Carr v R

1. [1]

   WARD P: I agree with Dhanji J.

2. [2]

   HAMILL J: I agree with Dhanji J.

3. [3]

   DHANJI J:

Introduction

1. [4]

   Michael William Carr (‘the applicant’) seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by his Honour Judge Lerve (‘the sentencing judge’) in the District Court of New South Wales at Wagga Wagga on 15 December 2022.

2. [5]

   Mr Carr was sentenced to an aggregate term of imprisonment of 10 years with a non-parole period of 6 years and 3 months, commencing on 21 June 2021.

3. [6]

   The aggregate sentence dealt with a total of nine offences, including one aggravated break, enter and steal offence which occurred between 19 and 20 February 2020 (Sequence 1). The remaining eight offences (Counts 1-8 on indictment) were committed between 1am on Saturday 16 May 2020 and 5am on Sunday 17 May 2020, a period of 28 hours.

4. [7]

   The following table was provided by the Crown on appeal and sets out the offences in respect of which Mr Carr was sentenced, the applicable maximum penalties, the sentencing discounts for the applicant’s pleas of guilty and the indicative sentences (a standard non-parole period is referred to in the table as “SNPP”).

5. [8]

   As noted above the aggregate sentence imposed was 10 years with a non-parole period of 6 years and 3 months, commencing on 21 June 2021. The head sentence will expire on 20 June 2031. The applicant will be eligible for parole on 20 September 2027.

Grounds of appeal

1. [9]

   Mr Carr relies upon the following grounds of appeal:

2. [10]

   The applicant had, at the time of filing, put forward as ground 1 of his proposed appeal a complaint that the sentencing judge erred in failing to consider the effect of the applicant’s mental condition on the offending and consequently his moral culpability. This ground was, however, abandoned at the hearing of the appeal.

The facts of the offences

1. [11]

   An Agreed Facts document setting out the offending was tendered. The core aspects of those facts are set out below.

2. [12]

   Between 9:30pm on 19 February and 6.20am on 20 February 2020, Mr Carr entered the backyard of the victim, Guy Weidemann’s home in Glenfield Park while the victim was at home in bed. The applicant entered the garden shed and took a flat blade screwdriver and chisel. He then used these tools to pry open the locked side door of the garage, causing $400 worth of damage to the door. The applicant stole a motorcycle worth $4,000, which has never been recovered.

3. [13]

   Between 1:00am and 2:00am on Saturday 16 May 2020, Mr Carr, in company with an unknown person, broke into the Settlers Village aged care facility at Estella by opening the rear door of the building. The applicant rifled through staff lockers and stole two handbags, car keys, wallets and a mobile phone, belonging to victims, Louise McDermott and Catherine Sosoli. Some of the items, such as the handbags, were recovered in the carpark. The property stolen from Ms McDermott was valued at $1,200 and that of Ms Sosoli was valued at $250.

4. [14]

   Just before 2.50am on 16 May 2020, Mr Carr broke into the victim, Paul Williams’ home at Estella by opening the unlocked rear sliding door. Once inside, the applicant took the victim’s car keys and a duffle bag containing clothing and a wallet (the duffle bag and its contents were left in the backyard) (Count 2). The applicant used the car keys to steal the victim’s vehicle, a Suzuki Swift (Count 3), which he drove to the FoodWorks store at Forest Hill.

5. [15]

   At about 3:00am on 16 May 2020, the victim, David Willis was working as a delivery driver delivering bread to the FoodWorks. As Mr Willis drove into the FoodWorks carpark, he saw a Suzuki Swift drive out of the carpark. Mr Willis parked his truck near the loading dock. While he was in the rear of the truck retrieving the bread, Mr Carr returned to the carpark and parked the Suzuki Swift next to the victim’s truck. Mr Carr got out of the car and walked over to the victim. He then pointed a knife (about 6 inches long and serrated) at the victim and said, “[g]ive me everything you’ve got”, in response to which the victim gave him his mobile phone. Mr Carr said, “[g]ive me everything, give me your wallet”, to which the victim replied that he did not have his wallet on him.

6. [16]

   Mr Carr then demanded that the victim let him into the store, which he did. He demanded that the victim take him to the safe, but the victim did not know its location, so they walked to the cigarette cabinet. Mr Carr demanded that the victim open the cigarette cabinet, but the victim did not have the keys. The applicant continually made threats that he would kill the victim. He used a knife to force open a lock on the office door and then searched the office for anything of value or keys. The victim, fearing for his life and wanting the applicant to find what he was looking for so he would leave, suggested that he would use a fire extinguisher to break open the cigarette cabinet. The victim attempted this but was unsuccessful. Mr Carr found a hammer and told the victim to use that, which was also unsuccessful. The applicant also tried using keys located in the office to open the cigarette display cabinet, but they did not fit. Throughout these events, Mr Carr reiterated his threats to stab and kill the victim (Count 5).

7. [17]

   Mr Carr then demanded that the victim give him money from his bank account. The victim obtained his wallet from inside the delivery truck. From an ATM at the front of the store, the victim withdrew $2,000 and gave the cash to the applicant, who continued to threaten him. Mr Carr demanded that the victim get in the car, and he did so.

8. [18]

   Mr Carr then drove off with the victim detained in the vehicle. While driving, the applicant told the victim to set up cardless cash on his phone. The victim did not know how to do so, so the applicant explained the process to him. During the drive the applicant said, “[j]ust relax, you will get a holiday out of this traumatic experience. The bank will give you your money back.” As the victim was trying to download the cashless card application, the applicant said, “[if] you’re trying to call the police I will take you to a house and put a gun in your mouth.”

9. [19]

   Mr Carr was driving at high speed when he lost control of the vehicle, which, as a result, became stuck on a barbed wire fence. It took about 10 minutes for the applicant and victim to remove the vehicle from the fence.

10. [20]

    The applicant then drove them to Kooringal Mall where he made the victim withdraw more cash from an ATM. The victim withdrew all his remaining cash amounting to $1550 and gave it to the applicant. Mr Carr stole a total of $3550 from the victim (Count 4).

11. [21]

    When the applicant realised that this was all the cash the victim could withdraw, he walked back to the car and told the victim to call the police, which he did, while Mr Carr drove away.

12. [22]

    Mr Carr abandoned the Suzuki Swift and attempted to set fire to it. However, the fire did not take hold, resulting in damage only to the front seat of the car. CCTV footage showed the applicant walking away from the location where he left the car, in the direction of his residence in Turvey Park. He disposed of the gloves worn by him to commit the offences in the garbage bin directly opposite his house.

13. [23]

    Sometime after 3:40am on Sunday 17 May 2020, Mr Carr and a co-offender stole the victim’s, Dennis Scutt’s Nissan Navaro which had been parked in the front yard of a premises at Springvale.

14. [24]

    The applicant and the co-offender drove the vehicle to FoodWorks at The Rock, Wagga Wagga. Mr Carr broke into the store by pushing in a window. Inside, he stole 689 packets of cigarettes and 60 bottles of alcohol, valued at $26,375. The Nissan Navaro was found abandoned at 9.40am that day in Ashmont.

15. [25]

    On 20 May 2020, Mr Carr was observed by police riding a trail bike with a pillion passenger. He was apprehended following a police pursuit. Mr Carr’s passenger was found to be in possession of 14 packets of tobacco and cigarettes. The applicant’s arrest resulted in injury to him and he was taken to hospital. While being transferred into police custody from hospital, the applicant briefly escaped, but was apprehended shortly afterwards hiding in shrubbery in a nearby yard. Mr Carr was charged in relation to the break enter and steal offence against Mr Weidemann of February 2020 (Seq 1). He was charged with the offences committed in May 2020 (Counts 1-8) on 4 August 2020.

16. [26]

    At the time of each of the above offences, the applicant was on bail for a break and enter offence and on either a good behaviour bond or probation under ss 33(1)(b) or (e) of the Children (Criminal Proceedings) Act 1987 (NSW) in respect of eight offences in the nature of assaulting a police officer in the execution of duty, breaking and entering, stealing property in a dwelling house, dealing with the proceeds of crime and having suspected stolen goods in his custody.

The applicant’s subjective case

1. [27]

   Mr Carr is a Wiradjuri man. He was 19 years old at the time of the offending. By the time of sentence, he had turned 22.

2. [28]

   On sentence proceedings, the applicant tendered a psychological report of Julie Dombrowski dated 28 November 2022, a letter from the applicant’s maternal grandfather, Thomas Carr and a letter from Maayu Mali Rehabilitation, where the applicant had successfully completed a 3-month residential rehabilitation program in early 2022.

3. [29]

   The applicant had only sporadic contact with his father throughout his early childhood and has memories of him being physically abusive. His mother was and remained a user of heroin and methylamphetamine. Mr Carr regularly went without adequate food or supervision and at the age of four, he was placed in foster care and separated from his older brother. From age 11, he lived with his grandfather. At age 14, his great uncle, with whom he was close, died of cancer. After this death, Mr Carr’s grandfather, at that time a heroin user, struggled to provide adequate supervision and the applicant’s history of juvenile offending commenced.

4. [30]

   Mr Carr attended thirteen different primary schools due to frequent changes in his care arrangements. He left school in year nine. His school attendance was poor, and he was frequently suspended, and from one school expelled, for his disruptive behaviour. Mr Carr’s literacy skills are limited and he has never completed vocational or tertiary education. His only employment was as a gardener for one week in 2022 after he completed the rehabilitation program. This position ceased when he was returned to custody for breaching his bail conditions.

5. [31]

   As to Mr Carr’s cultural, social and relationship history, Ms Dombrowski noted that he felt disconnected from his Aboriginal culture and that most of his past social contacts have been people who use substances and commit crime.

6. [32]

   Mr Carr started using cannabis at the age of 12 and methylamphetamine at 14. From the age of 17, he began to use heroin when unable to access methylamphetamine.

7. [33]

   Ms Dombrowski opined that as a result of the applicant's disadvantaged upbringing (including exposure to substances, physical abuse, neglect and separation from family and culture), the applicant has “longstanding emotional regulation difficulties consistent with Major Depression or Persistent Depression and symptoms of trauma”. In her opinion, the applicant used substances to manage negative thoughts and feelings he otherwise found overwhelming and had received little supervision to guide his social and moral development. She reported that he requires further treatment for his substance use, mood disorder and symptoms of childhood trauma.

8. [34]

   The letter from Maayu Mali Rehabilitation noted the applicant’s progress during his time at the centre, though this report was written in February 2022, prior to the program’s completion.

9. [35]

   Aside from those offences committed as a child, in the four-year period between the applicant's 18th birthday in 2018 and being sentenced for the present offences on 15 December 2022, the applicant had been convicted of 12 offences in the nature of proceeds of crime and property offences in 2019. On 23 December 2020, the applicant was sentenced in the Local Court at Wagga Wagga for driving offences including in respect of a police pursuit, driving dangerously and failing to stop and assist after an impact causing injury, resisting a police officer and escaping police custody offences, these being offences also committed on 20 May 2020, shortly after the present offending. On 18 May 2022 ,the applicant was sentenced in the Local Court for prohibited weapon and possess prohibited drug offences committed on 27 April 2022, after the dates of the present offending.

Ground 2: the sentencing judge erred in failing to consider the effect of the applicant’s youth on the offending

1. [36]

   The facts presented to the sentencing judge, both as to the offending and the offender, were uncontroversial. Nonetheless, as is apparent from the matters set out above, his Honour was faced with a complex sentencing exercise. Whilst not seeking in any way to minimise that complexity there were three matters that stood out: they were the nature and number the offences, the offender’s age and the offender’s background. Each of those primary considerations required further consideration. With respect to the objective gravity of the offending, it was necessary to analyse each offence and form a view as to its relative seriousness. With respect to the offender’s age and background it was necessary to consider how these matters impacted on the sentencing exercise, or, in other words, what weight they should be given.

2. [37]

   This, of course, was to be done by the process of instinctive synthesis. This process is, as described by McHugh J in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]:

3. [38]

   The above exercise was required as a first step in the sentencing process with respect to each offence. The sentencing judge was then required to apply any applicable discount (here discounts for the applicant’s pleas of guilty) to each of the notional sentences. Consideration was then to be given to principle of totality in order to arrive at the ultimate sentence, which was imposed in this case as an aggregate sentence. Finally, again with regard to totality, it was necessary to determine the commencement date of the sentence.

4. [39]

   Mr Carr, by his ground of appeal, contends that the sentencing judge erred at the stage of undertaking the instinctive synthesis. He contends that the sentencing judge failed to identify and discuss a relevant factor, that being the applicant’s age, and in particular its impact on the offending, resulting in a failure of the process by which the value judgement as to the appropriate (notional) sentence was reached.

5. [40]

   The principles which apply to the sentencing of young persons are well established.

6. [41]

   In R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37, this Court said at [25]:

7. [42]

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

8. [43]

   Subsequent to the above, in BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159, a case relied on by the applicant, Hodgson JA made the following observations qualifying what had been said in KT v R (at [3]-[6]):

9. [44]

   Rothman J agreed with Hodgson JA (forming a majority of the Court). His Honour (at [108]) added the following observation from his reasons in MJ v R, CPD v R [2010] NSWCCA 52 at [71]:

10. [45]

    To similar effect are the observations of Yehia J in TM v R [2023] NSWCCA 185 at [49]. There her Honour observed that the “qualification to the principles concerning young persons where they conduct themselves in an ‘adult like manner’ should be applied with some caution” noting that “[w]hile in some cases, significant planning, or other indicia of mature decision-making, may result in a diminution of the relevant principles, the gravity of an offence does not, by itself, demonstrate ‘adult like’ behaviour”.

11. [46]

    Yehia J’s point, re-iterating a point made in BP v R is underscored by the reasoning of the High Court in RP v The Queen (2016) 259 CLR 641; [2016] HCA 53 at [9], [11]-[12]. While RP v The Queen was decided in a different context - the determination of whether a child had the capacity to commit a (particular) criminal offence (doli capax) - their Honours’ observations are, in my view, instructive. The plurality, particularly at [9], made the point that a child may have a greater understanding of some types of offending compared to other offending, quite unrelated to the relative seriousness of the offence. Their Honours further observed (at [12]), that that understanding will be affected by the intellectual and moral development of the child.

12. [47]

    None of the above is to suggest that the seriousness of an offence is not relevant to the operation of the principles concerning youth. The nature of the offending may be such that an offender’s youth will not impact the sentencing exercise to the extent that it would in the case of less serious offending. A helpful explication of the principles in this regard was provided by Meagher JA in IM v R (2019) 100 NSWLR 110; [2019] NSWCCA 107 at [53], in the context of terrorism offences. His Honour’s observations were applied in Atai v R (2020) 286 A Crim R 1; [2020] NSWCCA 302 at [93]-[94]. Underpinning that approach is the recognition by Price J in in Lodhi v The Queen (2007) 179 A Crim R 470; [2007] NSWCCA 360 at [274]\ (and cited with approval in Director of Public Prosecutions (Cth) v MHK (a pseudonym) (No 1) (2017) 276 A Crim R 235; [2017] VSCA 157 at [55]) that “[a] terrorism offence is an outrageous offence and greater weight is to be given to the protection of society, personal and general deterrence and retribution”. As should be clear, however, the determination of the weight to be given to youth is not to be made on the basis of rigid rules. What is required is a proper consideration of how the general principles are to be applied in the context of the particular case. Thus, for example, in AH v R [2023] NSWCCA 230 this Court, in dealing with a terrorism offence, made reference to the principles set out in KT v R at [22]-[26] and ultimately found that the applicant’s youth did impact his moral culpability (at [114]). It was observed that while protection of the community is a primary consideration in sentencing for terrorism offences, in the circumstances of the particular case, that principle did not significantly impact the weight to be given to the applicant’s subjective case, necessarily including his youth (at [115]).

13. [48]

    In determining whether the sentencing judge’s reasons reveal the error complained of, it is convenient to commence with a consideration of their structure. His Honour commenced his reasons by setting out the various matters for which the applicant was to be sentenced, the relevant maximum penalties and, where applicable, any standard non-parole period. His Honour indicated the discounts to be applied for the applicant’s pleas of guilty. His Honour then discussed a pre-trial issue resolved unfavourably to the applicant leading to the late plea of guilty with respect to the charges on the indictment. Following this, under a separate heading, his Honour set out the facts of the various offences.

14. [49]

    His Honour then under the heading, “Criminal History” noted that Mr Carr was subject to conditional liberty at the time of the offending. His Honour accepted, as had been submitted on behalf of Mr Carr, that “the juvenile history is consistent with an offender to whom the “Bugmy factors” apply so far as the subjective case is concerned”. His Honour then devoted considerable attention to the applicant’s background under the heading “subjective case”. Following this, under the heading, “general remarks” his Honour made reference to the purposes of sentencing, his finding that no sentence other than full-time imprisonment was appropriate (made for the purposes of s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSPA)), the appropriateness of an aggregate sentence and the application of the principle of totality in determining that the aggregate. His Honour then set out a table with the various indicative sentences. Finally, under the heading “Orders” his Honour set out the sentence, noting his finding of special circumstances.

15. [50]

    It was not, and could not, be suggested that the sentencing judge was unaware of the applicant’s age. A number of references were made to Mr Carr’s age in the reasons for sentence. The first such reference was made in the context of discussing the offence of armed robbery when setting out the facts of the various offences. His Honour said (at [31]):

16. [51]

    His Honour under the heading “Criminal History” noted “[t]he offender was born on XX November 2000, and accordingly was 19 years of age at the time of the offending and is just 22 at the time of sentence.” His Honour then continued to note the applicant’s “lengthy history of [b]reak [e]nter and [s]teal type offences in the Children’s Court”.

17. [52]

    While each of the extracts above demonstrates his Honour’s awareness of the applicant’s age, neither could be contended to involve any assessment of the impact of Mr Carr’s age to the sentence to be imposed in his case. The reference to the applicant’s age in the context of the Henry guideline was purely for the purposes of indicating it as a factor which did not distinguish the applicant from the guideline case. While this, at one level, involved consideration of the impact of the applicant’s age on the sentence to be imposed, it was consideration abstracted from the applicant’s individual case. Comparing an offender to be sentenced with an hypothetical offender postulated for the purposes of a guideline may be a useful exercise but it does not involve a consideration of the offender’s case. It might additionally be noted in this context that an offender some years older than the applicant may still be regarded as a young offender for the purposes of comparison with the Henry guideline, demonstrating the blunt nature of the comparison.

18. [53]

    The statement of age in the context of the applicant’s criminal history was no more than that simple factual statement. I would not read his Honour’s reference to the applicant being “just 22 at the time of sentence” as highlighting his youth. Rather it appears to be a reference to the fact that, at the time of sentence the applicant had turned 22 less than a week before.

19. [54]

    Further references were made, at least alluding to the applicant’s youth in dealing with his subjective case. His Honour said (at [59]):

20. [55]

    And then (at [60]):

21. [56]

    His Honour’s observations in the first two extracts above were made, in the context of his Honour’s acceptance that the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 required consideration in the applicant’s case having regard to the evidence of his deprived background. Whilst they have been set out many times before, the High Court’s observations in Bugmy at [44] bear repeating:

22. [57]

    As can be seen, the High Court in Bugmy made clear that a background of childhood disadvantage remains relevant irrespective of the age of the offender. That is the ratio decidendi of the decision. The High Court determined that this Court was in error in finding that “the extent to which social deprivation in a person’s youth and background can be taken into account, must diminish”, and that this “is particularly so when the passage of time has included substantial offending”. Conversely, if an offender’s background remains relevant despite their age, an offender’s youth must remain a relevant factor on sentence in addition to any evidence of a deprived upbringing. The relevance of youth cannot be treated as co-extensive with the relevance of a deprived background.

23. [58]

    Thus, as discussed above, the exercise in a case such as the present must be approached on the basis that an offender’s youth and any childhood deprivation suffered by the offender are separate considerations. Of course, there may be an inter-relationship between them. For example, in determining the weight to be given to the Bugmy factors, age will be a relevant consideration. As the last sentence in the passage from Bugmy extracted above sets out, the Bugmy factors themselves raise a question as to the impact of specific deterrence. The weight to be given to specific deterrence will likely be affected by various relevant factors including the offender’s age.

24. [59]

    Returning to his Honour’s observations in the two passages set out above, his Honour’s references to the applicant’s formative years and the impact of deprivation on young people were not, and cannot be taken as, a reference to the impact of the applicant’s youth on the sentencing exercise.

25. [60]

    The sentencing judge made a further reference to the applicant’s age, stating (at [62]):

26. [61]

    In the above extract, his Honour did take into account the applicant’s age. The consideration of his age was, however limited to its relevance to the finding of special circumstances. As the principles set out above establish, the applicant’s age was relevant at the stage of determining the length of the sentences themselves. The applicant’s complaint is not answered by reference to the fact that age was considered in determining the ratio the non-parole period should bear to the total sentence.

27. [62]

    On behalf of the Crown it was contended that his Honour did not err. In particular it was submitted that his Honour found the applicant’s moral culpability was diminished as a result of the application of the Bugmy principles. The difficulty with this argument is that the same finding, that is, diminished moral culpability on the basis of Bugmy principles, could equally be made in the context of a significantly older offender. This would be, in effect, to treat the applicant’s youth as irrelevant. This is contrary to principle.

28. [63]

    It was further submitted that the more serious offending, that is the armed robbery and related break, enter and steal offence (counts 4 and 5) “had the indicia of adult behaviour”. The sentencing judge did not approach the matter in this way; that is, his Honour did not suggest he was giving the applicant’s youth less weight because of the nature of the crime. For the reasons discussed above, simply labelling an offence as involving “adult behaviour”, without further explanation, is unhelpful. It is necessary to consider the particular offending and the particular offender. The Crown submitted that this offending (counts 4 and 5) “involved the use of the weapon, during which the applicant displayed a degree of calculated indifference to the trauma he was inflicting on the victim, telling him he would be able to claim a holiday in respect of that trauma” and that this was not consistent with the impulsivity of youth. While the seriousness of the offending must necessarily be considered in any sentencing exercise, if anything, the applicant’s comments as to his victim’s ability to claim a holiday as a result of the trauma of the robbery, reflect a very immature understanding of the impact of trauma. Such an immature understanding is hardly surprising having regard to external factors which affected the applicant’s development.

29. [64]

    The Crown submitted that the points made above took on greater force in circumstances where the applicant’s counsel had not specifically submitted that the applicant’s youth was a matter to be taken into account in addition to his deprived background, referring to Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44. It is certainly true that the sentencing judge did not receive the assistance to which he was entitled. Counsel for Mr Carr provided written submissions setting out various matters requiring consideration on sentence. Among those factors was listed “subjective aspects” without elaboration. Further written submissions were provided. Under the heading “mitigating factors” was listed “guilty plea” and “remorse and rehabilitation”.

30. [65]

    I do not intend criticism of the written submissions simply on the basis of their brevity. Brief written submissions supplemented with oral submissions elaborating the basic points may be an effective way to a present case. However, if matters are to be listed in brief submissions, it is to be expected that the important factors will be included. Further, as it happened, the oral submissions made on behalf of Mr Carr did not address matters omitted by the written submissions, or, in any substantial way, expand upon them. The Crown’s written submissions were more helpful to the applicant and of assistance to the Judge. The Crown submitted in writing, “the offenders young age is a strong subjective factor and he appears to be motivated to reconnect with his Indigenous culture”

31. [66]

    With respect to the oral submissions, the applicant’s counsel, at the commencement of the matter, and prior to Mr Carr being brought before the Court said “I too have looked at the overall submissions from both of us. There’s not very much I need to say other than something so that my client sees that I’m representing him”. This was not a precursor to persuasive advocacy. There was significantly more that needed to be said. And, while oral submissions were made on the applicant’s behalf, including some helpful points advancing the applicant’s case, no submission was advanced highlighting the applicant’s youth. His Honour was entitled to greater assistance. Whether the failure to make submissions with respect to the applicant’s youth was because the matter had been addressed in the Crown’s submissions, or because of oversight, or some other reason need not be decided. As Johnson J observed in Zreika v R (at [79]), the jurisdiction of this Court to reconsider a sentence is enlivened “where there can be seen to have been an error of principle, or some other mistake of fact or law”. [1] Whether there has been such an error may be informed by the issues raised by the parties in the context of an adversarial process. That does not mean that a failure to take into account a factor as significant as youth in the context of a 19-year-old offender such as the present is not a failure to take into account a relevant consideration. As I said at the outset of the discussion of this ground, there were three matters which stood out as significant in the sentencing exercise, one of which was the applicant’s age.

32. [67]

    The relevance of the applicant’s age was confirmed by the evidence specific to the case. In addition to the applicant’s chronological age, the sentencing judge had before him the report of Ms Dombrowski, in which she observed that the applicant’s “youth and antisocial peers associations” were relevant factors in understanding his offending. That observation followed the observation that the applicant had “received little caregiver supervision during adolescence to positive[ly] guide is social and moral development or develop a sense of purpose and direction in his life”. This would suggest that not only was the applicant young, he was relatively immature. While this lack of guidance was a result of the applicant’s deprived upbringing, this did not gainsay the fact that that the evidence available on sentence confirmed that the applicant’s age was an important matter to be considered with respect to its impact on the offending, and indeed, more generally.

33. [68]

    For the reasons given above, I am of the view that his Honour erred in failing to have regard to the impact of the applicant’s youth on the offending.

Ground 3 – Manifest excess

1. [69]

   Having regard to my conclusion with respect to ground 2, it is necessary to exercise the sentencing discretion afresh, and impose some other sentence if warranted in law: Criminal Appeal Act 1912 (NSW), s 6(3). It is, in these circumstances, unnecessary to determine this ground.

Re-sentence

1. [70]

   The facts of the offences, and the sentencing judge’s view of those offences has been set out above. I adopt his Honour’s observations subject to the following additional observations.

2. [71]

   As was appreciated by the sentencing judge, counts 4 and 5 were clearly the most serious and, to a significant extent dominate the sentencing exercise. The sentencing judge's assessment that the armed robbery, viewed alone, was more serious than the armed robbery described in the Henry guideline was not challenged and, in my view, is correct, as is the assessment that the aggravated break, enter and steal was within the mid-range of objective seriousness. These offences involved a weapon, threats of violence and the deprivation of the victim's liberty. While that deprivation of liberty was not for a period of hours or days, as is sometimes seen with not dissimilar kidnapping or extortion type offences, nor could it be considered brief. Counts 4 and 5 were the only offences involving violence. While no physical harm came to the victim, he was placed in fear over a protracted period and forced to withdraw the entirety of the cash that was available to him. The two counts were dealt with together in the agreed facts, the narrative covering the victim's entire encounter with the applicant. While the two offences, counts 4 and 5, contained different elements, this was a case where the charges were a reflection of "the way in which the boundaries of particular offences are drawn": Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40]. While the separate elements involved must be reflected in the punishments imposed, I would not provide for significant cumulation between these two counts.

3. [72]

   In relation to count 1, the break and enter in company at Settlers Village, I would add to his Honour’s observations by noting that the break in itself was of a less serious type, it being the opening of a closed rear door, and that while it was a break and enter of a dwelling house, the offence itself did not involve an intrusion into an area where anyone actually lived, the offenders accessing only the staff room.

4. [73]

   Count 2 was a break in of a similar type to count 1, that is, opening a closed door. This offence was the unaggravated form of the offence. It was not, for example, suggested that any person was present in the residence, which would have triggered the presumption in s 105A(2A) of the Crimes Act 1900 (NSW). I would, unlike the sentencing judge, not regard the fact that the offence was committed in the home of the victim as an aggravating factor pursuant to s 21A(2)(eb) of the CSPA, noting that the typical case (though not every case) of break and enter of a dwelling will be committed in the home of a victim. In saying this, I do not suggest the sentencing judge was in error: see R v Bennett (2014) 245 A Crim R 1; [2014] NSWCCA 197 at [5]-[13]; Chung v R [2017] NSWCCA 48 at [25]-[49]; BB v R [2017] NSWCCA 189 at [38]. Rather my approach expresses my preference to have regard to this fact as affecting the seriousness of the offence without suggesting it makes it a particularly serious offence by comparison with other offences against the section.

5. [74]

   With respect to count 6, the intentional damage charge, his Honour was astute to note that it would be in error to have regard to the fact that the damage was by fire as this would be a breach of the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31. On the same basis, it is not possible to have regard to the potential for significantly greater damage (this being an corollary of the fact the damage was caused by fire), rendering the offence relatively minor.

6. [75]

   The break and enter of the FoodWorks (count 8) was an unsophisticated offence, but did result in the taking of property of significant value.

7. [76]

   I note that counts 1 to 6 were all committed within about two hours in the early hours of 16 May 2020. Counts 7 and 8 were committed in the early hours of the next day.

8. [77]

   With respect to the matter of break, enter and steal committed on 20 February 2020, this was charged as an aggravated form of the offence on the basis the applicant knew there were persons present. This circumstance of aggravation is somewhat ameliorated by the fact the entry was to the garage rather than to the house itself, where the occupants resided. It is noted the applicant was not charged with this matter until 20 May 2020 and was thus not on bail with respect to this matter when he committed the offences on the indictment on 16 and 17 May 2020 (albeit he was otherwise on conditional liberty).

9. [78]

   The applicant’s subjective case has been set out in detail above. I regard his moral culpability as reduced on the basis of his age and deprived upbringing. While the offences were committed to obtain funds to feed an addiction, that that addiction arose in the context of an upbringing that made him resort to drugs, while not inevitable, is at least unsurprising.

10. [79]

    I would as a consequence of the above matters place little weight on retribution. I would additionally reduce the weight to be given to general deterrence and place weight on rehabilitation. With respect to this last matter, I do not disregard the applicant’s criminal history, including numerous entries for break and enter type offences. The applicant, however, is still young. He continues to mature. It should not be assumed against him he will inevitably carry on in the same vein. That would be to take a wholly negative view of the prospects of a young man who has already been treated unfairly by fortune. There is, in this regard, evidence of the applicant’s engagement in full-time residential rehabilitation. He was released on bail on 4 January 2022 and entered the Mayuu Mali programme the next day, remaining there for the 12-week programme and receiving a positive report, before being discharged, following which he returned to custody on 27 April 2022 when he was charged with offences of using and possessing a prohibited weapon. While that offending, after attendance at the Mayuu Mali programme, is disappointing, the nature of the offending says little about the prospects of committing further offences of a similar nature to those here, they being offences of a kind that dominate the applicant’s juvenile record.

11. [80]

    On the appeal the Crown tendered a custodial report indicating the applicant has been guilty of a number of instances of misconduct in custody since he was sentenced. While that fact is concerning, it does not substantially impact my view as to his prospects. The applicant was sentenced to a non-parole period of 6 years having just turned 22. Without minimising or in any way condoning the applicant’s misconduct, that he should react to a term of that length in an adult gaol in a manner which suggests a diminished motivation to think about his future, is not altogether surprising. The point is, there is a long time to go, both with respect to any sentence, and the course of the applicant’s life more generally. In relation to the sentence it remains at least a prospect that, as time passes, and release to the community comes closer, he will be motivated to again show the motivation he demonstrated in the Mayuu Mali programme.

12. [81]

    In the circumstances there is no alternative to full-time imprisonment available. I would impose an aggregate sentence.

13. [82]

    I propose the following indicative sentences, as set out in the table below. The indicative sentences have been reached by discounting the matter committed for sentence by 25 percent and the matters on the indictment by 10 percent for the utilitarian value of the pleas of guilty, and rounding down to avoid periods of days or weeks. Non-parole periods are indicated only for those offences involving a standard non-parole period in accordance with s 54B(4) of the CSPA. Those non-parole periods have been set at 75 percent of the total, or where appropriate, rounded down.

14. [83]

    When determining the degree of cumulation some care must be taken in acknowledging that a number of the terms above reflect total terms and do not have non-parole periods. If not imposing an aggregate sentence the individual terms would all, ordinarily, have a non-parole period set. The maximum degree of cumulation available would be on that non-parole period and not on the total term. As I have indicated, there should be a substantial degree of notional concurrency between counts 4 and 5. The total should also acknowledge the short space of time over which the offences on the indictment were committed. There must be some degree of cumulation in order to reflect all of the criminality involved.

15. [84]

    Balancing the various considerations, I propose an aggregate sentence of 7 years and 6 months. Like the sentencing judge I would find special circumstances. I propose a significant variation to the usual ratio. In part, this is to promote rehabilitation while maintaining the potential for further punishment should Mr Carr not take the opportunity on parole, thereby attempting to balance the tension between the weight to be given to specific deterrence and rehabilitation. In part it also acknowledges the sentence will be cumulative, to at least an extent, on earlier sentences. Accordingly, I propose a non-parole period of 4 years and 6 months.

16. [85]

    The applicant was arrested in relation to the current offences on 20 May 2020. As noted above, he was in custody from that date with the exception of the period from 4 January 2022 to 27 April 2022. Given the quasi-custodial nature of his bail during his time in the rehabilitation programme, I would give him credit for two months of that period. From 20 May 2022, the applicant was also serving a 9-month non-parole period with a balance of term of 8 months for offences of resisting police, escaping police custody, police pursuit and failing to stop. From 20 May 2020, the applicant was also in custody referable to the balance of parole of an earlier sentence for a period of 2 weeks and 4 days.

17. [86]

    From 27 April 2022 the applicant was serving a sentence involving a non-parole period of 6 months with a balance of term of 4 months for offences of using and possession of a prohibited weapon.

18. [87]

    Having regard to those earlier sentences, the applicant was subject to a period of 15 months in custody by way of non-parole periods or periods of balance of parole served concurrently with them. He was entitled to release at the end of the last of the non-parole periods but for being bail refused. In those circumstances it is appropriate to provide a period of partial cumulation on a notional non-parole period of 15 months. I would commence the present sentence so as to commence, in effect, 8 months into that notional non-parole period of the other sentences. To do this, I would post-date the sentence 9 months from 20 May 2020 to account for the 8 months in custody for which I would not give him credit, plus one month of the time he was on bail for which I would not give him credit.

19. [88]

    I note that I have, in relation to the commencement date, departed from the date adopted by the sentencing judge. His Honour’s date, understandably, was arrived at based on figures provided to him by the applicant’s counsel. This appears to be another area where his Honour was not well assisted.

20. [89]

    I propose the following orders:

    1. (1)

       Grant leave to appeal.

    2. (2)

       The sentence imposed on the applicant in the District Court on 15 December 2022 is quashed. In lieu thereof impose a sentence of 7 years and 6 months comprising a non-parole period of 4 years and 6 months and a balance of term of 3 years. The sentence is to commence on 19 February 2021. The non-parole period is to expire on 18 August 2025. The total sentence is due to expire on 18 August 2028.

    3. (3)

       The earliest date on which the applicant may be released is 18 August 2025.