AJ v R

1. [1]

   SIMPSON AJA: I agree with Davies J.

2. [2]

   PRICE J: I agree with Davies J.

3. [3]

   DAVIES J: The applicant, a young person, pleaded guilty in the Children’s Court to three offences arising out of an incident at the Westfield Shopping Centre, Liverpool on the evening of 16 December 2021. Those offences were:

4. [4]

   Sequence 1 was a serious children’s indictable offence as defined in s 3 of the Children (Criminal Proceedings) Act 1987 (NSW). Accordingly, the matters were committed for sentence to the District Court. In the District Court sequences 2 and 3 were taken into account on a Form 1 in relation to sequence 1.

5. [5]

   On 13 March 2023 the applicant was sentenced by Judge Colefax SC to imprisonment for three years and three months commencing 26 December 2022 and expiring 25 March 2026 with a non-parole period of one year and six months expiring 25 June 2024.

6. [6]

   The sentence was imposed after taking into account a discount for the applicant’s early plea of 25%.

7. [7]

   The applicant now seeks leave to appeal against his sentence on the following grounds:

8. [8]

   Judge Colefax SC sentenced a number of other young persons who were involved in the same incident. On 24 March 2023 he sentenced the young person TM to imprisonment for three years with a non-parole period of one year, taking into account a discount of 25% for the applicant’s early plea. TM appealed against his sentence raising, in substance, the same grounds as the present applicant raises in grounds 1 and 2 of the notice of appeal.

9. [9]

   On 26 July 2023 this Court quashed the sentence imposed by Judge Colefax and, in lieu, maintained the head sentence of imprisonment for three years but reduced the non-parole period to a period of nine months: TM v R [2023] NSWCCA 185. It is the outcome from that decision which forms the basis of ground 3 in the present appeal.

The offending

1. [10]

   Three young men, Jordan Campton, Brayden Taylor and Brock Ruwoldt were walking from the Event Cinemas at Westfield in Liverpool at about 9:50pm on 16 December 2021. The applicant, together with five co-offenders ST, AT, LA, TM and JM, followed the three young men. A number of the offenders surrounded the three young men, saying words to the effect of, “nice stuff you're wearing” and “give us your stuff”. The three young men attempted to walk away, but they were surrounded. TM took a hat from Mr Taylor’s head and walked away with it.

2. [11]

   Shortly afterwards, the applicant grabbed Mr Campton's left pocket and removed an unknown item from it, which he placed in his jumper pocket. Two of the other offenders started to unzip Mr Campton's blue jacket and remove it from his body. At that time the applicant grabbed Mr Ruwoldt's jumper from behind. He and another offender followed Mr Ruwoldt towards the George Street exit of the shopping complex.

3. [12]

   Two of the offenders and an unknown male cornered Mr Campton. They removed his jacket and one of them pushed him, causing him to fall into the shop wall. AT then punched Mr Campton in the head with a closed fist.

4. [13]

   The remainder of the offenders including the applicant and five unknown males, ran back to join the assault. Mr Campton was punched by a number of the offenders several times and he fell to the floor. The Agreed Facts then recorded that, whilst Mr Campton was lying on the ground, the unknown males stomped on his head, and the applicant kicked his head and body. TM also kicked Mr Campton to his body as he lay on the ground. At some point during the assault Mr Campton was rendered unconscious.

5. [14]

   The police were called and Mr Campton was transported to Liverpool Hospital. He sustained a bruise to the back of the nose and a laceration approximately three centimetres in size, fractures to the rear of the skull, subdural hematoma along the flax measuring one millimetre and generalised cerebral oedema, a fractured eye socket and a fractured cheekbone.

6. [15]

   The sentencing judge noted that although the Agreed Facts stated that the applicant kicked Mr Campton to the head, the applicant said that that was not so and it became a contested fact. The applicant maintained that his foot accidently came into contact with a part of Mr Campton’s body as the applicant was seeking to step over him. The sentencing judge noted that he had viewed the video tape a number of times and what he saw clearly was not so much the applicant kicking Mr Campton’s head as stomping on it. His Honour noted also that in text messages sent to the applicant’s friends afterwards the applicant boasted about doing precisely that.

7. [16]

   The sentencing judge determined that the offences engaged in by both the applicant and TM were within the mid-range.

Subjective matters

1. [17]

   The applicant was born in July 2006 and was aged 15 years and five months at the time of the offending. He was the eldest of three sons born to his Nepalese parents. They came to Australia in 1997 and 1998. His mother advised the Youth Justice caseworkers who prepared a report for the sentencing judge, that they were a normal, loving and caring family, with deep religious faith, and the support of their church community.

2. [18]

   An issue was identified in the Youth Justice Report about the level and extent of parental discipline towards the applicant and his siblings although that was not a matter the applicant identified when he spoke to the psychologist. Nevertheless, it is clear from both the Youth Justice Report and the report from the psychologist that the applicant came from a stable family background.

3. [19]

   The applicant suffered from some bullying in Years 7 and 8 at school with the result that he moved to a different school for Year 9. By the time he turned 15 in the year of the offending, he had started to rebel as a result of his parents’ focus on his academic performance. He met a girl who introduced him to his co-offenders. He appeared to have taken on their antisocial attitudes and beliefs. Two years earlier he had been the victim of a violent assault and robbery which caused him to be afraid of going out alone.

4. [20]

   The psychologist concluded from the account of the incident given by the applicant that his thought processes reflected his level of immaturity both at the time of the offences and at the time of the interview. The psychologist said that immaturity affected several areas of cognitive functioning, such as impulsivity, reasoning and consequential thinking. The applicant told the psychologist that he was trying to “fit in” and be accepted by the people with whom he was mixing.

5. [21]

   Dr Thomas Dornan, the psychologist who examined the applicant, concluded:

6. [22]

   The applicant had no prior criminal record.

Grounds of appeal

1. [23]

   It is convenient to deal with these grounds together, as the parties did.

2. [24]

   In his ROS, Judge Colefax SC said this:

3. [25]

   His Honour made no reference to the applicant’s moral culpability nor to the issue of general deterrence.

4. [26]

   The written submissions on behalf of the applicant before the sentencing judge said that the court should find that the applicant’s youth and immaturity lessened his moral culpability. The submissions also included a lengthy extract from what was said in Paul Campbell v R [2018] NSWCCA 87, where the importance of rehabilitation over deterrence was emphasised.

5. [27]

   In this Court, the applicant submitted that it was necessary for the sentencing judge to assess whether the emphasis to be given to general deterrence would be moderated because of the applicant’s age. The applicant submitted that nothing was said in the ROS about either matter, apart from his Honour’s preliminary comments (set out at [24] above). In that way, it was submitted error was established because relevant considerations were not accounted for. The applicant submitted that he was entitled to know from the ROS whether his moral culpability was reduced because of his young age, and the effect these matters had on the judge’s assessment of the appropriate sentence.

6. [28]

   The applicant submitted that failure to provide adequate reasons on these important matters is an error in the process. Reference was made to what was said in Blanch v R [2019] NSWCCA 304 at [63]-[64].

7. [29]

   The Crown submitted that, in circumstances where the applicant’s written submissions comprehensively referred to both the law and to the effect of youthful immaturity on the moral culpability of the applicant, what the sentencing judge said in his ROS relate to that issue. The Crown submitted that the further explanation for the way the sentencing judge expressed his remarks derives from s 12(1) of the Children (Criminal Proceedings) Act 1987 (NSW) (“CCPA”) which requires the judge to ensure that the young person understands the proceedings.

8. [30]

   The Crown submitted that the sentencing judge specifically said that he had taken into account the very detailed submissions of the applicant’s counsel, and specifically had regard to s 6 of the CCPA. The Crown submitted that, in contrast, the extempore remarks of the sentencing judge in TM’s matter were insufficient to amount to a consideration of TM’s moral culpability on account of his youth. Further, in the remarks in TM’s case, the sentencing judge referred to his moral culpability as being high, and that the sentence had to be an example to others. In those ways, the reasons of the sentencing judge differed as between the applicant’s case and TM’s case.

9. [31]

   The Crown drew attention to what was said in Taylor v R [2018] NSWCCA 255 concerning the obligations of a sentencing judge in giving reasons. The Crown submitted that the sentencing judge’s succinct exposition of the relevant facts and law, explained in language that would be understood by a juvenile offender, was adequate in the circumstances.

10. [32]

    When Judge Colefax SC sentenced TM he said:

11. [33]

    A little later in his remarks his Honour told TM that his moral culpability was also high, but that his difficult childhood had reduced his moral culpability to an extent. His Honour also said:

12. [34]

    It may be observed, therefore, that the sentencing judge dealt in two ways with TM’s moral culpability, with his prospects of rehabilitation and with general deterrence, although not by using those words.

13. [35]

    TM sought leave to appeal to this Court on the following two grounds:

14. [36]

    In respect of those grounds, Yehia J (with whom Payne and Stern JJA agreed) said at [36]:

15. [37]

    In upholding ground 1(a), Yehia J first cited passages from KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22]-[26]; BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [4]-[5] and JA v R [2021] NSWCCA 10 at [56] in relation to sentencing young offenders particularly in relation to retribution, rehabilitation and general deterrence. Her Honour then went on to say:

16. [38]

    In relation to ground 2(a), Yehia J quoted what the sentencing judge had said about the sentence being an example to others and went on to say:

17. [39]

    It may be accepted that the sentencing judge, both in the present matter and in relation to TM, was endeavouring to articulate reasons in a manner that would be readily understood by the young offenders being sentenced, and that was in accordance with s 12(1) of the CCPA.

18. [40]

    However, although his Honour went further in his remarks in relation to TM by expressly referring to TM’s moral culpability and the issue of general deterrence (neither matter was mentioned in the ROS in the present matter), this Court in TM considered that his Honour’s obligations went further. It follows, therefore, for the reasons given by Yehia J (above) that the reference only to submissions made by counsel in relation to the CCPA, coupled with no reference to the applicant’s moral culpability and the issue of general deterrence, was not in compliance with those obligations.

19. [41]

    The sentencing judge had evidence before him from the Youth Justice Report which suggested that the excessive home discipline experienced by the applicant had possibly resulted in normalising physical harm in some circumstances. His Honour rejected that any such discipline had anything to do with the offending, although his Honour did not say why.

20. [42]

    The sentencing judge also had a report from the psychologist which concluded that the thought process about the applicant’s involvement in the offence reflected his level of immaturity both at the time of the offences as well as at the present time, and that that immaturity generally affected several areas of cognitive functioning, such as impulsivity, reasoning, and consequential thinking. The psychologist also noted that the applicant told him that, in getting involved in the offending, he was trying to “fit in” and “be accepted by his peers”. Although the sentencing judge referred to the report from the psychologist, his Honour made no reference to what the psychologist said in that regard.

21. [43]

    All of that evidence was directly connected with his level of immaturity which was a required consideration under s 6(b) of the CCPA. As in TM, apart from the reference to the applicant’s age in s 6 of the CCPA, the ROS do not reveal whether, and to what extent, the applicant’s young age was taken into account in the assessment of his moral culpability, particularly because the concept of moral culpability was not referred to by his Honour at all. In the same way, where no reference was made to general deterrence, it cannot be understood to what extent his Honour considered that general deterrence had any weight in the sentence imposed or whether, and to what extent, it was offset by a reduction in the applicant’s moral culpability and the importance of rehabilitation given his age.

22. [44]

    I would uphold these grounds of appeal.

23. [45]

    It is then necessary for this Court to re-sentence the applicant. That makes it unnecessary to consider ground 3 separately. Issues of parity will be dealt with in the course of re-sentencing the applicant.

Re-sentence

1. [46]

   The sentencing judge assessed the objective seriousness of the principal offence as a mid-range offence. I agree with that assessment, particularly having watched the video of the assault on Mr Campton and the others. I agree also that the matters on the Form 1 should not result in any meaningful increase in the sentence for the principal offence. I agree that a discount of 25% should be given for the applicant’s early plea.

2. [47]

   Based on reports from Cobham Youth Justice Centre, the applicant’s prospects of rehabilitation are very good. He has demonstrated insight into his offending behaviour, and was focused on obtaining his Higher School Certificate, and then undertaking a TAFE course. He has worked well towards sitting for his HSC as reports from Macarthur Adventist College make clear. I consider that there should be a significant finding of special circumstances to assist in the rehabilitation process which has already successfully commenced.

3. [48]

   I agree from all of the material that the applicant is remorseful, and I consider that the applicant is at low risk of reoffending.

4. [49]

   Although the significance of general deterrence should be mitigated because of the applicant’s age and his reduced moral culpability from the immaturity clearly identified by the psychologist, general deterrence has some role to play in relation to young men and adolescents who engage in unprovoked violence against innocent persons: R v Suliasi Taumalolo; R v Mateaki Taumalolo; R v Mayol; R v ST; R v ET [2022] NSWSC 1696 at [56], [82] and [109].

5. [50]

   In my opinion, but for the issue of parity which has resulted from this Court’s decision in TM, I would have considered that no other sentence less severe was warranted in law and should have been passed. However, the applicant must be resentenced in the light of this Court’s decision in TM.

6. [51]

   Judge Colefax SC sentenced TM to imprisonment for three years with a non-parole period of one year. One matter that fairly clearly resulted in the lower sentence and the lower non-parole period for TM was the fact that he had had what the sentencing judge described as a difficult childhood, unlike all of the other offenders. TM had been abandoned by his mother until he was aged about 15, his father had drug and mental health issues and had been in and out of gaol throughout most of TM’s childhood and adolescence, TM had been brought up by his grandmother, and his grandfather had been difficult also.

7. [52]

   In her judgment in this Court, Yehia J referred to 13 helpline reports from the Department of Communities and Justice – Child Protection between 2006 and 2022 concerning TM. Those reports were in relation to neglect, psychological harm, inadequate nutrition, child exposure to domestic violence and risk of physical harm due to exposure to domestic violence. The applicant was exposed to violence in the family home as a young child and adolescent which contributed to his response in managing his levels of stress or anger through violence.

8. [53]

   The other significant matter of distinction between the applicant and TM, although the distinction was not made by the sentencing judge, was the fact that although TM kicked Mr Campton when he was on the ground, the applicant actually stomped on his head.

9. [54]

   Although this Court, when re-sentencing TM, did not make reference to the issue of parity, the position is that after re-sentence, TM’s non-parole period was reduced to a period of 9 months, whereas for the applicant the sentencing judge had provided a non-parole period of 18 months on a head sentence only 3 months greater than TM received. When the head sentences are 3.25 years and 3 years respectively, the difference in the non-parole period is significant.

10. [55]

    It does not seem to me that either the different nature of the offending by each offender or the differences in their backgrounds can provide a sufficient explanation for the disparity in the non-parole periods which the offenders are required to serve. The disparity is marked and glaring.

11. [56]

    The offending was serious, and I would not propose any alteration to the head sentence. However, I propose that, to take account of the sentence imposed on TM by this Court but also to have regard to the distinction between their offending and their backgrounds, and to the progress the applicant has made towards rehabilitation, the non-parole period for the applicant to be reduced to 12 months.

Conclusion

1. [57]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Uphold the appeal.

   3. (3)

      Quash the sentence imposed in the District Court on 13 March 2023.

   4. (4)

      In lieu, sentence the applicant to a non-parole period of 12 months commencing 26 December 2022 and expiring 25 December 2023 with a balance of term of 2 years and 3 months expiring 25 March 2026.

   5. (5)

      The applicant is first eligible for parole on 26 December 2023.