Coleman v R

1. [1]

   MITCHELMORE JA: The applicant, Albert Coleman, seeks leave to appeal from the sentence imposed by Neilson DCJ, on 8 November 2024, for the following four offences to which he pleaded guilty:

   1. (1)

      Sequence 2: use an offensive weapon to prevent or hinder lawful apprehension, contrary to s 33B(1)(a) of the Crimes Act 1900 (NSW) (maximum penalty 12 years imprisonment);

   2. (2)

      Sequence 14: aggravated break and enter into a dwelling and commit a serious indictable offence, namely larceny, contrary to s 112(2) of the Crimes Act (maximum penalty 20 years imprisonment, standard non-parole period 5 years imprisonment);

   3. (3)

      Sequence 10: drive a motor vehicle on a road furiously, recklessly or at a speed or in a manner dangerous to the public, contrary to s 117(2) of the Road Transport Act 2013 (NSW) (maximum penalty 9 months imprisonment or 20 penalty units); and

   4. (4)

      Sequence 12: have a face blackened or otherwise disguised with intent to commit an indictable offence, namely break, enter and steal a motor vehicle, contrary to s 114(1)(c) of the Crimes Act (maximum penalty 7 years imprisonment).

2. [2]

   Sequences 10 and 12 were charged as related offences under s 166 of the Criminal Procedure Act 1986 (NSW).

3. [3]

   Neilson DCJ imposed an aggregate sentence of 4 years imprisonment with a non-parole period of 2 years. The applicant advances three grounds of appeal against this sentence:

   1. (1)

      The sentencing judge erred by failing to make findings in relation to the applicant’s remorse and prospects of rehabilitation.

   2. (2)

      In the alternative to ground 1, the sentencing judge erred in failing to give reasons for making no findings as to the applicant’s remorse and prospects of rehabilitation.

   3. (3)

      The sentence was manifestly excessive.

4. [4]

   For the reasons that follow, I would grant the applicant leave to appeal and dismiss the appeal.

Agreed facts on sentence

1. [5]

   The sentencing judge proceeded on the basis of a statement of agreed facts that outlined the conduct constituting the offences.

2. [6]

   On 14 October 2023 at around 1:40 am, the applicant was sitting in the passenger seat of a Toyota Kluger that was travelling along Kings Road, Vaucluse. Police activated the warning lights and siren in their vehicle. The Kluger failed to stop.

3. [7]

   The police vehicle commenced a pursuit of the Kluger. The applicant threw a red fire extinguisher from the passenger-side window at the pursuing police vehicle, followed by several pieces of brick. At this time, the Kluger was driving at an estimated speed of 100 km/h on the wrong side of the road. Police terminated the pursuit. The applicant threw a piece of brick at another police vehicle, which connected with the C-pillar of that vehicle and caused damage.

4. [8]

   A recording that was subsequently located on the applicant’s mobile phone showed him throwing bricks from the moving vehicle at pursuing police. A DNA swab taken from the handle of the fire extinguisher and the pieces of brick returned a match for the applicant.

5. [9]

   Around 2:20 am on 31 October 2023, the applicant broke and entered a home in Hunters Hill, NSW by opening an unlocked glass sliding door. At the time, the occupants of the premises were present and asleep.

6. [10]

   While in the house, the applicant stole: a laptop and dental scanner, a Rolex watch, a black YSL handbag containing eye cream, sunscreen, bank cards, and a driver’s licence; and the keys to a black Bentley Bentayga. The applicant then stole the Bentley.

7. [11]

   At about 2:20 am, one of the occupants of the premises heard heavy footsteps outside her bedroom window and then heard a car engine start. She got out of bed and walked into the dining room, where she saw that the back door was being held open by a bucket. She noticed that the car keys were missing and woke her husband up, shouting, “Where’s your car keys?”. Her husband searched for the car keys and then noticed that the Bentley was no longer parked in the driveway.

8. [12]

   The aggravating factor was that the applicant knew that there were persons present in the house when he committed the offence: Crimes Act, s 105A(1).

9. [13]

   At about 3:25 am that same night, the black Bentley Bentayga was recorded on a closed-circuit television camera attending a BP service station at West Ryde. The applicant was seated in the driver’s seat wearing a cream-coloured balaclava, and a person in the front passenger seat was wearing a black-coloured balaclava. The indictable offence for the purpose of this offence was the aggravated break and enter charged as sequence 14.

10. [14]

    At 3:35 am on 31 October 2023, a speed camera located at the M4 Western Motorway on-ramp (Eastbound) at Silverwater Road, Silverwater, captured the Bentley travelling at a speed of 194 km/h. The signposted speed zone was 70 km/h. A recording on the applicant’s phone that was taken at that time and date depicted him sitting in the driver’s seat of the Bentley and wearing the stolen Rolex.

11. [15]

    Police saw the stolen Bentley on 1 November 2023 and notified the New South Wales Police Force Aviation Command (PolAir). The vehicle was located shortly thereafter. The applicant was apprehended nearby, at which time he was cautioned and arrested, and his mobile phone was seized. On examination of the applicant’s phone, a screenshot was located depicting directions to the street in Hunters Hill where the aggravated break and enter offence occurred. The Cellebrite download of the phone also recorded that it connected to the Bluetooth in the Bentley at 2:23 am. Event Based Monitoring conducted on the phone also located the phone in Hunters Hill at the time of the aggravated break and enter.

12. [16]

    The applicant declined to participate in an electronically recorded interview. When an officer asked the applicant where the watch was, he replied, “I sold it already”. None of the property stolen from the Hunters Hill premises was recovered other than the Bentley.

The sentencing judge’s reasons for sentence

1. [17]

   After setting out the facts of the offending, the sentencing judge found that sequence 2 (use of offensive weapon to avoid apprehension) was in the mid-range of objective seriousness for an offence of that kind. The fact that the applicant achieved the intended purpose of avoiding apprehension contributed to this assessment.

2. [18]

   In relation to the events of 31 October 2023, his Honour made no express finding as to the objective seriousness of sequence 14 (aggravated break and enter and commit an indictable offence). His Honour noted that no evidence was adduced as to the value of the items stolen. His Honour found that sequence 10 (driving furiously, recklessly, or at a speed or in a manner dangerous to the public) fell in the mid-range of such offences due to the high speed involved, which exceeded the posted limit by 124 km/h. His Honour found that the sequence 12 offence (face blackened or disguised with intent to commit an indictable offence) was at the bottom of the range for such offences.

3. [19]

   In terms of the applicant’s personal circumstances, the applicant tendered two reports of a registered psychologist, Vanessa Edwige, dated 28 May 2024 (in relation to other offending) and 3 November 2024 (in relation to the index offending). The sentencing judge set out a lengthy extract from Ms Edwige’s report of 28 May 2024, which included the following matters:

   1. (1)

      The applicant was 20 years old at the time of the report and is an Aboriginal man.

   2. (2)

      The applicant is the only biological child of his parents, but he has siblings from his parents’ previous and subsequent relationships.

   3. (3)

      The applicant lived in Kurri Kurri and Cessnock until he was about 10 years old. His parents separated when he was young.

   4. (4)

      The applicant’s mother misused drugs and alcohol before the applicant was born, resulting in her loss of custody of previous children. However, she rehabilitated herself and regained custody of those children, and she did not misuse substances when raising the applicant.

   5. (5)

      The applicant’s father misused drugs and alcohol throughout the applicant’s life. He described his father as “[a]lways in and out of gaol”.

   6. (6)

      The applicant lived with his maternal grandfather, mother, older brother and older sister in Cessnock. His older brother had substance abuse issues. The applicant subsequently lived in Aboriginal housing in Doonside.

   7. (7)

      The applicant began getting into trouble with the police and using methamphetamine at age 11, around which time he began stealing from houses. He began using heroin at age 16, ceasing upon his most recent period of incarceration.

   8. (8)

      The applicant spent time in several juvenile detention centres, commencing from when he was 13 years old. While in those facilities, he was abused on a number of occasions.

   9. (9)

      The applicant commenced a serious relationship at 13 years of age and he remains with that partner, and they have three children.

   10. (10)

       The applicant acknowledged that he needed to support his family and “get off the drugs” in order to help raise his children.

4. [20]

   The sentencing judge observed that he had spoken with the applicant in the course of the sentencing hearing, and his Honour considered that the applicant’s ongoing relationship with his partner and his children was the most meaningful thing for him in his life.

5. [21]

   The applicant was diagnosed with ADHD as a young child. He was prescribed Ritalin between the ages of 4 and 10 years old, after which he took Concerta until he was 13 years old. He confirmed to the sentencing judge that he continued on the Buvidal treatment program at the time of sentence. The applicant was also diagnosed as experiencing early developmental delay as a young child. Despite a family history, the applicant did not show symptoms of schizophrenia.

6. [22]

   The applicant had a history of angry outbursts since childhood, which was consistent with his behaviour in custody. His full-scale IQ was in the low-average range of intelligence, with verbal comprehension in the borderline range. The sentencing judge considered it clear that the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”) applied to the applicant on the basis of his childhood exposure to substance abuse, parental incarceration, child abuse, and interrupted schooling. Ms Edwige considered that the applicant had experienced trauma as a child and adolescent, and diagnosed the applicant as having substance use disorder, post-traumatic stress disorder, and ongoing ADHD.

7. [23]

   The sentencing judge considered that Ms Edwige’s observations about the risks of prolonged incarceration led to a conclusion that the applicant ran “a real risk of institutionalisation” and that a shorter custodial sentence would be better for his development. His Honour noted the treatment plan that Ms Edwige had provided and considered it relevant to his role as sentencing judge to note her opinion that the applicant required a supportive, psychologically safe therapeutic environment to address his history of disadvantage, as well as the support of caseworkers to assist with the development of skills and self-care.

8. [24]

   Specifically in relation to Ms Edwige’s second report, the sentencing judge extracted what the applicant was recorded to have said to her about the present offending:

9. [25]

   His Honour took into account the applicant’s childhood criminal history as a matter suggesting that he had “some attitude of ‘disobedience of the law’”, but did not rely on that history as aggravating the sentence. His Honour also considered that it would be inappropriate to use evidence of the applicant’s childhood offending, which was so closely related to addictions he had developed at the age of ten or eleven, to indicate a more severe sentence on the basis of retribution, deterrence, and protection of society.

10. [26]

    His Honour did take into account offences the applicant committed on 23 November 2021, by which time he was 18 years old, being aggravated burglary in company (infliction of actual bodily harm) and robbery in company and driving a conveyance without the consent of the owner. The applicant was sentenced for those offences to 3 years imprisonment with a non-parole period of 18 months, and he was released on 23 June 2023. His Honour also took into account an affray offence that the applicant committed before the offences for which he was sentenced in the present matter.

11. [27]

    His Honour took into account that at the time of the present offending, the applicant was on parole for the 2021 offences, and on bail for the affray offence. The sentence of five months imprisonment for the affray offence overlapped with the period of custody following his arrest for the present offending and expired on 29 March 2024. The sentencing judge thus accepted that the appropriate commencement date for the present sentence was sometime between 1 November 2023 and 30 March 2024. His Honour ultimately determined that date to be 1 February 2024.

12. [28]

    The sentencing judge referred to the JIRS sentencing statistics for each of the offences, before recording the following indicative sentences:

    1. (1)

       For sequence 2, his Honour determined an indicative sentence of 24 months imprisonment, reduced to 18 months for the applicant’s early plea.

    2. (2)

       For sequence 14, his Honour determined an indicative sentence of 32 months imprisonment, reduced to 24 months for the plea, with a non-parole period of 18 months.

    3. (3)

       For sequence 10, his Honour indicated a sentence of 8 months imprisonment, discounted by reason of the plea to 6 months.

    4. (4)

       For sequence 12, his Honour indicated a head sentence of 12 months, discounted to 9 months for the plea.

13. [29]

    The sentencing judge noted that the sum of the indicative head sentences was 4 years and 9 months imprisonment. His Honour considered that an appropriate aggregate sentence was 4 years imprisonment. Although his Honour noted that this would ordinarily lead to a non-parole period of 3 years, his Honour imposed a non-parole period of 2 years, having found special circumstances. The sentence commenced on 1 February 2024 and expires on 1 February 2028, with the non-parole period to expire on 1 February 2026.

Grounds 1 and 2: the sentencing judge erred in failing to make findings in relation to remorse and rehabilitation or, alternatively, failed to give reasons

1. [30]

   By ground 1, the applicant contended that the sentencing judge erred by failing to make findings in relation to his remorse and prospects of rehabilitation. Ground 2, which the applicant advanced in the alternative to ground 1, alleged that the sentencing judge erred in failing to give reasons.

2. [31]

   It has long been accepted that it is not ordinarily the function of a sentencing judge to address all possible sentencing considerations without the assistance and submissions of the parties: Zreika v R [2012] NSWCCA 44; 223 A Crim R 460. Rather, a sentencing judge is required to consider and decide the issues “that arise in the proceedings before them”: Meoli v R [2021] NSWCCA 213 at [42] (Simpson AJA, Bathurst CJ agreeing) and at [59] (Bellew J).

3. [32]

   Similarly, the High Court has explained in relation to reasons, in DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [32]-[33], that not every omitted fact, finding or consideration will ground a successful appeal. Kiefel CJ, Keane and Edelman JJ observed at [33]:

4. [33]

   Accordingly, it is necessary to examine what was put to the sentencing judge on the mitigating factors on which the applicant relied on the appeal, and his Honour’s decision.

5. [34]

   Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) provides that remorse shown by the offender is to be taken into account on sentence as a mitigating factor, but only if the offender provides evidence that they have taken responsibility for their actions and they have acknowledged any injury, loss or damage caused by their actions or made reparation for such injury, loss or damage.

6. [35]

   The applicant submitted that the material in Ms Edwige’s reports, which were admitted without objection, in addition to his pleas, engaged s 21A(3)(i) of the Sentencing Procedure Act such that the sentencing judge was required to consider and give weight to that factor, or give reasons for not doing so. Specifically, the applicant relied on the passage from Ms Edwige’s report that I have extracted at [24] above, in which he was recorded to have said that he felt sorry for the people he robbed. That passage was extracted in the written submissions on behalf of the applicant on sentence, which the applicant also relied on in support of this ground. The written submissions stated in this context that the Court “could find that Mr Coleman has expressed some remorse and insight into the offending”. However, no reference was made in the submissions to s 21A(3)(i) of the Sentencing Procedure Act, by contrast with the express references to the factors in s 21A(3)(h) and s 21A(3)(m). The Crown’s written submissions on sentence referred to s 21A(3)(m) as the only mitigating factor that was engaged.

7. [36]

   During the proceedings on sentence, neither the applicant nor the Crown referred to remorse. At the outset of the hearing, the applicant’s then-counsel submitted that the applicant and the Crown were largely in agreement, save for the application of s 21A(2)(d) of the Sentencing Procedure Act. As the Crown submitted on the appeal, these circumstances distinguished the present case from the circumstances in Koosmen v R [2025] NSWCCA 122 (“Koosmen”) and Pauls v R [2024] NSWCCA 123 (Pauls), on which the applicant relied. The parties in those cases were diametrically opposed on the relevant issues, such that, as Yehia J said in Koosman, “clear and transparent resolution” of those issues was required: at [109]-[110].

8. [37]

   In this Court, the applicant suggested that the issue of remorse was addressed before the sentencing judge “with a light touch”. Nonetheless, counsel submitted that what was put was sufficient to raise the consideration in s 21A(3)(i) so as to require his Honour to address it. I do not accept that submission. Having regard to the evidence and submissions that were made to the sentencing judge, his Honour was entitled to proceed on the basis that s 21A(3)(i) was not engaged; and his Honour was not required specifically to make express findings as to its application or to give reasons for not doing so.

9. [38]

   Section 21A(3)(h) provides that the offender having “good prospects of rehabilitation, whether by reason of the offender’s age or otherwise” is also to be taken into account where relevant and known to the Court. The applicant’s written submissions on sentence advanced the following submission in relation to this provision:

10. [39]

    As the respondent submitted on the appeal, this did not amount to a submission that the applicant had “good prospects of rehabilitation”, to which s 21A(3)(h) refers. Instead, the focus of the submission was that, having regard to the applicant’s youth, the sentencing judge should give greater weight to principles of rehabilitation rather than deterrence. This was developed by the applicant’s then-counsel during the proceedings on sentence, where counsel submitted:

11. [40]

    Counsel’s submissions in this regard reflected the opinion of Ms Edwige as to the supports that the applicant would need to mitigate his risk of re-offending. The clear implication of counsel’s submission, which his Honour was alive to in finding special circumstances, was that the applicant’s prospects of rehabilitation would be improved if he had a longer time on parole with associated assistance. The Crown similarly submitted on sentence that the applicant should be granted an opportunity for rehabilitation but that the opportunity would require strict guard rails to be in place, considering the high risk of recidivism.

12. [41]

    Although the sentencing judge made no express findings as to the applicant’s prospects of rehabilitation, his Honour referred expressly to the treatment plan that Ms Edwige had put forward when explaining the risk that the applicant would become institutionalised. His Honour also considered that a shorter sentence and a longer period on parole was appropriate, providing the applicant with the opportunity to undertake the rehabilitation that Ms Edwige recommended.

13. [42]

    The applicant appeared to accept that the sentencing judge’s adoption of the treatment plan and finding of special circumstances were consistent with a consideration of the applicant’s prospects of rehabilitation. However, counsel submitted that the sentencing judge failed to give reasons for adopting that course, and that it was not possible to determine whether his Honour had taken the applicant’s prospects of rehabilitation into account as required. I do not accept that submission. As the Crown submitted, the sentencing judge took account of the applicant’s prospects of rehabilitation in fixing a sentence expressly intended to support that process: see eg Baker v R [2022] NSWCCA 195; 302 A Crim R 60 at [73]. In circumstances where the sentencing judge plainly considered the applicant’s prospects of rehabilitation, there is no merit in ground 2 on this issue.

14. [43]

    It follows that I would dismiss grounds 1 and 2.

Ground 3: the sentence was manifestly excessive

1. [44]

   The applicant contended that the sentence imposed was manifestly excessive on the following bases:

   1. (1)

      The sentencing judge failed to give sufficient weight to the unchallenged evidence before the Court that the applicant had been introduced to drugs at a young age and was from a disadvantaged background when assessing specific deterrence and rehabilitation.

   2. (2)

      The sentencing judge did not address how the mental conditions experienced by the applicant impacted his moral culpability. The applicant relied on Lane v R [2025] NSWCCA 113 in support of a submission that, even if there was no causal connection between the offending and the applicant’s mental health issues, there was a basis to conclude that it contributed in a material way.

   3. (3)

      Although the sentencing judge referred to the principles in Bugmy, his Honour did not indicate whether he found the applicant’s moral culpability to have been reduced on that basis, or consider how the sentence was mitigated. The applicant relied in this respect on JL v R [2024] NSWCCA 246, in which this Court concluded that a sentencing judge erred in failing to articulate how he dealt with the Bugmy factors on sentence.

2. [45]

   I do not consider that the matters on which the applicant relied resulted in a sentence that was manifestly excessive, having regard to the applicable principles regarding manifest excess as summarised, for example, in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]. As the respondent submitted, the sentencing judge was dealing with the applicant for four offences that he committed whilst he was on parole for earlier, similar, offending, and on bail for a further charge. The greater part of his Honour’s reasons on sentence addressed the applicant’s personal circumstances, including his background, his age (being a “young man”) and his risk of institutionalisation. His Honour found that the principles in Bugmy were engaged, and expressly concluded in relation to his criminal history that it would be inappropriate to impose a more severe penalty where the applicant could not be held responsible for “addictions caused by taking to alcohol and drugs at the age of ten or eleven, or being otherwise drawn into the wrong crowd because of poverty and disadvantage”.

3. [46]

   Specifically in respect of the applicant’s submission concerning his moral culpability for the present offending, the respondent noted that in the proceedings on sentence, the sentencing judge appeared to reject a submission that the applicant’s PTSD materially reduced his moral culpability. Counsel for the applicant conceded that it was not a strong point but maintained that the applicant’s mental condition, coupled with the Bugmy factors, reduced his moral culpability. Although the sentencing judge did not make a positive finding about moral culpability, it was clear from the exchanges between his Honour and the applicant’s counsel that it was a matter that his Honour was very much alive to. That this was the case can be seen from his Honour’s detailed recitation, in his Honour’s reasons, of the applicant’s background of disadvantage.

4. [47]

   The applicant has not established that the sentence imposed was manifestly excessive. I would dismiss ground 3.

Conclusion

1. [48]

   I propose the following orders:

   1. (1)

      Leave to appeal against sentence granted.

   2. (2)

      Appeal dismissed.

2. [49]

   KIRK JA: I agree with Mitchelmore JA.

3. [50]

   RIGG J: I agree with Mitchelmore JA.