Dungay v R

1. [1]

   BELL P: I agree with N Adams J.

2. [2]

   DAVIES J: I agree with N Adams J.

3. [3]

   N ADAMS J: The applicant, Jason Dungay, is a 25 year old Aboriginal man who seeks leave to appeal against the sentence imposed upon him by her Honour Judge Wells SC on 27 May 2019 at the District Court at Lismore. After a late plea of guilty, the applicant stood to be sentenced for three serious offences:

4. [4]

   The offences arose from occasions when the applicant and his co-offenders, whilst heavily disguised and in possession of weapons, entered or smashed their way into clubs or hotels shortly before closing and stole money as the staff were preparing to secure it in safes. A total of $79,803 was stolen.

5. [5]

   The applicant received an aggregate sentence under s 53A of the Sentencing Act of 12 years imprisonment, with a non-parole period of 8 years, to commence on 28 June 2017. The non-parole period will expire on 26 June 2025 and the head sentence will expire on 27 June 2029. The indicative sentences were as follows:

6. [6]

   The applicant’s co-offenders, Mr Matthew Gray and Mr Leonard Hoskins, were sentenced for their involvement in the offending at the same time as the applicant. There were slight differences between the respective charges, as will be discussed further below. Mr Gray received the same sentence as the applicant. Mr Hoskins received an aggregate term of 14 years and 6 months imprisonment with a non-parole period of 10 years.

Grounds of appeal

1. [7]

   The applicant relies on three grounds of appeal:

2. [8]

   The Crown conceded that error had been established with respect to Ground One.

Facts

1. [9]

   An Agreed Statement of Facts was tendered on sentence. The following is a summary of those facts which describes the offences in chronological order.

2. [10]

   During 2016 and 2017, police set up “Operation Soren” to investigate armed robberies in the Coffs Harbour, Clarence and mid-North Coast area. During that investigation, police used covert evidence gathering techniques such as telephone intercepts and listening devices. That material was analysed and it emerged that coded conversations using fishing terms were being used in relation to the planning and commission of a number of robbery offences. Typically, the offenders would communicate using this code and then meet together and commit an offence.

3. [11]

   A series of telephone conversations between the applicant and his co-offenders on 9 and 10 March 2016 were intercepted. It was discussed that the three of them would go for a “lurk and a fish”. As a result of this, police followed a motor vehicle registered to the partner of Mr Gray in the vicinity of the Five Mile Hotel in Grafton. A number of marked police vehicles circulated in the area to prevent an offence. When the hotel closed, the offenders did not commit a robbery that night due to the number of marked police vehicles in the area. It was an agreed fact that the three of them had conspired to commit an armed robbery that night. The next morning, Mr Hoskins told his domestic partner that “the police chased us last night and nearly had us!”

4. [12]

   This was the first offence taken into account by her Honour on the Form 1.

5. [13]

   On 2 May 2016 at about 4:27pm, Mr Gray contacted the applicant and said “come for a lurk, fish?” The applicant agreed. Less than an hour later Mr Gray sent a message to Mr Hoskins which read “where u we comin”. The three offenders then met in Wauchope.

6. [14]

   At 10.29pm, the applicant and co-offenders Mr Hoskins and Mr Gray, whilst wearing facial disguises and armed with knives and poles, smashed their way into the Wauchope Country Club. A staff member was counting the takings but was able to leave via an internal stairwell and rear exit before the three offenders entered the strong room. A fourth co-offender waited outside as a lookout.

7. [15]

   The applicant and his co-offenders stole $32,815, a white bucket containing coins and a staff tip tin. The offence was captured on CCTV.

8. [16]

   On 20 June 2016, the applicant and co-offender Mr Gray met in the Coffs Harbour area. The co-offender Mr Hoskins had enquired with Mr Gray about going “fishing”. A car associated with the offenders was noticed by marked and covert police cars patrolling the area near the Park Beach Bowling Club and the Coffs Beach Hotel Motel. It was an agreed fact that an armed robbery of the Bowling Club was planned but not carried out due to the presence of the police vehicles.

9. [17]

   This was the second offence taken into account by her Honour on the Form 1.

10. [18]

    On 29 August 2016, police monitored communications between the applicant, Mr Gray and another about “going for a fish”. The applicant, Mr Gray and others were observed in a motor vehicle. Fearing that an armed robbery was imminent, a marked police car was deployed to intercept the vehicle. The vehicle accelerated rapidly and conducted a U-turn. The occupants of the vehicle then threw items out of their vehicle when police approached. The discarded items were three large kitchen knives, black t-shirts and a black pillowcase. The vehicle was later seen to drive slowly past the place where the items had been discarded. It was an agreed fact that the offenders had conspired to commit an armed robbery at the Five Mile Hotel at closing time but did not continue due to the number of marked police vehicles in the area (and being stopped by police).

11. [19]

    This was the third offence taken into account by her Honour on the Form 1.

12. [20]

    At about 9:58pm on 7 December 2016, the applicant, along with Mr Gray and two other offenders, used a rock and a metal umbrella support stand to smash the glass panel of the rear entry doors to the Macksville Ex-Service's Club. One of the offenders remained outside as a lookout. All of the offenders were disguised and two were carrying large knives.

13. [21]

    Two staff members, one male and one female, were still present closing up the club. Upon entering the club, two of the offenders approached staff members and made threats to the effect of “[t]ake me to the safe. I will fuckin' stab you". The offenders were led to the safe and the female staff member was told to put the money into a bag.

14. [22]

    The money stolen amounted to $14,018.

15. [23]

    Both staff members were told to lie on the ground. The female staff member's purse was stolen and this contained her wallet and mobile phone. All four offenders then left the club and ran across the car park. This offence was also captured by CCTV.

16. [24]

    On 20 April 2017, police intercepted a number of telephone calls and text messages between the applicant, Mr Gray and Mr Hoskins.

17. [25]

    At 11.50pm on 20 April 2017, two staff members at the Toormina Hotel were completing procedures to close for the night when the applicant entered, along with Mr Gray, Mr Hoskins and another male. They were armed with knives and wearing facial coverings and dark clothing. Two patrons playing poker machines were also inside the hotel.

18. [26]

    One of co-offenders demanded that the staff members take him to the safe in the office. They were threatened: "[i]f you fucking move, I'll stab you in the chest”. The two perpetrators emptied a large amount of cash (notes and coins) into plastic buckets before all four perpetrators left the premises. The patrons were moved into the bistro area and instructed to lie on the ground. At one point a knife was placed to the back of one of the patrons and a threat was made.

19. [27]

    The total proceeds of the offence were $32,970. The offence was captured on CCTV.

20. [28]

    On 21 April 2017, the applicant bought $815 worth of clothing at various stores in Coffs Harbour. He was noted to have a large amount of cash in $50 and $100 notes. He called an associate and gave him directions to a box containing $500 cash within a pair of blue shorts.

21. [29]

    On 23 April 2017, the applicant purchased a car with $2,500 in cash.

22. [30]

    On 24 April 2017, police executed a search warrant on the applicant’s home in Toormina. They located and seized a number of items from the applicant’s bedroom that were linked to the Toormina Hotel robbery as well as knives similar in appearance to those used in that offence.

23. [31]

    The applicant was arrested on 8 May 2017 and charged.

Proceedings on sentence

1. [32]

   The proceedings on sentence were conducted before Judge Wells SC on 17 May 2019. All three co-offenders tendered material and made submissions on that day.

2. [33]

   In addition to the Agreed Facts, the Crown also tendered the relevant Form 1 and criminal history in relation to each of the offenders.

3. [34]

   The applicant and Mr Gray were sentenced in relation to the same matters, although the applicant had one additional Form 1 offence (the Proceeds of Crime offence). Mr Hoskins was sentenced for a separate robbery that was not committed with the applicant and Mr Gray but he was not involved in one of the matters they were sentenced on. On this basis, there was little distinction between the three offenders’ respective offending.

4. [35]

   Most of the applicant’s criminal history was in the Children’s Court. Given its significance to Ground One, I propose to set it out in full. Sentencing options in the Children (Criminal Proceedings) Act 1987 (NSW) are set out in s 33. The section numbers below refer to the relevant provisions of that Act.

5. [36]

   On 13 June 2007, the applicant was sentenced in relation to two robberies in company and one fail to appear. He was 14 years old at the time of the offences and sentence. He was placed on a s 33(1)(b) bond.

6. [37]

   On 17 September 2007, the applicant was sentenced in relation to one break, enter and steal, and two attempted break, enter and steal offences. He was 13 years old at the time of the offences and 14 years old at sentence. He was placed on a s 33(1)(b) bond. He was called up for breaching the bond on 25 January 2008 when he was 15 years old and placed on a control order under s 33(1)(g) for 6 months.

7. [38]

   On 25 January 2008, he was also placed on a control order for larceny and assault occasioning actual bodily harm offences committed when he was 14 years old, and shoplifting offences committed when he was 15 years old. He was 15 years old at the time of sentence.

8. [39]

   On 1 July 2010, the applicant was placed on a control order for offences of goods in custody, larceny and break, enter and steal (committed when he was 16 years old) and offences of take and drive conveyance and be carried in a conveyance (committed when he was 17 years old). He was 17 years old at the time of sentence.

9. [40]

   On 23 August 2010, an offence of escape police custody was dismissed with a caution under s 33(1)(a)(i). He was 17 years old at that time.

10. [41]

    On 10 January 2011, the applicant was placed on a community service order of 20 hours under s 33(1)(f) for a common assault committed when he was 17 years old. He was 18 years old at the time of sentence.

11. [42]

    The only offences on his record as an adult were a fine imposed on 7 January 2013 for driving with a low-range PCA, and a s 10 bond for 6 months imposed on 14 July 2014 for resisting an officer in the execution of his duty.

12. [43]

    The victims of the robbery read their victim impact statements to the Court.

13. [44]

    The first victim, a male who worked at the Macksville Ex Servicemen’s Club, described that his knee injuries were aggravated when he was ordered to the floor, which resulted in his surgeries being brought forward. He also stated that, at 63 years of age, the robbery will never leave in his mind. He often wakes in the night and pictures the two men charging across the dance floor wielding their knives in the air. Whenever he hears a loud bang at work the scene repeats in his mind.

14. [45]

    The second victim, a female, described how she has panic attacks in her sleep and has extreme anxiety in the most normal situations. She feels unsafe in all environments, including her workplace and home. She remembers what one of the offenders yelled at her. She dreams of nights when the threats become a reality and she is stabbed with the knife that she saw in the gaming room. She described starving herself daily to feel that she has control of her life and body. She is also self-harming.

15. [46]

    The third victim, a female who worked at the Macksville Ex-Servicemen’s Club, described how her life has been affected significantly since the robbery. She had sleepless nights, regular nightmares and a sense of fear as it gets dark. Her mental state has still not recovered. She has post-traumatic stress disorder, anxiety and depression. She also has vivid flashbacks that are triggered by noise, smell or being startled. Her marriage is under pressure. She was pregnant at the time of the robbery and suffered a miscarriage afterwards.

16. [47]

    On behalf of the applicant, a psychologist’s report from Ms Julie Dombrowski dated 10 May 2019 was tendered. She recounted what the applicant had told her about his childhood and also assessed his current mental condition.

17. [48]

    Ms Dombrowski described the applicant as engaging well with the interview process and speaking with a sophisticated vocabulary. Her opinion was that he is of normal intelligence and demonstrated some insight into his behaviour. The applicant told her that he had been taking .2 g of methamphetamine and drinking 18 beers a day at around the time of the offences. The reason he agreed to take part in the robberies was to fund his ongoing substance abuse.

18. [49]

    As for the applicant’s childhood, both of his parents had served terms of imprisonment. He was mainly raised by his grandmother. He denied ever experiencing any neglect or abuse while she was looking after him. He first attempted suicide at the age of 12 by hanging. He did not receive any counselling after this. When he was 13, his parents separated and his mother moved down to the South Coast to live so he went down to live with her. From then on he led a transient lifestyle. He left school in Year 8. He was later able to complete Year 10 in Juvenile Detention.

19. [50]

    The applicant described how he was regularly involved in fights because that was how disagreements are settled in his community. He commenced drinking alcohol and smoking cannabis when he was 12 years old. He experienced symptoms of drug-induced psychosis in 2011 and 2015. He sought assistance from the Galambila Aboriginal Health Service, but this was unsuccessful and he frequently relapsed.

20. [51]

    Ms Dombrowski also noted from NSW Justice Health Records that the applicant was admitted to hospital in June 2015 and diagnosed with drug-induced psychosis. He was prescribed an antipsychotic and, in March 2019, was supported by Justice Health staff to gradually withdraw his medication. He denied any current psychotic symptoms or suicidal ideation when speaking with Ms Dombrowski. As for her diagnosis of him, Ms Dombrowski was concerned that he was developing a personality disorder with antisocial features as a result of his poorly structured upbringing, his exposure to people who normalise the use of violence, substances, and his social marginalisation. His substance abuse exacerbated these mental health issues. She emphasised the importance of ongoing psychiatric monitoring.

21. [52]

    The applicant also gave evidence. He was the only one of the three offenders to do so. In his evidence he apologised to the victims. Having recently heard the statements read by the victims he took full responsibility and apologised to them. He stated that his “nan” was “pretty old”, went to clubs and he would not like this to happen to her.

22. [53]

    He described using alcohol, marijuana and methamphetamines at the time of the offences. Since being in custody, he has seen people using drugs inside but he cannot handle it anymore because of his drug-induced psychotic episodes. He has not had the opportunity to do any courses as he is still on remand. He will reside with his father when he is released from custody and his father, cousins, aunties and brother were present in Court to support him.

23. [54]

    In cross-examination he was asked why the Toormina Hotel robbery was committed just before midnight. His response was:

24. [55]

    And later:

25. [56]

    Written submissions were relied upon in relation to the applicant. In oral submissions, the following submission was made in relation to the applicant’s Children’s Court record:

Remarks on sentence

1. [57]

   On 27 May 2019, her Honour sentenced the applicant, Mr Gray and Mr Hoskins together on. She noted that each of the offenders had entered pleas of guilty on the second day of the trial and awarded a 10% discount to each of them on account of this. After setting out the facts, her Honour then summarised the victim impact statements.

2. [58]

   In relation to all offenders, her Honour noted the following:

3. [59]

   The other two offenders were also Aboriginal and had dysfunctional childhoods as well. In that context, her Honour later noted the following:

4. [60]

   Her Honour then noted the applicant’s criminal history and stated:

5. [61]

   Ms Dombrowski’s report was also taken in account. In this report the applicant expressed remorse, which he had re-iterated in court by apologising to the victims of the offences. However, her Honour noted that his evidence in court had been that the offences were unplanned, which was contradicted by “the circumstantial evidence, the extensive telephone intercept, text message intercept material and agreed facts”.

6. [62]

   Her Honour subsequently addressed the applicant’s subjective circumstances in more detail. The applicant had given evidence that he had a “significant” substance abuse issue, drinking up to 25 standard drinks and using two to three points of methamphetamine daily. Later, she addressed this issue again, noting that:

7. [63]

   Her Honour noted that the applicant had been raised by his paternal grandmother in Coffs Harbour after his parents had failed to provide adequate care, although he denied abuse or neglect. Her Honour noted that both of his parents had been imprisoned at some stage in their lives.

8. [64]

   Her Honour went on to note that, after the age of 13, the applicant had been without a fixed residence, “basically [living] on the street or in juvenile detention”. Her assessment, on the basis of his grades at school and commencement of a TAFE course, was that he “has some prospects, if he can rehabilitate himself on release”. She noted that his first suicide attempt was at the age of 12 and that he had a history of paranoia and hallucinations, which were likely to do with his drug use. The psychological report had also noted that his exposure to violence, substances, offending and social marginalisation put him at risk for developing a personality disorder.

9. [65]

   As for the objective seriousness of the offences, her Honour had regard to the decision in Regina v Henry & Barber (1999) 46 NSWLR 346;[1999] NSWCCA 111 (“Henry”) noting that the subject offences fell “well above the Henry range”. She assessed them as falling “well into the mid-range of objective seriousness for offences of their kind”. By reference to the Henry guideline, her Honour noted that the weapons used included knives and poles, and that both the applicant and Mr Gray had limited criminal histories. It was noted that there was no actual violence but a very real threat of violence and the victims were vulnerable and have suffered ongoing fear.

10. [66]

    Her Honour noted that the pleas of guilty were limited by the “very strong case”. As for the question of youth, her Honour went on to observe that none of the offenders are “young offenders”, although the applicant came in close at 24 years of age.

11. [67]

    Her Honour noted that another difference between these offences and the Henry guideline was the fact that these offences were carefully planned and “effective”. Her Honour rejected the defence submission that they were “just a bunch of amateurs” and noted:

12. [68]

    Her Honour also had regard to the organisation of transport, clothing, weapons and disguises and the fact that they drove some considerable distance to the target premises where they waited and watched until close to closing time. The offences were spaced over a 14 month period and were carried out at different places to avoid police. The amount taken was substantial and the offenders were motivated by profit.

13. [69]

    Her Honour went on to consider the question of parity and observed:

14. [70]

    Her Honour was satisfied of remorse and found “to a limited degree” special circumstances”, on the basis of the need for ongoing supervision and that this was their first time in full-time custody.

15. [71]

    Mr Gray received an identical aggregate sentence to the applicant. Mr Hoskins received an aggregate sentence of 14 years and 6 months imprisonment with a non-parole period of 10 years.

Applicant’s submissions

1. [72]

   As noted above, Ground One was conceded.

2. [73]

   The applicant submitted, in relation to Ground Two, that the sentence was manifestly excessive, having regard to his “significantly deprived” upbringing. This ground relied on the principles enunciated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”), R v Fernando (1992) 76 A Crim R 58; R v Millwood [2012] NSWCCA 2. The applicant submitted that there was evidence accepted in this case that demonstrated the contribution of the applicant’s “deprived and dysfunctional” upbringing to his offending. This was in the form of Ms Dombrowski’s report. The applicant contrasted this with the sentencing judge’s finding extracted above at [56].

3. [74]

   The applicant further emphasised that his immaturity justified a lesser sentence, referring to R v Mills [1998] 4 VR 235 at 241; R v Hearne (2001) 124 A Crim R 451 at [27]; R v GDP (1991) 53 A Crim R 112; R v DM [2005] NSWCCA 181. The applicant also referenced the finding in BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 and submitted that it was erroneous for her Honour to find that the applicant was "close" to being a young offender but that she would not "strictly classify him as young”. Her Honour also differentiated the applicant and Mr Hoskins by referring to Mr Hoskins’ greater level of maturity, but did not significantly adjust the applicant’s sentence on account of this.

4. [75]

   Finally, the applicant submitted that her Honour’s starting point for these offences of 7 years imprisonment was substantially higher than that indicated in the guideline judgment of Henry. Such a high sentence was not justified, according to the applicant, as his subjective case mitigated the degree of planning involved and cash taken. Using Judicial Commission statistics, the applicant submitted that 6 years and 4 months for Count 1 was equal to the highest sentence recorded on the statistics. Additionally, in only 1% of cases recorded in the statistics was more than a 6 year indicative sentence imposed for a robbery offence.

5. [76]

   Finally, the applicant submitted that the substantial degree of accumulation implicit in the aggregate sentence had a crushing effect upon him given his youth, prior background and criminal history.

6. [77]

   As for Ground Three, the applicant submitted that his sentence was too high when compared with Mr Hoskins’ sentence. They were both sentenced for the same offences. He was a co-offender with the applicant and Mr Gray for two of the counts and he was sentenced for an additional robbery (the applicant was not sentenced for this offence). He also had two of the robbery conspiracies on a Form 1.

7. [78]

   The applicant submitted that there was an error in terms of parity because despite his dysfunctional subjective case, Mr Hoskins was older than the applicant, he had a more severe criminal history and he had more remote prospects of rehabilitation.

Crown submissions

1. [79]

   The Crown conceded Ground One for reasons provided below.

2. [80]

   As for Ground Two, the Crown submitted that there was no doubt that, as an experienced criminal law judge, the sentencing judge was well aware of the principles enunciated in Bugmy and took them into account. This was demonstrated by her Honour’s detailed summary of the background of each of the offenders, including the comments extracted above at [56]. The Crown submitted that while the sentencing judge did not refer to "moral culpability" directly, it is clear from a full and fair reading of the reasons on sentence that her Honour was satisfied that there was a connection between the applicant's background and his commission of the subject offences and that this was taken into account.

3. [81]

   In relation to the applicant’s age, it was submitted that the applicant had not advanced evidence that he lacked maturity. Furthermore, her Honour had acknowledged age as a factor that differentiated the applicant and Mr Hoskins.

4. [82]

   In terms of the applicant’s submissions about the indicative sentences, the Crown submitted that this Court should be cautious when comparing the undiscounted indicative sentences imposed in this case and the sentence range indicated by Henry. The Crown pointed out that the statistics cited by the applicant were of reduced utility as they related to sentences imposed by the District Court within a period of less than 9 months from 24 September 2018 until June 2019.

5. [83]

   The Crown also submitted that Count 1 was not less serious when compared to the other counts, as it involved (as all the offences did) targeting premises at closing time when it was likely that staff members were still inside. Additionally, Count 1 involved the theft of $32,815, which was substantially more than the proceeds of the Count 2 offence. It also carried a SNPP. Count 3 was also serious as it involved threats of violence and very substantial proceeds.

6. [84]

   In oral submissions, counsel for the Crown added that her Honour correctly took into account the “business-like manner” of the robbery and degree of planning. In relation to the submission that no-one was put in fear, the Crown emphasised that someone was present within the Wauchope Country Club at the time the applicant and his co-offenders broke in, and this person left.

7. [85]

   As for Ground Three, the Crown pointed out that Mr Hoskins’ aggregate sentence was 2 years and 6 months longer than that imposed on the applicant and an aggregate non-parole period that was two years longer. Further, Mr Hoskins had two offences taken into account on a Form 1. Given the fact that his prospects of rehabilitation were lower, his commission of the offence on conditional liberty and his age, the Crown submitted that the difference between the sentences was open to her Honour in the exercise of her discretion.

Consideration

1. [86]

   As McClellan CJ at CL observed in KT v R [2008] NSWCCA 51 at [22]:

2. [87]

   This principle is reflected in the Children (Criminal Proceedings) Act, which sets out the procedures and penalties in relation to the sentencing of children in the Children’s Court.

3. [88]

   Regrettably, it is not uncommon for adult offenders to come before this Court with criminal histories spanning back to when they were children. Such records can be before the court for different reasons. In the present case it was said to be relevant to show the applicant’s disadvantaged childhood, in other cases it may be relevant for other purposes of sentencing. When such records are tendered by the Crown it is important to be aware of the statutory provisions in the Children (Criminal Proceedings) Act which limit the circumstances in which matters on a child’s criminal history dealt with in the Children’s Court can be used against them when later being sentenced as an adult.

4. [89]

   Section 14 of the Act provides that:

5. [90]

   The practical effect of s 14 is that if a court has previously found that a child aged less than 16 years dealt with in the Children’s Court to be guilty of an offence, no conviction is to be entered. If the child is over the age of 16 years the Children’s Court has a discretion as to whether to enter a conviction.

6. [91]

   Section 15 of the Act then provides that:

7. [92]

   The practical effect of s 15 is that if a child is found guilty in the Children’s Court but without any conviction entered and the offender is not subject to any other judicially-imposed punishment for a period of two years then the finding of guilt is not admissible in any subsequent criminal proceedings.

8. [93]

   The applicant’s criminal history discloses that he was first dealt with for criminal offending in the Children’s Court when he was 14 years of age. I have extracted his Children’s Court history above at [34]-[40]. In addition, an affidavit affirmed by Philippa Winston on 3 June 2020 was before the Court annexing various documents from the Children’s Court. These documents confirm that no conviction was or could have been entered in relation to all of the offences committed before he turned 16. This includes the offence of aggravated break, enter and steal for which he was placed on a control order.

9. [94]

   Furthermore, the 6 month bond the applicant received for resisting a police officer expired on 13 January 2015. He was not charged with the current offences until 8 May 2017 more than two years after his last court order expired.

10. [95]

    Although the relevance of ss 14 and 15 of the Act was brought to the attention of the sentencing judge (extracted above at [54]), her Honour went on to refer to some of these matters as convictions in her Sentencing Remarks when she observed that the applicant had a “record” for offences, including “a serious offence of breaking and entering” as a juvenile. The applicant was not convicted of these offences. They were not admissible in the sentence proceedings. A similar error was made in Siddiqi v Regina (Commonwealth) [2015] NSWCCA 169.

11. [96]

    The Crown conceded that error is established under this ground. It further accepted that the proper inquiry is not whether, as a matter of fact, the error influenced the outcome. As Basten JA explained in Newman (a pseudonym) v R [2019] NSWCCA 157 (with Hamill and Lonergan JJ agreeing) at [11], an applicant does not need to establish that an error has had an actual effect on the sentence imposed; only that it had the “capacity” to do so: see also Ibbotson (a pseudonym) v R [2020] NSWCCA 92.

12. [97]

    I am satisfied that the Crown concession was properly made and should be accepted. I would uphold Ground One.

13. [98]

    In light of the need to exercise the sentencing discretion afresh, I do not consider it necessary to consider Ground Two, which alleged latent rather than patent error. Despite this, I will consider the respective submissions in relation to manifest excess as part of the re-sentencing process.

14. [99]

    As Gibbs CJ observed in Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 at 609:

15. [100]

    His Honour went on to observe that:

16. [101]

    Mason J observed the following in Lowe v The Queen at 610:

17. [102]

    In Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 Dawson and Gaudron JJ later observed at 301:

18. [103]

    As Gummow J observed in Postiglione v The Queen at 323, the application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The test is an objective one.

19. [104]

    In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 French CJ, Crennan and Kiefel JJ observed at [30] that Lowe v The Queen and Postiglione v The Queen were concerned with the application of the “parity principle” to persons charged with the same offences arising out of the same criminal conduct or enterprise. In that context their Honours went on to observe:

20. [105]

    This Court has stated on a number of occasions that, where possible, the same sentencing judge should sentence all co-offenders. As Button J observed in Huckstadt v R [2016] NSWCCA 22 at [90] (Johnson and Fagan JJ in agreement), when the same judge hears both matters at the same time, “…[he or she] will be in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way”: see also Usher v R [2016] NSWCCA 276 at [71]-[72].

21. [106]

    With these principles in mind, I turn to consider whether it could be said that the applicant has a justifiable sense of grievance given the aggregate sentences imposed on Mr Hoskins.

22. [107]

    It could not be said that her Honour ignored the question of parity. On the contrary, she specifically had regard to it. Her Honour found that the objective offending in relation to each of the offenders was very similar in terms of their roles and their involvement. No issue is taken with that finding in this court.

23. [108]

    Her Honour went on to observe that there was a clear difference in the respective subjective circumstances between Mr Hoskins, on the one hand, and the applicant and Mr Gray, on the other. Her Honour was satisfied that Mr Hoskins was significantly older with a greater degree of maturity and greater experience in carrying out offences of this magnitude. Nor did his criminal record assist him. Although her Honour found that there were many similarities in terms of the co-offenders’ respective dysfunctional upbringings, she made stronger findings in relation to Mr Hoskins than the applicant and/or Mr Gray.

24. [109]

    The applicant received the same sentence as Mr Gray. The only difference between Mr Gray and the applicant is that the applicant also had an additional offence taken into account on a Form 1. No complaint is made in relation to the application of the parity principle insofar as Mr Gray is concerned.

25. [110]

    The complaint as to disparity concerns the sentence imposed on Mr Hoskins. Although the applicant and Mr Hoskins were each sentenced in respect of a robbery in company offence for which the other was not, it is not suggested on behalf of the applicant that the character and seriousness of these offences were anything other than similar. The nub of this ground turned on the differences between the subjective factors as between the two offenders.

26. [111]

    Her Honour noted the differences between the subjective factors relevant to the sentencing of both Mr Hoskins of the applicant. It was noted that Mr Hoskins was the oldest of the offenders, being 35 to 36 years of age at the time of the offending. Her Honour also noted that, although Mr Gray and the applicant had no extensive criminal record as adults, Mr Hoskins had what was described by the sentencing judge as an “atrocious criminal record” and he committed his offences whilst on conditional liberty. Her Honour described his record as follows:

27. [112]

    Although her Honour was satisfied that all three offenders had deprived childhoods, in setting out their respective cases it is evident that her Honour considered Mr Hoskins to be one of profound deprivation. Her Honour noted that Mr Hoskins was born into an environment of cannabis cultivation and firearms in the home. Family and Community Services investigated his home life after he took several bullets to school to show his friends. He was often unable to sleep in his own bedroom at night because large quantities of cannabis were drying there. His mother and aunt always gave him any cannabis he wanted.

28. [113]

    Mr Hoskins was made a ward of the state and placed in foster care at the age of eight due to his mother’s alcoholism and neglect. Following his removal, he built animosity towards authority blaming the State for removing him from his home. Her Honour noted the evidence that the applicant suffered genuine distress as a child because of feelings of abandonment and rejection. Although he described his foster family as “nice”, he did not form a relationship with his foster father who was “not averse to using physical discipline”. He ran away from his foster home at the age of 12.

29. [114]

    Mr Hoskins’ education was severely disrupted. He attending four different primary schools and failed to develop any stable friendships. At one stage, he physically assaulted a teacher. He only lasted two weeks in High School before he was expelled. From the age of 12 or 13, he had significant substance abuse problems including the fact that he would regularly blackout from his drug use. Significantly, his deficits in executive functioning are described as worse than 99% of his peer group. As her Honour observed, he is at risk of becoming institutionalised.

30. [115]

    Her Honour found that Mr Hoskins’ upbringing was “rather more dysfunctional” than his co-offenders. Her Honour also found that his prospects of rehabilitation were “somewhat more remote” than his younger co-offenders.

31. [116]

    It was submitted on behalf of the applicant that there should have been a greater disparity between the aggregate sentence imposed on the applicant and that imposed on Mr Hoskins given that Hoskins was no longer a young man, had a much worse criminal history and had more remote prospects of rehabilitation.

32. [117]

    I have given consideration to the matters identified on behalf of the applicant to support his contention that he should have received a sentence significantly less than Mr Hoskins. Her Honour identified the factors relevant to the applicant’s sentence, discussed their significance and made a value judgment as to what was the appropriate sentence given all the factors of the case. As the High Court confirmed in Markarian v The Queen (2005) 228 CLR 357 at 377; [2005] HCA 25 at [51] and Muldrock v The Queen (2011) 244 CLR 120 at 131; [2011] HCA 39 at [26], this is the proper approach to take. In applying a process of instinctive synthesis her Honour had regard to Mr Hoskins’ significant deficits in executive functioning, his risk of becoming institutionalised, his “more” dysfunctional background, his greater criminal history, his offending on conditional liberty, his age, and arrived at the sentence she did.

33. [118]

    I am satisfied that the differences between the sentence imposed on the applicant and that imposed on Mr Hoskins are explicable by the different subjective features relevant to each offender. It is to be accepted that some of Mr Hoskins’ subjective factors pulled in different directions. Despite this, I am not satisfied that any error is disclosed in the manner in which her Honour dealt with the issue of parity. That is, I am not satisfied that the applicant has established that, viewed objectively, he has a justifiable sense of grievance in regard to the sentence imposed on himself compared with that imposed on Mr Hoskins.

34. [119]

    I would dismiss Ground Three.

Re-sentence

1. [120]

   As noted above, since error has been found under Ground One, it is necessary for this Court to exercise its own independent sentencing discretion for the purpose of determining whether a lesser sentence should be imposed under s 6(3) Criminal Appeal Act 1912 (NSW): Kentwell v The Queen (2014) 252 CLR 601 at 618; [2014] HCA 37 at [43].

2. [121]

   A number of affidavits were tendered to be relied upon in the event of re-sentence. None of the deponents were required for cross-examination and no objections were made to any parts of the affidavits.

3. [122]

   An affidavit from Philippa Winston, solicitor at the ODPP, affirmed 11 June 2020, annexed misconduct reports in relation to the applicant’s behaviour in custody since he was sentenced. Those documents reveal two misconduct incidents. On 3 January 2020, the applicant engaged in physical combat with another prisoner and on 26 January 2020 he was disciplined for trying to manufacture alcohol in his cell through the use of fermented fruit.

4. [123]

   The applicant’s solicitor, Caitlin Akthar, affirmed an affidavit on 5 June 2020 annexing medical reports from Justice Health. These reports indicated that on 11 January 2020 he reported as dizzy, light-headed and paranoid and sought psychiatric assistance at that time.

5. [124]

   The applicant swore two affidavits. In his first affidavit sworn on 5 June 2020 he explained that he had participated in educational programs and had already completed his Certificate I in Skills for Vocational Pathways and was currently doing his Certificate II in that area. He was also trying to learn about his culture and language. As for his health, he explained that his medication for schizophrenia was making him put on weight. This increased weight made him a risk for diabetes, which is a significant problem in the Aboriginal community. He went off his medication but later felt dizzy, had trouble breathing and thought he was having a heart attack. Since then he has been given different food and has been put back on olanzapine. He stated that he is now “doing well” with his symptoms.

6. [125]

   The applicant further explained that he is presently being treated properly for his mental health and is no longer taking drugs. This means that he has had to deal with some of his childhood memories. He now recalls an uncle sexually abusing him on a beach near Coffs Harbour when he was a child. He decided to report this to police but discovered that his uncle had died. He realises that he had previously blocked out those memories by taking drugs.

7. [126]

   The applicant also explained that since COVID-19 he has had no personal visits as they are not allowed. He cannot undertake “video chats” with his family because they do not have the devices to do so. He has had no visits since March. As for his future plans, he proposes to do a personal training course at TAFE and get involved in cultural dancing and language.

8. [127]

   In a second affidavit sworn on the day of the hearing the applicant responded to the conduct charges referred to in Ms Winston’s affidavit. In relation to the fight on 3 January 2020 he explained that the other person started it and he acted in self-defence. He also noted that he was feeling ill that day and later ended up being admitted to the hospital. In relation to the alcohol manufacture charge, it was noted that that occurred on “invasion day” and he did not want to think about that. His new medication had not “kicked in” and he felt overwhelmed. He wanted to get drunk and forget. He noted he has not been in any difficulty since that time.

9. [128]

   In circumstances where none of this material was challenged, the Court accepts it and will have regard to it in re-sentencing the applicant.

10. [129]

    It was not suggested that I would make any different findings to her Honour in relation to the objective seriousness of the offences. Her Honour found the offending on all counts to be mid-range and well above the Henry guideline. I would sentence the applicant based on the same findings. It was submitted on behalf of the applicant that, even accepting these findings, regard should be had to the fact that there was no violence involved in the offending, apart from one of the offenders grabbing a person by the shirt during the incident comprising Count 2.

11. [130]

    Although I accept that the violence involved was threatened rather than actual, the threats were very real. The experience of the Court is that vulnerable people working late in hotels and clubs can suffer significant ongoing trauma as a result of such robberies. This case is no different. Her Honour set out the contents of the three victim impact statements made in this matter. Her Honour did not have regard to them in the manner permitted by s 30E(3) of the Sentencing Act and I do not propose to do so either. The fact that it is common for robbery victims to react in this way is reflected in the maximum penalty for this offence. As Spigelman CJ stated in Henry at [99]:

12. [131]

    The thrust of the applicant’s submissions on re-sentence is that this Court would place significant weight on four mitigating factors which would lead to the imposition of a lesser sentence than that imposed by the sentencing judge. Those four factors are: his age, his childhood of dysfunction, his mental condition and his criminal and custodial history to date.

13. [132]

    As for his age, the applicant placed reliance on the decision in BP v R where Hodgson JA observed the following at [5] as to when an offender can be described as a “young” offender:

14. [133]

    It is to be accepted that young men develop emotional maturity and impulse control at different ages; some prior to reaching adulthood and some later. But there was no evidence placed before the court as to the applicant’s maturity for his age or otherwise. Although the report of Ms Dombrowski was helpful in setting out the applicant’s history and current diagnosis, it was not suggested therein that he was immature for his age. As Beech-Jones J recently observed in Nabalarua v R [2020] NSWCCA 68 at [55]-[56] (Simpson AJA and N Adams J agreeing):

15. [134]

    In re-sentencing the applicant, I have had regard to the fact that the applicant was the youngest of the offenders at 23-24 years old but I would not ameliorate the sentence significantly on the basis of his youth.

16. [135]

    It was also submitted that greater weight should be given to the Bugmy factors on re-sentence. It was not submitted that the sentencing judge erred in the application of the principles of Bugmy in this case. No ground of appeal was brought on such a basis. Rather, it was submitted that greater weight should have been placed on it as a possible reason for the alleged manifest excess. I will consider that submission further below.

17. [136]

    I have summarised the applicant’s and the Crown’s submissions on the application of Bugmy to the applicant’s sentence above at [71] and [78].

18. [137]

    In Bugmy the High Court considered the relevance of an offender’s deprived background to offending as an adult. On that issue the Court observed the following at [44] (footnote omitted):

19. [138]

    Following from this decision it is settled that the effects of “profound childhood deprivation” are to be given “full weight” in every sentencing decision. As Simpson AJA noted in R v Irwin [2019] NSWCCA 133 at [3]: “[a]pplication of the Bugmy principles is not discretionary”. Hoeben CJ at CL had earlier commented in Ingrey v R [2016] NSWCCA 31 that consideration of the Bugmy factors is not optional, although once the factors are taken into account, countervailing factors such as the protection of the community may reduce their weight (at [35]).

20. [139]

    Although Bugmy factors must be given “full weight” in every sentencing decision, this does not mean that they need to be given the same weight in every case. The extent to which the applicant’s moral culpability is reduced will vary in each case and sometimes it will not be reduced at all but instead taken into account in other ways. The purposes of sentencing are numerous and often difficult to apply when the objective and subjective factors seem to point in different directions, as the High Court observed in Bugmy at [44]. Although these purposes are well known, they warrant reproduction here.

21. [140]

    Section 3A of the Sentencing Act provides that:

22. [141]

    If there is a basis for a finding that an offender’s moral culpability is reduced then the purpose of general deterrence (s3A(b)) may be of less significance, although the need to protect the community may be higher (s 3A(c)). Each case will turn on its own facts.

23. [142]

    In Christopher Ross v R [2019] NSWCCA 314, Basten JA (with whom Macfarlan JA and Campbell J agreed) considered the Bugmy principles in the context of an offender who had been sentenced for a domestic violence offence. Complaint was made that the trial judge had failed to give sufficient weight to the applicant’s subjective factors. The appeal was dismissed. After referring to the decisions in Bugmy, Fernando and Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, Basten JA made the following observation at [44]-[45] (footnotes omitted):

24. [143]

    This passage by his Honour concerned the application of Bugmy principles in the context of unpremeditated crimes of violence which arise out of “prolonged and widespread social disadvantage”. A number of other decisions of this Court have also held that moral culpability will not usually be reduced in cases where careful planning is involved, such as cultivation and drug supply matters. In Taysavang v R; Lee v R [2017] NSWCCA 146, this Court (Simpson JA, with whom McCallum J and Fagan J agreed) considered a ground of appeal alleging that the sentencing judge had erred in failing to reduce the moral culpability of the offender because of his deprived upbringing. The applicant was being sentenced for selling methamphetamine. The sentencing judge had made the finding that:

25. [144]

    The Court rejected the argument that there was any error in such a finding and went on to state the following at [42]-[43]:

26. [145]

    A similar approach was taken by this Court in Crowley v R [2017] NSWCCA 99. In that matter, the applicant appealed against his sentence for the cultivation of not less than the commercial quantity of cannabis. The asserted error in the sentencing process was that the sentencing judge had failed to take into account his childhood history of alcohol abuse and violence, his lack of formal education, and a long record of convictions and incarceration, including for offences of violence. Adamson J (Johnson and Campbell JJ agreeing) rejected this submission, distinguishing Bugmy as a case which involved acts that were “impulsive, violent and against [the offender’s] interest”. Her Honour stated the following at [43]:

27. [146]

    At [44], her Honour further noted:

28. [147]

    Similarly, in Katsis v R [2018] NSWCCA 9, Hoeben CJ at CL observed the following at [105]:

29. [148]

    These decisions suggest that a “link” needs to be established between the childhood deprivation and the offending behaviour in order for the Bugmy principles to apply. In Perkins v R [2018] NSWCCA 62, Hoeben CJ at CL stated the following at [42]:

30. [149]

    The other two members of the Court in Perkins v R did not agree. White JA was of the view that Bugmy did “not provide a clear answer” to the question of whether causation needed to be established as between the circumstances of deprivation and the offending. After referring to Fernando, his Honour stated at [77]:

31. [150]

    White JA concluded that the High Court did not lay down requirement for a causative link, with which Fullerton J agreed (at [100]).

32. [151]

    In Judge v R [2018] NSWCCA 203, White JA made similar findings at [30]-[32] (with which Bellew and Wilson JJ agreed). In that decision this Court declined to find error arising from the sentencing judge’s refusal to find that the applicant’s dysfunctional upbringing was an explanation for his offending behaviour. The Court was satisfied that the sentencing judge had had regard to the applicant’s dysfunctional childhood but that did not mean that it necessarily meant his moral culpability was reduced. In that context, White JA observed at [31]:

33. [152]

    The fact that a causal link may not be needed in order to have regard to Bugmy factors was endorsed in R v Irwin [2019] NSWCCA 133. Walton J noted at [116] that:

34. [153]

    Having regard to these principles, it seems to me that although the effects of childhood deprivation are to be given full weight in every sentencing decision, that does not mean that moral culpability must be reduced in every case. Full weight can be given to such a childhood in other ways as part of the process of instinctive synthesis. Although a causal link may not be required, it also seems to be that if such a link exists then inevitably there will be a reduction in an offender’s moral culpability: Kliendienst v R [2020] NSWCCA 98. On the other hand, the absence of such a link does not mean that the Court does not give full weight to a childhood of profound deprivation if that is established on the evidence.

35. [154]

    I am satisfied that the applicant had a childhood of profound deprivation. In addition to the material before the sentencing judge, there is now further material before the court to show that the applicant was the victim of child sexual assault. Although not put in these terms, that might explain not only his recourse to drugs at a young age but also his attempted suicide by hanging at the age of 12.

36. [155]

    The applicant’s mental health issues also seem to arise from his unfortunate childhood. He was assessed as an intelligent and articulate man by Ms Dombrowski. His mental health issues arise from drug psychosis (self-medicating) and, as Ms Dombrowski observed, he is at risk of the developing a personality disorder (Cluster B (Dramatic/Erratic)). Ms Dombrowski put it in these terms:

37. [156]

    Since being dealt with in the Children’s Court it is to be accepted that the applicant had no significant criminal history, is an adult and that this is his first time in adult custody. I would not have regard to his Children’s Court record in this regard. This means that he came before the Court with a very limited criminal history. There was no evidence of any drug charges in custody since being sentenced consistent with his vow to stay off the drugs. His prospects of rehabilitation remain reasonable.

38. [157]

    I am satisfied he is remorseful and I too would find special circumstances for the same reasons as her Honour. I would allow for a slightly greater degree of notional concurrence than her Honour. I would apply the 10% discount to the indicative sentences but have rounded slightly to avoid figures comprising years, months and days.

39. [158]

    As for his mental health, the evidence before her Honour was that although the applicant had suffered from drug-induced psychosis in the past, he had come off medication for that since being in custody and he did not report any ongoing issues to her. The additional evidence suggests that he has had a relapse but he describes receiving suitable metal health assistance from Justice Health.

40. [159]

    As is often the case when exercising the sentencing discretion, there are factors pulling in different directions in this matter. The criminality involved is very serious. The applicant participated in an ongoing criminal enterprise in company with weapons putting vulnerable people in fear and obtaining large amounts of money. On the other hand, the applicant has had a deprived childhood, does not have a significant criminal record before these serious offences, has mental health issues, is an intelligent man with reasonable prospects of rehabilitation and is remorseful.

41. [160]

    I have had regard to all of these matters and have arrived at an aggregate sentence which is lower than that imposed on him by the sentencing judge.

ORDERS

1. [161]

   I would propose the following orders:

   1. (1)

      Leave to appeal is granted.

   2. (2)

      The appeal is allowed.

   3. (3)

      The sentence imposed on the applicant in the District Court on 27 May 2019 is quashed. In lieu thereof the following aggregate sentence is imposed under s 53A of the Crimes (Sentencing Procedure Act) 1999 (NSW):

   4. (4)

      Pursuant to s 53A(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the indicative sentences are: