promote rehabilitation during an extended period of parole. His Honour issued orders under s 19 of the Children (Criminal Proceedings) Act that the sentence was to be served as a juvenile offender until the age of 21 on the basis of the unacceptable risk that the offender would suffer physical or psychological harm.

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

1. [56]

   The applicant submits that the sentencing judge erred in rejecting, overlooking or ignoring the applicant’s disadvantaged childhood. The applicant refers to the remarks on sentence and draws attention to the fact that there is no reference to the applicant’s developmental background.

2. [57]

   The applicant submits that to ignore or to overlook that feature of the applicant’s subjective case would unequivocally represent a failure to take into account a relevant consideration. In so submitting, the applicant relies on authority as to matters that are not addressed in remarks. [42]

3. [58]

   The applicant submits that the Court should assume that his Honour has not considered the deprived background, in circumstances where the sentencing judge has not referred to that issue, even though the sentencing judge referred to the issue in relation to other co-offenders. The applicant submits that the developmental disadvantage suffered by the applicant ameliorates the assessment of moral culpability.

4. [59]

   Moreover, the issue was one that was central to the subjective circumstances of the applicant, as submitted to the sentencing judge, and, as a consequence, attention to the issue should be expected.

5. [60]

   The Crown submits that the judge, while not specifically mentioning the applicant’s background, reports or character references, should not be taken not to have read or considered the issues.

6. [61]

   The Crown also submits that the applicant’s upbringing was different from that of the co-offenders and was not substantially dysfunctional, because the applicant had lived mainly with his mother in a “middle-class” setting.

7. [62]

   The applicant described his mother as a person who both cared for and supported him. He was also looked after by both grandmothers (although each of them died when he was about 11 years of age, which is omitted from the submissions of the Crown). The Crown submits that all three women were caring role models and, in the case of the mother, a resourceful one who turned to her own community networks to find meaningful employment for her son. The separation of his parents does not justify a description of the applicant’s upbringing as dysfunctional, according to the Crown.

8. [63]

   The Crown points to the reference by the sentencing judge to the applicant having low cognitive functioning, which discloses that his Honour had read the material. It also refers to the finding of special circumstances to assist the applicant in his rehabilitation and the orders for the serving of his sentence at a juvenile detention facility, for the purpose of having more suitable educational and other programs available. Fundamentally, the Crown submits that the failure of the sentencing judge to deal with the issue of disadvantage or dysfunction is a feature more of its relative weight, compared to the objective factors, than as a feature of ignorance or oversight.

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

1. [64]

   The applicant submits that his Honour did not correctly apply principle in sentencing the applicant, who has low cognitive functioning. His Honour did refer to the applicant’s cognitive functioning, but, according to the applicant’s submission, only briefly and in conjunction with another co-offender, where his Honour said:

2. [65]

   At no stage did his Honour specifically address the relationship between the applicant’s low cognitive functioning and the offending, according to the submissions of the applicant. The only potential indication of his Honour’s approach, according to the submissions, in this regard, arises from a generic comment listed at the outset of his remarks, which was:

3. [66]

   The applicant submits that the reference to the applicant’s cognitive functioning and the above generic comment on the manner in which mental health issues are to be considered, do not adequately deal with the potential relevance of such a condition on sentence.

4. [67]

   Moreover, the general statement on the relevance of mental health issues, assuming, for present purposes, that low cognitive functioning is a mental health issue, is not comprehensive and does not make reference to the potential impact such conditions may have on moral culpability nor how such circumstances may affect the experience of custody. [45]

5. [68]

   Given his age, the applicant submits that the long-term protection of the community would be best served through the applicant’s rehabilitation. The psychological evidence indicated that the combination of the applicant’s youth and low cognitive functioning meant the applicant serving time in an adult prison was likely to impede his rehabilitation and development at a crucial stage of his life. This aspect was not dealt with in his Honour’s remarks.

6. [69]

   In relation to Ground 2, the Crown submitted that the sentencing judge did find and refer to the applicant’s low cognitive functioning. [46] Therefore, on the Crown submission, by inference, even though unstated, the sentencing judge was referring to and was considering Ms Brann’s psychological report, as this is the only document that refers to the issue of low cognitive function. That finding, on the submission of the Crown, was based on poor results on partially completed testing (due to the testing being performed by video link); stopped short of a finding that the applicant had an intellectual disability; and the psychologist noted that an intellectual disability would be somewhat inconsistent with the applicant’s verbal skills during the interview.

7. [70]

   Such a conclusion would, on the Crown submission, also be at odds with the applicant’s educational achievements whilst in custody. Further, there is the unexplored aspect relating to his drug use and its effect on his cognitive functioning, along with the fact that he had missed a great deal of schooling.

8. [71]

   On the Crown’s submission, there was insufficient evidence to establish, on the balance of probabilities, any causal connection between low cognitive function and the offending. Had there been, the Court would also have been required to consider whether this diminished the applicant’s prospects of rehabilitation and/or placed him at a higher level of risk of reoffending.

Ground 3: Manifest excess

1. [72]

   The applicant relies upon certain features of the reasoning of the sentencing judge to suggest that the sentencing remarks indicate that the sentencing discretion miscarried. The applicant submits that, although his Honour’s remarks on sentence are lengthy, if the remarks that relate solely to the applicant are extracted, [47] it can be seen that they are very brief. The applicant submits that such brevity holds the potential to obscure other misapplications of relevant principle that may have contributed to a manifestly excessive sentence.

2. [73]

   The applicant points to the very brief reference to the guideline judgment in R v Henry [48] as a most pertinent concern in this regard. The applicant then relies on Yildiz [49] and the importance of relative youth even within the guideline, such that youth, can continue to be an important factor in sentencing, despite the fact that the guideline specifically applies to a youthful offender.

3. [74]

   Ultimately, the applicant submits that the decade-long head sentence might be described as “crushing” for an offender of the applicant’s age in that it represents half of his life so far. [50]

4. [75]

   The Crown emphasises that the applicant was part of a joint criminal enterprise involving two other co-offenders who committed a spate of violent armed robberies in a compressed time period during January and February 2018. The applicant acted alone in committing a further motor vehicle theft at home premises. [51]

5. [76]

   All offences were committed in circumstances of aggravation: the use of violence; being in company; breaches of conditional liberty; and the vulnerability of the victims, including one who experienced serious harm.

6. [77]

   The Crown also relies upon the criminal history of the applicant, which the Crown described as “significant”, and which includes juvenile offending of violence, weapons and property offences, any one of which would disentitle him to leniency. [52]

7. [78]

   His Honour also noted, on the Crown submission, the assessment of the applicant as being in the highest risk classification in juvenile detention due to his poor behaviour in custody. [53] The Crown submits that the offences involve the use of disguises and weapons. Each of the offences was motivated by greed with a purpose of stealing money or saleable items, such as cigarettes, to fund drug habits. The applicant was under the influence of intoxicating substances at the time and was found to be remorseless in the commission of his offending.

Consideration

1. [79]

   The sentencing judge was faced with a very difficult sentencing task involving a significant number of offenders, each of whom was involved, in varying ways, in a number of offences. The spate of robberies that occurred in January and February 2018 was significant and the requirement to sentence four offenders relating to seven different indictments was not uncomplicated.

2. [80]

   From time to time, a sentencing judge may omit reference to obvious and trite propositions. Nevertheless, the reasons provided for the handing down of a sentence are an essential aspect of the criminal process allowing the criminal law to be administered with a degree of transparency and requires both the offender and the Crown to be able to understand how the sentencing judge arrived at the sentence ultimately imposed. This Court said: [54]

3. [81]

   If the applicant’s disadvantage or deprivation as a child is to be taken into account by the sentencing judge, then the sentencing judge is required, either expressly or by inference, to make that clear. Further, if the sentencing judge is to apply certain principles in fixing an appropriate sentence, relating to the low cognitive functioning of the applicant, then, again, his Honour must make that clear, either expressly or by words of necessary intendment.

4. [82]

   As earlier stated, this does not require a sentencing judge to deal at length with legal principles or law. Nor is there a need to express the implementation of principles that are otherwise obvious. For example, a statement by a sentencing judge that a discount of 25% for the utilitarian value of the plea of guilty necessarily imports that the plea of guilty was at the earliest opportunity and does not require the sentencing court to explain the principles being applied in such a process.

5. [83]

   The sentence imposed in these proceedings is the subject of challenge on the basis that the sentencing judge did not adequately, or at all, deal with the applicant’s childhood disadvantage nor the manner in which the applicant’s low cognitive functioning was to be reflected in the sentence to be imposed. If, as is suggested by the Crown, the judge was of the view that the low cognitive functioning was not causative of the offence or offending and was not, for that reason, to be taken into account in imposing an appropriate sentence, then it was necessary for the sentencing judge to make that clear.

6. [84]

   His Honour made no reference to the applicant’s developmental background. If, as is at least implied in the Crown submissions, the learned sentencing judge did not consider that the applicant’s upbringing was substantially dysfunctional, given the applicant’s reliance upon that as a factor in the sentencing proceedings, it would have been necessary for the sentencing judge to make that finding. If, on the other hand, as is submitted by the Crown, the sentencing judge did take into account the applicant’s background and other reports and character references, two issues then necessarily follow.

7. [85]

   First, if the judge did take into account the applicant’s background, such a consideration is inconsistent with the Crown’s view that his Honour may have found that the upbringing was not “substantially dysfunctional”. Secondly, it is inconsistent with the duty to state the reasons that a sentence is imposed or assessed for the sentencing judge not to comment on a major aspect of the sentencing submissions. In my view, Ground 1 of the appeal is made out and should be upheld.

8. [86]

   As a consequence of the foregoing conclusion in relation to Ground 1 of the appeal, it is strictly unnecessary for the Court, on appeal, to reach conclusions as to the success or otherwise of the other grounds of appeal. Nevertheless, it is appropriate for the Court, in my view, to deal at least with Ground 2 of the appeal.

9. [87]

   There are two aspects of this ground that require comment. There seems to be some dispute between the Crown and the applicant as to whether his Honour found that the applicant had “low cognitive functioning”, because the psychologist’s report fell short of finding that the applicant had an intellectual disability. The psychologist noted, as stated earlier, some inconsistency with the verbal skills of the applicant during interviews.

10. [88]

    Secondly, the Crown seems to suggest that, to the extent that low cognitive functioning was found to exist and was, at least in part, equivalent to an intellectual disability, the sentencing judge was not in error because there is no evidence to establish, on the balance of probabilities, any causal connection between low cognitive functioning and the offending.

11. [89]

    The effect of a mental or intellectual disability, including low cognitive functioning, on a sentence to be imposed is not confined to a circumstance in which the low cognitive functioning or intellectual disability has a causal connection with the offending. An intellectual disability has an effect on sentencing, not only because it may be causative of the offence itself, but also because the offender, with the disability, may not be an appropriate vehicle for general deterrence; may have a reduced moral culpability in the offending; and may suffer more harshly the effects of incarceration than a person without such a disability.

12. [90]

    On the other hand, as has been made clear on a number of occasions, the intellectual disability may require greater specific deterrence, so that an offender with such a disability acquires learned reactions instead of needing to exercise independent executive functioning; and it may also affect the need for protection of society as a result of a greater propensity to reoffend.

13. [91]

    It is unclear from the remarks on sentence how the learned sentencing judge treated the applicant’s low cognitive functioning and what, if any, effect it had on the sentence that was imposed.

14. [92]

    In those circumstances, I would also uphold Ground 2 of the appeal. Given that it is my conclusion that both Grounds 1 and 2 of the appeal should be upheld, it is necessary for the Court to resentence. As a consequence, the Court is required to resentence. A conclusion as to manifest excess, which is Ground 3 of the appeal, while unnecessary, should also be determined and be the subject of some comment.

15. [93]

    The pattern of past sentences is not synonymous with the range available. [55] Further, the “range” relates to that sentence range that is available for this offence committed by this offender.

16. [94]

    The applicant is a young person with cognitive disability. He is not an appropriate vehicle for general deterrence, although some attention to general deterrence is necessary. Specific deterrence is a factor, particularly in light of his past offending, ameliorated by some realisation by him that his conduct, including his drug abuse, has led to the offending and needs to change.

17. [95]

    In order for an appeal court to intervene in a sentence on the ground of manifest excess, it is not sufficient for the appeal court to conclude it would have imposed a different sentence. Manifest excess is a specie of manifest error. In order to succeed on such a ground, an applicant must show an outcome of the sentence that is plainly unjust or unreasonable. [56]

18. [96]

    Ordinarily, manifest error occurs when the sentence imposed reflects an error of principle or law, or an error of fact, which is unable to be identified. [57] It may be that the identifiable errors I consider have occurred, and to which reference has been made, account for the sentence being plainly unjust or unreasonable, but I doubt that all of it can be so explained.

19. [97]

    Nevertheless, this sentence discloses manifest excess. This is a head sentence that is more than half the age of the applicant and, from his perspective, would be crushing. [58] Particularly where the Court is dealing with a youth, the assessment of rehabilitation prospects four or seven years into the future, where maturity may have manifested, is difficult. [59] In sentencing a young person, rehabilitation is a more significant factor.

20. [98]

    Whether the applicant will have achieved the kind of maturity to allow a confident assessment that rehabilitation is probable is a matter for the Parole Authority. [60] But a sentence that will conclude at about 25 years of age and allow eligibility for parole from about 22 years of age is, in these circumstances, appropriate and this sentence, as stated, is unreasonable and plainly unjust.

21. [99]

    The offences were serious and require condign punishment and condemnation. Nevertheless, for the reasons given, I would also uphold Ground 3.

Resentence

1. [100]

   The applicant was, at the time of the offence, 17 years of age. He was a youth and to be treated as a youth. A youth of just under 18 years of age should not expect to be treated very differently from a person just over the age of 18 years. The foregoing comment does not mean that each of them does not have his or her youth taken into account in determining the sentence. [61]

2. [101]

   In BP v R, Hodgson JA discussed the relevance of youth of an offender in sentencing. His Honour said:

3. [102]

   In this case, the offender has both youth and a difficulty with intellectual functioning. This complicates the effect on general deterrence and moral culpability. In R v AN, [63] Howie J, after referring to the comments of Gleeson CJ in R v Engert, [64] dealt with the combined effect of youth and intellectual disability. His Honour said:

4. [103]

   In these proceedings, the intellectual disability of the applicant seems to be confined to low cognitive functioning, but the principles are still the same. It is only that the intellectual disability is not as profound and therefore would not have the same effect on any sentencing discretion.

5. [104]

   In the course of his reasons for judgment in R v AN, Howie J referred to the effect of compounding where there are two factors, each of which may have an effect on particular aspects of the sentencing discretion. His Honour said:

6. [105]

   Of course, the offender in AN was of a very young age. But the combined effect of youth and low cognitive functioning has a greater effect on the applicant than the separate application of each such principle.

7. [106]

   I turn then to the issue of the applicant’s developmental background and his dysfunctional childhood. The applicant had a bifurcated upbringing. His parents were separated and he spent some of the time in a supportive household with his mother and other time in a quite dysfunctional environment. His father was violent and the time he spent with his father exposed him to a general environment of violence and other dysfunctional aspects.

8. [107]

   Issues associated with the dysfunctionality of an offender’s childhood were dealt with, at length, by this Court in Kentwell (No 2). [66] In Kentwell (No 2), Bathurst CJ, and the Court, were dealing with a person raised in a “middle-class household”, without violence and without the abuse of alcohol. In so doing, the Court took account of the fact that the offender, a person of Aboriginal descent, was adopted by a Caucasian household and was subject to fundamental social exclusion by schoolmates and others. His search for belonging led him to encounter significant dysfunctionality and an environment of drug abuse and violence.

9. [108]

   Every case is different. Not every case in which there is some violence as part of the offender’s upbringing will result in the kind of deprivation that should be taken into account in determining an appropriate sentence because of its effect on moral culpability. [67]

10. [109]

    In the circumstances of this applicant, he had the opportunity to differentiate between a loving and caring environment offered by his mother and the dysfunctional environment into which he was moved on a weekly basis. Unfortunately, it seems that his low cognitive functioning may not have enabled him to differentiate “normality”, as it may have for others. It seems to me that some allowance should be made, in the determination of an appropriate sentence, for the applicant’s partly violent background and childhood. Nevertheless, that allowance should be slight.

11. [110]

    Otherwise, I independently arrive at the other conclusions of the sentencing judge and I would adopt the comments of the sentencing judge on the issues associated with the sentence and about which no complaint has been made.

12. [111]

    It is unnecessary to reiterate the circumstances of each of the offences committed by the applicant. Each has been described above.

13. [112]

    His subjective background is set out in the psychological report of Ms Brann, dated 5 November 2018. Notwithstanding the earlier comments relating to the environment offered by his mother, the time with his father had an effect even in that environment.

14. [113]

    His mother used significant corporal punishment and became more enraged when the applicant laughed at the punishment inflicted. The dysfunctional environment with his father included physical fights with his father, starting from the age of 14.

15. [114]

    The physical environment in the premises or around the premises in which his father lived included continual fighting, drug addicts and the abuse of illicit substances, daily screaming and glass smashing and general violence.

16. [115]

    The applicant was diagnosed with ADHD and conduct disorder as a child, with which diagnosis of ADHD he disagrees. The applicant has been smoking cannabis from the age of 12; progressed to daily consumption of “one stick” by age 14; consumed 6 to 8 MDMA capsules per night on weekends; and consumed speed. These were last consumed on New Year’s Eve 2017/2018. As earlier stated, his developmental needs would not be adequately catered for in an adult custodial setting; he has significant cognitive deficits and is immature.

17. [116]

    His identity, or understanding of self, has been formed and developed in the context of his offending; antisocial peers; and time spent in juvenile justice facilities. There have been few positive sources of potential identity.

18. [117]

    Having dealt with the subjective circumstances outlined in the psychological report, it is necessary to return to the objective circumstances of the offending. The offending in question includes offences under s 97(1) of the Crimes Act 1900 (NSW), to which the guideline judgment in Henry applies. His offending, however, also includes robbery while armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act to which, usually, Henry is not applied.

19. [118]

    The applicant has a long juvenile criminal history. That history includes stealing from a person; robbery armed with an offensive weapon, on many occasions; resisting officers in the execution of their duty; take and drive a motor vehicle with a person in it; assault with intent to rob; robbery in company; and malicious damage to property. The applicant is not entitled to the leniency of a first offender.

20. [119]

    The sentencing judge referred to the offences under s 97(1) being aggravated by having been committed in company. This aggravation arises because, pursuant to the terms of s 97(1) of the Crimes Act, the applicant was in possession of an offensive weapon and in company, one of which would be a precondition to the operation of the provision and the other an aggravating circumstance.

21. [120]

    In my view, his prospects of rehabilitation are guarded, particularly in the absence of an individually designed program that meets his dysfunctional background, his drug and alcohol difficulties, and his low cognitive functioning. As a consequence, he will require a longer period than usual on parole and, like the sentencing judge, I would find special circumstances.

22. [121]

    The offences occurred over a two-month period in a spate of violent, armed robberies. The purposes of specific deterrence loom as a significant factor in the fixing of any sentence.

23. [122]

    As already indicated, general deterrence is of less significance as a consequence of the applicant’s youth and low cognitive functioning. I take account of each such factor and do not lump the two together as each affects the applicant slightly differently and has a compounding effect on the other.

24. [123]

    A plea of guilty occurred at the earliest possible opportunity and, like the sentencing judge, I allow a 25% discount for the utilitarian value of that plea. The robbery causing wounding, contrary to s 98 of the Crimes Act, is a more serious offence than the offences under s 97(1), but carries the same maximum term of imprisonment of 25 years’ imprisonment as the offences under s 97(2) of the Crimes Act.

25. [124]

    The offence against s 98 of the Crimes Act also has a standard non-parole period of seven years’ imprisonment. No issue has been taken on appeal, or for the purpose of resentencing, with the assessment of objective seriousness of each of the offences. That is an appropriate concession.

26. [125]

    Having independently assessed the issues, I assess the offence under Sequence 2 as a mid-range offence; the offence in Sequence 3 as a mid-range offence; the offence under Sequence 4 as a mid-range offence; and the offences under Sequences 10 and 11 as each below the mid-range of objective seriousness. The offence, which is Sequence 9, robbery in company with a dangerous weapon, is below the mid-range in objective seriousness.

27. [126]

    The foregoing assessments take into account the aggravating features to which reference has already been made, namely, that there was both the use of a weapon and the offences were committed in company, only one of which is an aggravation; they were committed whilst on conditional liberty; and, in each case, the victim was vulnerable.

28. [127]

    The Form 1 offence is serious and makes specific deterrence more significant in relation to Sequence 2, with which the Court has already dealt.

29. [128]

    I too would impose an aggregate sentence and set out the following indicative sentences:

30. [129]

    As earlier indicated, I have found special circumstances; I would impose an aggregate sentence of 7 years and 6 months’ imprisonment, including a non-parole period of 5 years.

31. [130]

    I would propose that the Court make the following orders:

    1. (1)

       Leave to appeal be granted;

    2. (2)

       Appeal allowed;

    3. (3)

       The sentence imposed on the applicant on 23 August 2019 be quashed;

    4. (4)

       The applicant be sentenced to an aggregate sentence for all of the offences for which he was sentenced on 23 August 2019, being an aggregate head sentence of imprisonment for 7 years and 6 months, commencing 16 February 2018 and concluding 15 August 2025, including a non-parole period of 5 years concluding 15 February 2023. The applicant will be first eligible for parole on 15 February 2023.

32. [131]

    PRICE J: I have had the benefit of reading in draft the judgments of Basten JA and Rothman J. I agree for the reasons articulated by Basten JA that Grounds 1 and 2 of the appeal should be dismissed.

33. [132]

    As to Ground 3 of the appeal, I agree with Basten JA that the non-parole period of 5 years is “comfortably within a range of appropriate minimum terms, given the nature of the offending”. [68] However, I respectfully disagree with both Basten JA and Rothman J that the head sentence of 10 years is unreasonable or plainly unjust. As I am in the minority on this issue, my reasons will be brief.

34. [133]

    Basten JA at [5] above draws attention to the serious nature of the applicant’s offending and terrifying effects on the victims. The four armed robberies involved the use of weapons and violence. The applicant committed the offences whilst on conditional liberty. His prior criminal history includes control orders for robberies armed with an offensive weapon and robbery in company. The sentencing judge was “very guarded” [69] as to the applicant’s prospects of rehabilitation.

35. [134]

    Although some weight must be given to the applicant’s youth and “low-cognitive functioning”, the purposes of sentencing include the protection of the community and the recognition of the harm done to the victims. [70] As Hoeben CJ at CL (with whom White JA and N Adams J agreed) observed in R v El Sayah; R v Idaayen; R v Mansaray [2018] NSWCCA 64 at [60]-[61]:

36. [135]

    Taking into account the overall criminality of the applicant’s offending, his subjective circumstances and the guideposts of the maximum penalties and (where applicable) the standard non-parole periods, I am not persuaded that the aggregate head sentence of 10 years imprisonment was not a legitimate exercise of the sentencing judge’s discretion. I would dismiss Ground 3.

37. [136]

    Accordingly, the orders I propose are:

    1. (1)

       Leave to appeal granted.

    2. (2)

       Dismiss the appeal.