Thammavongsa v Regina

1. [1]

   SIMPSON J: I have read in draft the judgment of Bellew J. It is unnecessary to re-state the factual background.

2. [2]

   With one exception, I generally agree with the approach taken by Bellew J. There is nothing I wish to add to the outline of the facts, of the applicant’s personal circumstances, the account of the relevant competing sentencing considerations, or the submissions of counsel for the parties.

3. [3]

   The exception is what Bellew J has written concerning the role of this Court when re-sentencing after error has been found: see [44] and [45]. The view I take, with respect to the role of this Court when re-sentencing after error is found, is set out in Davis v R [2015] NSWCCA 90 at [75]-[84].

4. [4]

   Comparison of a proposed sentence with the sentence imposed at first instance deflects attention from the task, which is to exercise the sentencing discretion independently, uninfluenced by the sentence imposed at first instance (which is, ex hypothesi, flawed: see Kentwell v The Queen [2014] HCA 37; 313 ALR 451 at [42]).

5. [5]

   The sentence imposed at first instance is relevant for the two purposes identified in Davis - to avoid re-sentencing more severely than at first instance, without first warning the applicant of that possibility; and to determine the order to be made. Where, after the exercise of its independent discretion, the Court arrives at a sentence that is the same as that originally imposed, then, notwithstanding that error has been found, the appeal must be dismissed: see Criminal Appeal Act 1912 (NSW), s 6(3).

6. [6]

   Since preparing these reasons I have been provided with the additional remarks of R A Hulme J. I merely add the following, as to the question of “comparison” of the proposed re-sentence with the sentence originally passed: if, by making such a “comparison”, all that is intended is that a check be made that the proposed re-sentence does not exceed that originally imposed (for reasons of fairness - see Parker v Director of Public Prosecutions (1992) 28 NSWLR 282), or for the formulation of the final order (see Davis v R [2015] NSWCCA 90), I have no issue. However, the passage in the judgment of Bellew J, drawn from Application by MLP pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 349 at [9] is susceptible of a different interpretation, with which I would take issue. That interpretation is that the original sentence has some bearing on the selection of the re-determined sentence. (I accept that both R A Hulme J, in MLP, and Bellew J in the present case, intended the former.)

7. [7]

   In the exercise that follows I have consciously put out of my mind the sentence imposed by Kirby J.

8. [8]

   I agree with Bellew J, for the reasons given by him, that the offence falls into the mid-range of objective seriousness. I also bear in mind that, in considering the appropriate sentence, two statutory guideposts are relevant: the maximum penalty applicable (imprisonment for life) and the standard non-parole period (imprisonment for 20 years).

9. [9]

   The factors adverse to the applicant, in terms of the length of sentence to be imposed, include his pre-offence drug use. This is exacerbated by the evidence of his continued (although, perhaps, sporadic) drug use after his incarceration. The most significant effect of this is the impact that it has on the assessment of his prospects of rehabilitation. Also of serious concern is the applicant’s conduct immediately after the shooting; he kicked the victim in the head, and a little later gloated about what he had done.

10. [10]

    Factors that favour the applicant are his youth, his difficult childhood, the efforts (although with limited success) that he has made to overcome his drug use, both before and after incarceration, and the circumstances of his custody. In respect of the last matter, it is not irrelevant that he is serving his sentence in protection (although the evidence as to how that could be expected to affect the hardship of his custody was limited at best), and his expressed fear of sexual assault (which I would not discard as irrational).

11. [11]

    The sentencing judge was urged to find special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), so as to reduce the proportion of the sentence during which the applicant would not be eligible for release on parole. His Honour declined to do so, having regard to the length of the parole period, during which the applicant would have available to him the support of the Probation and Parole Service. No other reasons appear to have been advanced. No challenge was made on this application to the conclusion of the sentencing judge. For the same reasons, I would not find special circumstances so as to vary the statutory proportions between the non-parole period and the head sentence.

12. [12]

    Exercising my own independent judgment in the light of all these circumstances, I consider that an appropriate sentence is one of imprisonment for 20 years, commencing on 14 July 2003, with a non-parole period of 15 years.

13. [13]

    The orders I propose are, therefore:

    1. (1)

       Extend the time for filing an application for leave to appeal against sentence to 28 June 2013;

    2. (2)

       Grant leave to appeal against sentence;

    3. (3)

       Allow the appeal, set aside the sentence imposed on 13 September 2005;

    4. (4)

       In lieu thereof, impose a sentence made up of a non-parole period of 15 years commencing on 14 July 2003 and expiring on 13 July 2018 with a balance of term of 5 years to expire on 13 July 2023.

14. [14]

    R A HULME J: I agree with the judgment of Bellew J and with the orders his Honour proposes.

15. [15]

    There are some further observations I wish to make concerning the judgment of Simpson J.

16. [16]

    First, her Honour said in Davis v R [2015] NSWCCA 90 at [84] that the practice of the Crown relying on the words in s 6(3) of the Criminal Appeal Act 1912 (NSW) ought to cease. I respectfully agree but only insofar as the Crown submits no more than that "no lesser sentence is warranted in law". That is an approach which, in my experience, occurs quite frequently. There is a lack of clarity in such a submission. If it means no more than that the sentence passed at first instance is "within range" and for that reason the appeal should be dismissed, then it would be contrary to what was said by Spigelman CJ in Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 at [19] which was endorsed by the majority in the High Court in Kentwell v The Queen [2014] HCA 37; 313 ALR 451 at [42].

17. [17]

    If by submitting (only) that "no lesser sentence is warranted in law" the Crown is meaning to submit that if the Court finds error to have been established it would then engage in an independent re-exercise of the sentencing discretion, the result of which would be that the Court would find that the sentence should be at least that which was imposed at first instance it would not be in conflict with Baxter v R and Kentwell v The Queen.

18. [18]

    Without the Crown in many cases explaining the "no lesser sentence is warranted" submission, I would not hasten to a conclusion that it is legally flawed on the basis that it is merely referring to the first instance sentence as being "within range". But I acknowledge that a counter to this is the frequency with which the Crown makes the same submission in the same terms. If the meaning of the submission is as I have portrayed it in the preceding paragraph, it carries the implication as Simpson J observed in Davis v R at [80], that the Crown contends that the sentence was at the bottom of the range; no sentence below it was open to be imposed. The frequency with which the Crown makes the same "no lesser sentence is warranted" submission thereby conveys that sentencing judges are routinely sentencing at the bottom of the range. The Crown cannot, with credibility, be contending that.

19. [19]

    In the present case the Crown did go beyond the bare "no lesser sentence" submission. After conceding error, the updated written submissions engaged in a review of the objective and subjective facts and circumstances, including matters that had arisen since the original sentence was passed. The submissions concluded as follows (at [59]-[62]):

20. [20]

    In my respectful view, these submissions are a model of a correct approach for the Crown to take. They endeavour to engage with all of the matters the Crown submits the Court should consider in the independent exercise of the sentencing discretion. They conclude with a submission to the effect that at the end of that exercise the Court would arrive at a sentence that is, when compared with the original sentence, not less than it. I do not know what else the Crown can do short of nominating an actual sentence the Court should arrive at (which would be contrary to Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 305 ALR 323).

21. [21]

    The second observation concerns her Honour's disagreement with what Bellew J has written at [44]-[45] of his judgment. I see nothing wrong with his Honour's analysis. It involves the following components:

22. [22]

    The first point is uncontroversial. It accords with Kentwell v The Queen at [42].

23. [23]

    The second point is practical. Many issues in the court below may no longer be issues in this Court. Findings of fact made by the sentencing judge may not be challenged and for that reason may be accepted by this Court without the need for any further assessment.

24. [24]

    The third point appears to have been misconstrued (with respect). It is not a matter of carrying out a comparison through the course of this Court independently determining what the appropriate sentence should be. Bellew J has correctly drawn from what I wrote in Application by MLP pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 349 at [9]:

25. [25]

    The point of comparison is at the end of the process. The Court determines what it considers the sentence should be. It then has to, as Simpson J acknowledges above at [5] (and in Davis v R at [82]-[83]), make a comparison of that determination with the original sentence.

26. [26]

    BELLEW J: On 13 September 2005, having been found guilty by a jury of the murder of Khang Vinh Tien (“the deceased”) on 12 July 2003, Meng Thammavongsa (“the applicant”) was sentenced by Kirby J to imprisonment for 21 years to date from 14 July 2003. His Honour imposed a non-parole period of 16 years ending on 13 July 2019, at which time the applicant will be eligible for parole: R v Thammavongsa [2005] NSWSC 915.

27. [27]

    The applicant now seeks an extension of time in which to seek leave to appeal against the sentence imposed.

The application for an extension of time

1. [28]

   Two affidavits of Madeleine Schneider, affirmed on 3 February 2014 and 24 February 2015 respectively, set out the relevant chronology. In summary, the applicant filed a notice of intention to seek leave to appeal against his sentence on 20 September 2005. His application for legal aid was refused following advice from counsel. Accordingly, no appeal proceeded at that time.

2. [29]

   On 5 October 2011 the High Court delivered its decision in Muldrock v R [2011] HCA 39; (2011) 244 CLR 120. In December 2011 Legal Aid NSW received advice from senior counsel regarding the implications of that decision upon persons who were serving sentences for offences for which a standard non-parole period was prescribed. A review team was then established within Legal Aid NSW to consider the impact of the decision in Muldrock. Advice was received from counsel on 11 October 2012 in respect of the applicant’s case. Legal aid was then granted to the applicant and on 28 June 2013 an application for an extension of time in which to seek leave to appeal was filed.

3. [30]

   In late 2013 this Court heard a number of applications to extend time in cases which were said to be affected by the decision in Muldrock. Two of those decisions, Kentwell v R [2013] NSWCCA 266 and O’Grady v R [2013] NSWCCA 281, were the subject of a grant of special leave to appeal to the High Court. On 9 October 2014 the High Court delivered its decision in each matter: Kentwell v R [2014] HCA 37; (2014) 88 ALJR 947; O’Grady v R [2014] HCA 38. The High Court concluded that the test which had been applied by this Court to determine whether an extension of time should be granted (such test having been laid down in Abdul v R [2013] NSWCCA 247) was incorrect. The progress of the present application was delayed as a consequence of awaiting the decisions in O’Grady and Kentwell.

4. [31]

   The approach which is to be taken by this Court in determining whether or not an extension of time should be granted is set out in Kentwell (supra) where the plurality (French CJ, Hayne, Bell, and Keane JJ) said (commencing at [32]):

THE APPROACH OF THE SENTENCING JUDGE

1. [32]

   Having set out the circumstances of the offending and the applicant’s subjective case, the sentencing judge said (at [27]):

2. [33]

   His Honour then turned (commencing at [30]) to consider whether the offending should be regarded as falling in the mid-range of objective seriousness:

THE DECISION IN MULDROCK v R

1. [34]

   In Muldrock the High Court concluded (at [25]) that the decision of this Court in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 was incorrect. The High Court found that it was an error to characterise s. 54B(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) as being framed in terms which required a sentencing judge to use the standard non-parole period as the starting point for an offence which was assessed as being in the middle of the range of objective seriousness.

2. [35]

   The High Court further concluded (at [26]) that it was a mistake to give primary, let alone determinative, significance to the applicable standard non-parole period. The Court concluded that the correct approach was to identify all relevant factors, including any prescribed standard non-parole period, and make a value judgment as to the appropriate sentence, given all such factors.

3. [36]

   Significantly, in light of the error asserted in the present case, the High Court specifically rejected (at [28]) the adoption of a two-stage approach to sentencing, commencing with an assessment of whether the offence falls in the middle of the range of objective seriousness, followed by an inquiry as to whether there are matters justifying a longer or shorter period.

CONSIDERATION

1. [37]

   In the present case the Crown conceded that the reasons of the sentencing judge reflected Muldrock error. That concession was an appropriate one for two principal reasons.

2. [38]

   Firstly, his Honour’s reference (at [28]) to the decision in Way, and the question that his Honour then posed, make it clear that he regarded the primary issue as being whether or not there were reasons for not imposing the standard non-parole period. In doing so, his Honour gave the standard non-parole period primary, or perhaps even determinative, significance. In light of the decision in Muldrock, that approach reflected error.

3. [39]

   Secondly, it is evident from his Honour’s reasons at [30]-[34] that he effectively used the standard non-parole period as the starting point in determining an appropriate sentence. Having done so, he proceeded to consider whether there were factors which justified the imposition of a longer or shorter non-parole period. In doing so, and leaving aside the significance which his Honour attached to the standard non-parole period, his Honour adopted a two stage approach to sentence. The High Court determined in Muldrock that such an approach was erroneous.

4. [40]

   It will be evident from the passages in Kentwell set out in [8] above that the question of whether or not a proposed appeal has prospects of success is one of the factors which is relevant to the determination of whether or not an extension of time ought be granted. In the present case, where the affidavit material adequately explains the delay in bringing the application to extend time and where error is established, it is appropriate to make orders extending time and granting leave to appeal.

THE APPROACH TO DETERMINING SENTENCE

1. [41]

   Error having been established, the provisions of s. 6(3) of the Criminal Appeal Act 1912 are enlivened. In Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 Spigelman CJ said (at [19]):

2. [42]

   In Kentwell, the plurality affirmed the correctness of that observation (commencing at [42]):

3. [43]

   The fresh exercise of the sentencing discretion by this Court involves moving directly from the identification of error to an independent determination of what sentence is warranted in all of the circumstances. It is a matter of comparison of what that determination yields with what the original sentence was: Application by MLP pursuant to s. 78 of the Crimes (Appeal and Review) Act 2001 [2015] NSWSC 349 at [9] per R A Hulme J.

4. [44]

   What is required is for the Court to make an independent assessment of the appropriate sentence and compare it with that originally imposed in order to determine whether there should be a lesser sentence. That has to be done in the context of the submissions made before this Court: MLP at [25].

5. [45]

   The circumstances which this Court must consider include matters which have arisen since the original sentence was passed. In that regard, the following affidavits were read in the applicant’s case on the question of re-sentence:

6. [46]

   The Crown read the following affidavits on the same basis:

7. [47]

   With these principles in mind I turn to consider the question of sentence.

THE CIRCUMSTANCES OF THE OFFENDING

1. [48]

   The circumstances of the offending were set out by the sentencing judge commencing at [3]:

The applicant’s background

1. [49]

   The applicant gave evidence on sentence, the essence of which was to confirm the contents of the report of Ms Anna Robilliard, Psychologist, dated 2 August 2005. His background may be summarised as follows.

2. [50]

   The applicant was born in Laos. He was 21 years of age at the time of the offending. He had a difficult childhood. After his father died during the war in Laos the applicant (who was then aged 5) came to Australia. After arriving, his mother formed a relationship with a new partner, whom she subsequently married. There were tensions between the applicant and his stepfather.

3. [51]

   The applicant commenced using illicit drugs at an early age. He began using cannabis shortly after entering high school. He then began using heroin. He was expelled from one school. He had difficulty adjusting to the school to which he transferred following that expulsion. With the support of his family he underwent treatment for drug addiction, unfortunately without any real success.

4. [52]

   Against this background, the applicant found himself committing criminal offences as a juvenile. He was convicted of robbery in company before a Children’s Court in 1999 and was ordered to perform 150 hours community service. He was subsequently convicted of various offences involving the possession or supply of prohibited drugs. He was initially given the benefit of a fine but was later sentenced to imprisonment for 3 months.

5. [53]

   In 2001 the applicant returned to Laos where he spent time with his grandmother. He also underwent some form of treatment for heroin addiction, and later spent time living in a temple with a group of monks. He then returned to Australia. Although he managed to cease his use of heroin, he developed an addiction to alcohol and ecstasy. He was affected by both substances at the time of the offending. Ms Robilliard found, following formal testing, that the applicant was functioning in the average to below average range of intelligence.

The applicant’s remorse

1. [54]

   Ms Robilliard, whose report was before the sentencing judge, said (at page 6):

2. [55]

   Ms Robilliard also said (at p. 9):

3. [56]

   In his affidavit of 4 February 2015 the applicant said (at para. 22):

The applicant’s prospects of rehabilitation

1. [57]

   In his affidavit of 4 February 2014 the applicant stated that he started to use drugs shortly after being taken into custody in order to “numb the pain”. He went on to state that he stopped using drugs at the end of 2012. Clearly, that was not the truth. Annexure A to the affidavit of Ms Fleeton establishes that between October 2013 and July 2014 the applicant had six separate instances of misconduct recorded, all of which were related directly or indirectly to his possession of drugs or his possession of implements used for taking them. In his subsequent affidavit of 26 March 2015 the applicant expressly conceded that there were instances in 2014 when he was found to be in possession of methadone and when he failed urine testing.

2. [58]

   That said, the applicant has attended literacy and numeracy classes on a regular basis since January 2014. He has been employed in custody and has completed a number of courses directed towards his rehabilitation. Partly as a consequence of the completion of these courses the applicant’s classification was reduced in September 2013. He has expressed a willingness to enrol in other courses. He continues to maintain regular contact with his family and has the support of his mother with whom he proposes to live upon his release.

Other factors arising from the affidavit evidence

1. [59]

   The applicant stated that his period in custody “has not been easy”. He asked, at an early stage, to be placed on protection out of fear of threats and violence by friends of the deceased who were also in custody. The applicant remains on protection, although at a level which appears to be the lowest in the custodial system. The applicant also stated that he had received “attention” from other inmates, as a consequence of which he was (and remains) in fear of being sexually assaulted.

2. [60]

   Although the applicant conceded that he had experienced difficulties with anxiety and depression prior to his offending he said that these problems had increased since being taken into custody. As I have previously noted, he admitted to having taken drugs in custody and stated that he had attempted suicide at one point by attempting to inject bleach. The fact that he suffers from anxiety is confirmed by the contents of a clinical note dated 2 September 2013 (part of Annexure A to the affidavit of Mr Eccleshall). That note records the applicant being described as a “highly anxious man, mildly tremulous, stuttering, distraught”.

3. [61]

   As a result of all of these matters, the applicant has come under psychiatric care since being taken into custody. He was prescribed anti-depressant medication in 2009 but ceased taking it in 2011, apparently having formed the view that it was not assisting him. In the period immediately following his cessation of medication the applicant failed a number of urine tests which revealed the presence of illicit drugs in his blood stream.

4. [62]

   The applicant then resumed psychiatric care in 2013 and was again prescribed anti-depressant medication. However once again he ceased taking that medication after a short period.

5. [63]

   The applicant continues to suffer from anxiety and depression. He has recently come under the care of Dr McClure, psychiatrist, who has prescribed anti-depressant medication which the applicant is again taking. The applicant also stated that he suffered back injuries as a consequence of a motorcycle accident which occurred prior to being taken into custody and was diagnosed as having hepatitis C in about 2001.

6. [64]

   Despite his protected status the applicant commenced to start sharing a cell in 2014. He has said that he feels claustrophobic as a consequence and that he worries about being attacked whilst sleeping.

7. [65]

   He continues to maintain regular contact with his family, including his sister and mother.

SUBMISSIONS OF THE APPLICANT

1. [66]

   In submitting that the applicant’s subjective case was compelling, senior counsel emphasised the applicant’s youth, and what was said to be his immaturity, at the time of the offending. It was submitted that both factors reduced the applicant’s moral culpability.

2. [67]

   Senior counsel submitted that the applicant had originally taken the weapon to the function intending to show it to his friends because it was “novelty”. It was submitted that the unusual nature of the weapon was such that a person of the applicant’s then age may well have wanted to show it to his friends. It was submitted that against this background, the applicant’s subsequent actions should not be regarded as being “adult-type” offending and that in terms of objective gravity, the weapon used by the applicant to kill the deceased fell at the lower end of the range compared with (for example) a pistol or a shotgun.

3. [68]

   Senior counsel submitted that properly viewed, the applicant’s offending was the act of an immature young man. It was submitted that such immaturity was confirmed by the following passage from the report of Ms Robilliard (at p. 5):

4. [69]

   Senior counsel accepted that taking the weapon to the function for the purpose of showing it to friends was clearly reckless, particularly in circumstances where ammunition was also taken. It was also accepted that the applicant chose to retrieve, and load, the weapon when there was an indication that hostilities may be forming. However senior counsel emphasised that the applicant’s decision to fire the weapon was not made until the time of the actual confrontation, and that there was therefore no planning or premeditation. He submitted that in these circumstances the applicant’s offending should be regarded as essentially spontaneous. For these reasons, senior counsel took issue with the finding of the sentencing judge that the offending fell within the mid-range of objective seriousness. He submitted that all of the factors to which he had referred supported a conclusion that the offending fell below that level.

5. [70]

   Senior counsel submitted that the applicant’s criminal history was largely insignificant. He also drew attention to the applicant’s expressions of remorse in his recent affidavit which, it was submitted, were consistent with the findings of the sentencing judge.

6. [71]

   In terms of the evidence of the applicant’s conditions of custody, senior counsel emphasised that the applicant:

7. [72]

   All of these matters were relied upon in support of the submission that the applicant’s conditions of custody were difficult.

8. [73]

   Senior counsel accepted that the applicant’s drug use whilst in custody had adversely affected his prospects of rehabilitation. However it was submitted that this had occurred against a background of being in protective custody and suffering anxiety and depression. It was further submitted that those matters which had adversely affected the applicant’s prospects of rehabilitation were to be balanced against the evidence of the applicant having undertaken various courses whilst in custody. It was submitted that his efforts in that regard, and his expressed willingness to attend further courses, demonstrated a preparedness on the part of the applicant to make further attempts at rehabilitation.

SUBMISSIONS OF THE CROWN

1. [74]

   The Crown submitted that the approach to the sentencing of young offenders, which generally ascribed greater emphasis to rehabilitation and less to deterrence and retribution, was not a blanket approach and that the extent of its application was to be determined on a case by case basis. In particular, the Crown submitted that the youth of an offender did not automatically lead to a reduced sentence.

2. [75]

   The Crown accepted that if it could be established that the applicant’s immaturity was a significant contributing factor to the offending then this would support a conclusion that his criminality was reduced. However it was submitted that there was no relevant nexus established between the applicant’s youth and his offending.

3. [76]

   The Crown also accepted that the mere presence of violence did not, of itself, indicate that a young person had been acting as an adult. However, it was submitted that in offending as he did, the applicant had effectively conducted himself as an adult. In support of its position the Crown relied upon a number of factors.

4. [77]

   Firstly, the Crown relied upon the fact that having taken the weapon to the function, the applicant retrieved it from the motor vehicle, loaded it and then returned to the group. It was submitted that whilst the applicant may not have intended to kill the deceased, the retrieval and loading of the weapon were necessarily deliberate decisions.

5. [78]

   Secondly, the Crown relied upon that part of the report of Ms Robilliard which was in the following terms (at page 8):

6. [79]

   The Crown submitted that this history provided by the applicant ran contrary to the suggestion that his offending was a reflection, or a result, of his immaturity. The Crown emphasised, in particular, Ms Robilliard’s reference to the applicant having assumed “a sense of responsibility” within the family with whom he was living at the time. It was submitted that the only aspect of the offending which reflected immaturity was the applicant’s action in taking the weapon to show it off to his friends, and that this was of limited weight in all of the circumstances.

7. [80]

   Thirdly, the Crown pointed to the fact that applicant was 21 years of age at the time of the offending. It was submitted that in all of the circumstances, and having attained his majority, he should not be regarded as an immature young man.

8. [81]

   Fourthly, and quite apart from the fact that the offending involved the use of a weapon, the Crown emphasised that the applicant had chosen to retrieve, and then load, the weapon when signs of conflict were emerging. The Crown also emphasised that having loaded the weapon, the applicant walked some distance to confront the group (the members of which were all unarmed). It was submitted that the statement then made by the applicant, namely “Do you want to play?”, was inherently provocative and reflected the fact that the applicant was the aggressor.

9. [82]

   Finally, the Crown relied upon the fact that having shot the deceased, the applicant kicked him in the head before leaving the area. It was submitted that this circumstance increased the objective gravity of the offending.

10. [83]

    The Crown submitted that all of these factors supported the conclusion that the offending was properly viewed as falling at the mid-range of objective seriousness. The Crown further submitted that the contents of the affidavit of Ms Fleeton (to which I referred at [57] above) reflected adversely upon the applicant’s prospects of rehabilitation.

The applicant’s youth and the circumstances of his offending

1. [84]

   One of the principal submissions advanced by senior counsel for the applicant was that the applicant’s age, and what was said to be his immaturity, reduced his level of moral culpability. This Court has considered the principles relevant to the sentencing of young persons on a number of occasions.

2. [85]

   In KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 McClellan CJ at CL said (at [22]-[26]):

3. [86]

   Senior counsel placed considerable emphasis on the judgment of Hodgson JA in BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 in support of the applicant’s position. In that case Hodgson JA (at [3]) expressly accepted the principles set out by McClellan CJ in KT (at [22]-[26]) before proceeding to say the following:

4. [87]

   In the same case Johnson J having set out (at [74]) the principles in KT said (at [75]):

5. [88]

   In JM v R [2012] NSWCCA 83; (2012) 223 A Crim R 55 Simpson J, having reviewed the authorities, said (at [108]):

6. [89]

   More recently in HJ v R [2014] NSWCCA 21 Garling J (with whom Hoeben CJ at CL and RS Hulme AJ agreed) observed (at [56]):

7. [90]

   There is no doubt that the applicant’s youth at the time of the offending is a relevant factor to be taken into account in considering sentence. However, I am not satisfied that the applicant’s offending displayed the level of immaturity for which senior counsel contended, nor am I satisfied that there was any nexus between any such immaturity and the offending.

8. [91]

   The unusual nature of the weapon was such that the applicant may well have regarded it as something of a novelty which he wished to show his friends. However in my view, any immaturity on the part of the applicant was confined to that circumstance and played no part in what occurred thereafter. I have come to this view for a number of reasons.

9. [92]

   Firstly, the applicant did not only take the weapon to the function. He also took ammunition. Showing the weapon to his friends because its appearance was novel did not necessitate taking ammunition.

10. [93]

    Secondly, I am unable to accept the submission that the weapon in the present case was of less significance when compared to other weapons or firearms. The fact that it could be fired unobtrusively rendered it particularly dangerous. The consequences of its use were no less serious than those which can result from the use of a more “conventional” firearm.

11. [94]

    Thirdly, whilst I accept (as the sentencing judge did) that the offending was not planned or pre-meditated, it nevertheless involved the applicant:

12. [95]

    The applicant was not a teenager: KT at [26]. When viewed as a whole his conduct was not impulsive. His behaviour did not reflect emotional immaturity, nor did it reflect a less than fully developed capacity to control impulses: BP at [5] and [6]. On the contrary, the applicant’s offending was the culmination of a series of considered and deliberate decisions. It was accompanied by a statement which was inherently provocative. That statement, the applicant’s admitted anger at the time of firing the weapon, his assault of the deceased by kicking him (at a time when he was trying to regain his feet after being shot), and the statement which was made immediately following that assault, reflected an apparent desire on the part of the applicant to demonstrate his “superiority” over those in the opposing group. None of that was immature. It was adult like offending.

13. [96]

    It follows that whilst the applicant’s youth remains a relevant factor to take into account in determining sentence, it is not such as to warrant the application of the principles set out in KT and the other authorities to which I have referred. There is nothing to suggest that immaturity played any part in the applicant’s offending. This was a crime of considerable gravity which involved the use of a weapon.

14. [97]

    It is also significant that the applicant was affected by both alcohol and drugs at the time of the offending. He initiated a violent and unprovoked attack upon the deceased. In all of these circumstances, general deterrence remains significant: R v Carroll; Carroll v R [2010] NSWCCA 55; (2010) 77 NSWLR 45 at [60]-[61] per Allsop P and Johnson J (Spigelman CJ, Kirby and Howie JJ agreeing).

15. [98]

    Giving full weight to the fact the offending was not premeditated or accompanied by an intention to kill, all of the matters to which I have referred support the conclusion that the offending falls at the mid-range of objective seriousness.

The applicant’s subjective circumstances

1. [99]

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

The applicant’s criminal history

1. [100]

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

The applicant’s prospects of rehabilitation

1. [101]

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

The applicant’s conditions of custody

1. [102]

   The applicant has experienced some difficulties in custody which have seen him placed on some form of protection. The applicant’s placement appears to have been brought about by his perceived need for protection, rather than as the result of a specific violent incident or incidents.

2. [103]

   The applicant also been diagnosed as suffering from anxiety and depression. I accept that this has the capacity to render his time in custody more onerous. However two matters must be noted. Firstly, the applicant concedes that he suffered from anxiety prior to being taken into custody. Secondly, specialist medical treatment has been consistently made available to the applicant, including the prescription of anti-depressant medication. The applicant has chosen not to take that medication from time to time because of a self-assessment that it was not beneficial. That is obviously the applicant’s right. However, if that is a course that he wishes to take he faces an obvious difficulty in asserting that his anxiety and depression render his conditions of custody more onerous.

CONCLUSION

1. [104]

   For the reasons stated, this was serious offending which fell at the mid-range of objective seriousness. I have taken into account the applicant’s youth. That said, he was 21 years of age and his offending was not reflective of immaturity.

2. [105]

   The applicant’s subjective circumstances, particularly those surrounding his upbringing, are relevant. The circumstances which saw him migrate to Australia at a young age were obviously unfortunate. It is apparent that the applicant developed a drug habit in his early teens from which he never fully recovered. However whilst these matters are obviously relevant I would not categorise them, or the applicant’s subjective case generally, as compelling. In particular, and despite his strained relationship with his step father, the applicant had the support of his family throughout his formative years. That support extended to funding external treatment to assist the applicant in relinquishing his heroin habit.

3. [106]

   I acknowledge that the applicant’s conditions of custody are difficult. However, to the extent that those difficulties emanate from mental illness, appropriate treatment is (and has always been) available to him in custody. The applicant has made some attempt towards his rehabilitation by enrolling to undertake appropriate courses of study, although his progress has been interrupted by his relapse into drug use. For all of those reasons, his prospects of rehabilitation are guarded.

4. [107]

   Having taken all of these matters into account I have come to the view, in the fresh exercise of the sentencing discretion, that no other sentence is warranted.

ORDERS

1. [108]

   I propose the following orders: