LG v R

1. [1]

   HARRISON CJ at CL: I agree with McGuire J and with the orders he proposes.

2. [2]

   LONERGAN J: I agree with McGuire J.

3. [3]

   McGUIRE J: The applicant, LG, seeks leave to appeal against the aggregate sentence imposed upon him by her Honour Judge Robinson in the District Court at Dubbo on 29 May 2023. The applicant is not identified in this judgment as he was under the age of 18 years at the time of the offences: s 15A Children (Criminal Proceedings) Act 1987 (NSW).

4. [4]

   The applicant was sentenced for an offence of wounding a person with intent to resist or prevent arrest, contrary to s 33(2)(a) of the Crimes Act 1900 (NSW) (Count 1), which carries a maximum penalty of 25 years imprisonment. He was also sentenced for two related offences on a certificate pursuant to s 31 of the Children (Criminal Proceedings) Act being an offence of police pursuit, not stop and drive dangerously contrary to s 51B of the Crimes Act (Sequence 3), which at law carries a maximum penalty of 3 years imprisonment and an offence of robbery armed with an offensive weapon contrary to s 97(1) of the Crimes Act (Sequence 9), which at law carries a maximum penalty of 20 years imprisonment. Each of the related offences on the s 31 certificate carries a jurisdictional maximum penalty of a 2 year period of control when sentenced in the jurisdiction of the Children’s Court.

5. [5]

   On 11 August 2022 at the Dubbo Children’s Court the applicant pleaded guilty to each of the three offences and was committed for sentence to the District Court.

6. [6]

   After discounts of 25% for the guilty pleas her Honour indicated the following indicative sentences:

   1. (1)

      Count 1: 3 years and 6 months imprisonment;

   2. (2)

      Sequence 3: 15 months imprisonment; and

   3. (3)

      Sequence 9: 2 years and 3 months imprisonment.

7. [7]

   Her Honour imposed an aggregate sentence of 4 years and 6 months commencing 14 October 2021 and expiring 13 April 2026, with a non-parole period of 2 years and 3 months expiring on 13 January 2024.

8. [8]

   The applicant now seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal on the following grounds:

Facts

1. [9]

   In the remarks on sentence the sentencing judge found facts consistent with an agreed facts document signed by the applicant and his solicitor. Those facts may be summarised as follows.

2. [10]

   Sometime mid-morning on 14 October 2021, when the applicant was 17 years of age, he entered a residence in Wellington, in the Central Western Slopes region of New South Wales. The sole occupant of the premises, Mr Singh, woke to find the applicant standing in the entrance of his bedroom holding a silver-coloured object in his right hand and pointing it at Mr Singh. Mr Singh assumed that the object was a knife. Whilst standing next to Mr Singh’s bed, the applicant threatened him with the knife, demanded money and said “Lie down there, otherwise I will stab you”.

3. [11]

   The applicant then went into the kitchen and obtained a large knife. Mr Singh stayed in bed because he was too afraid to get up. The applicant returned to the bedroom with the kitchen knife and threatened Mr Singh. Whilst pointing the knife at Mr Singh, the applicant told him to give him his telephone and bag. He directed Mr Singh to open his backpack and took from it three sets of keys to Mr Singh’s motor vehicle. Mr Singh pleaded with the applicant not to take his car.

4. [12]

   Whilst still pointing the knife at Mr Singh, the applicant directed him to go to the front of the house. Mr Singh was scared and did as he was told. He was led to a bathroom, where he remained for approximately 25 minutes until he could no longer hear any movement inside the house. When Mr Singh attempted to open the bathroom door he was initially unsuccessful because the applicant had tied a piece of cloth to the door handle. Mr Singh then untied the cloth, opened the bathroom door and walked to the front door. He noticed that his motor vehicle was missing and the front gates were damaged. He then noticed that his mobile telephone and wallet were also missing and he telephoned the police.

5. [13]

   The applicant drove Mr Singh’s motor vehicle towards Dubbo, which is about 49 kilometres north west of Wellington. He stopped and picked up his uncle on the way.

6. [14]

   A vehicle matching the description of the stolen vehicle was observed by police travelling on the Mitchell Highway, overtaking a B-double articulated truck and driving into oncoming traffic. A police pursuit was initiated with the police activating their lights and sirens. During the pursuit, the stolen vehicle was observed overtaking a number of vehicles by driving into oncoming traffic and almost colliding with another vehicle. The stolen vehicle then exited the highway continuing at speeds of up to 100 kilometres per hour, made multiple sharp turns, crossed onto the wrong side of the road multiple times and failed to stop at a stop sign.

7. [15]

   The police observed that several other vehicles had to pull off the road in order to avoid colliding with the stolen vehicle. Due to the manner of driving, the police terminated the pursuit. A short time later, on the Newell Highway the stolen vehicle collided with the rear driver’s side of another vehicle which was occupied by a driver and her three children who were then aged 22 years, 14 years and 10 years. As a result of the collision the other vehicle spun off the road and crashed into a telegraph pole and the stolen vehicle crashed into a fence.

8. [16]

   The applicant and his uncle then attempted to flee the scene of the collision on foot. A member of the public, Mr Ricky Rushby, who had been travelling on the Newell Highway at the time, heard the collision and saw the occupants run from one of the vehicles. Mr Rushby exited his car and ran after the applicant, calling out for him to stop. He caught the applicant who then punched Mr Rushby in the back and ran towards a railway line. Mr Rushby chased after the applicant, again caught him and tackled him to the ground. A wrestle ensued. The applicant then got up and ran towards a fence. Mr Rushby again chased after him, caught him and pulled him off the fence. The applicant then tried to crawl through a hole in the fence. Undeterred, Mr Rushby pulled him from the hole in the fence.

9. [17]

   The applicant lunged at Mr Rushby, causing him to fall and sustain bruising to his leg and grazing to his back, and then picked up a rock and hit Mr Rushby with it multiple times to the head, causing a laceration which later required surgical stapling to close the wound. The police then arrived and placed the applicant under arrest.

10. [18]

    The applicant admitted that he had stolen the vehicle from someone’s house by taking the keys, that he had been the driver, that he had failed to stop during the police pursuit and that he had crashed the car on the highway.

The sentence proceedings

1. [19]

   The sentence hearing took place in the District Court at Dubbo before her Honour Judge Robinson on 24 February 2023, 24 March 2023 and 29 May 2023. Both parties provided written submissions and made oral submissions. The applicant did not give evidence on sentence.

2. [20]

   At the sentence hearing counsel for the Crown and the applicant both submitted that DJ v The Queen [2017] NSWCCA 319 (DJ) was authority for the Court having a discretion to sentence the applicant to terms of imprisonment for the offences on the s 31 certificate. That authority, which related to sentencing for offences on a s 166 certificate, held that the District Court was able to hear matters on a s 166 certificate and deal with those according to law. However, the parties did not inform the sentencing judge that after DJ was decided, amendments were made to the Children (Criminal Proceedings Act) by the enactment of the Justice Legislation Amendment Act 2017 (NSW).

Remarks on sentence

1. [21]

   The sentencing judge found the objective seriousness of the Count 1 offence of wounding with intent to be below the mid-range but not towards the lower end, taking into account that the offending was not planned, the significant violence surrounding the attack, the nature of the attack and the resulting injuries.

2. [22]

   Her Honour found the objective seriousness of the Sequence 9 offence of robbery armed with an offensive weapon to be below the mid-range. That finding was reached having regard to the factors identified in the guideline judgment of R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 and that the offending occurred in the victim’s home, involved the use of two knives to threaten the victim, involved tying material to a door to prevent the victim’s escape, involved a real threat of violence but no actual violence, there was no attempt to conceal the applicant’s identity, the offending was relatively unsophisticated, the victim’s house was not specifically targeted, the property taken was not insignificant and the victim did not fall into a class of vulnerability identified in the guideline judgment.

3. [23]

   Her Honour found that the objective seriousness of the Sequence 3 offence of failing to stop and driving dangerously during a police pursuit was within the mid-range for offences of that type. The factors taken into account in reaching that finding were that the incident did not last for a significant period of time, the driving was on a major highway and residential streets, the erratic nature of the driving, the driving was at speeds of up to 100 kilometres per hour, the risk to other road users, the offending coming to an end by collision with another vehicle carrying a driver and four passengers including young children, the apparent lack of physical injury to the occupants of the vehicle and the driving occurring in a recently stolen vehicle with which the applicant had no prior experience.

4. [24]

   The sentencing judge found that the offending was aggravated pursuant to s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW) by the fact that the applicant was subject to conditional liberty. At the time he committed these offences on 14 October 2021 he was on parole, he was the subject of two concurrent probation orders and he was also on bail for offences alleged to have been committed whilst in detention on remand. Her Honour found this aggravating factor to be significant due to the nature and extent of the conditional liberty orders breached and elevated the need for specific deterrence, adequate punishment and protection of the community. Her Honour also found this relevant to an assessment of the applicant’s prospects of rehabilitation and risk of re-offending. In relation to the applicant’s criminal history her Honour said that it showed an escalation of offending and found that it disentitled him to leniency and elevated the relevance of specific deterrence.

5. [25]

   The sentencing judge took into account the applicant’s subjective circumstances, evidenced in a psychological report, a Justice Health mental health report, a Justice Health psychiatric report, a Sentencing Assessment Report, a Youth Justice background report, custodial records and documents produced under subpoena by the Department of Communities and Justice, stating that the material “triggers a number of considerations warranting leniency or otherwise mitigating the sentence to be imposed”.

6. [26]

   The applicant was 18 years old at the time of sentencing. The tendered reports indicated that he had experienced deprivation, neglect and exposure to illicit substance use in childhood. The applicant’s mother was incarcerated when he was seven months old and spent periods of time in custody while he was growing up. The applicant’s parents had difficulty maintaining stable accommodation and providing him with food and clothing. He was exposed to his parents’ substance use from an early age. The applicant spent a significant period of time in Juvenile Justice facilities and completed most of his education in these facilities. When out of custody he did not enjoy school, regularly truanted and was disciplined for behavioural problems. A report by Dr Gordon Elliot, Justice Health Psychiatrist, dated 22 May 2023 noted that clinical notes from the Liverpool Hospital in May 2019 record that the applicant had been expelled from all New South Wales schools for stabbing a teacher.

7. [27]

   The applicant began using cannabis in early adolescence, and by the time he was 16 years old he was using heroin and methylamphetamine.

8. [28]

   Justice Health records indicated that the applicant had been diagnosed with attention deficit hyperactivity disorder, conduct disorder and generalised anxiety disorder. In her report dated 10 October 2022 Dr Jenna Bollinger, psychologist, reported diagnoses of oppositional defiance disorder, stimulant use disorder, cannabis use disorder and conduct disorder and noted that the applicant would have previously met the criteria for major depressive disorder. The sentencing judge noted that the reports indicated that the applicant’s intellectual functioning had not been tested but a recommendation had been made for this to occur. Dr Elliot opined that the applicant’s intellectual functioning would likely fall within the borderline or mildly impaired range.

9. [29]

   The sentencing judge found that the following features applied in mitigation. The applicant’s subjective case was found to be such that greater weight should be given to rehabilitation than to deterrence and retribution, taking into account also that as a juvenile more weight was to be given to rehabilitation. Her Honour considered that in the context of his deprived background, underlying conditions and history of incarceration the offending represented immaturity and reduced capacity to control his impulsive behaviour. Her Honour gave full weight to the applicant’s background of deprivation in accordance with the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. Her Honour found that the applicant’s background was such that it impacted his capacity to learn from experience and that general deterrence and denunciation had a lesser role to play in the sentencing exercise. Her Honour took into account the applicant’s drug use from a young age, which she considered did not develop as a result of his personal choice. The applicant’s mental health was found to moderate the weight given to general deterrence consistent with the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. Her Honour found that there was a high risk of the applicant reoffending, and that the Court would be cautious in considering his prospects of rehabilitation.

10. [30]

    A finding of special circumstances was made due to the applicant’s need for significant support to reintegrate into the community as he was at risk of institutionalisation.

11. [31]

    Her Honour found that the s 5 threshold had been crossed. In considering totality, her Honour found that the distinct criminality of the offences, each having a separate victim, should be recognised by some notional accumulation within an aggregate sentence.

Submissions on appeal

1. [32]

   The applicant does not challenge any of the sentencing judge’s findings of fact, findings of objective seriousness, findings relating to subjective circumstances or application of aggravating and mitigating factors.

2. [33]

   As to ground 1, the applicant submits that her Honour erred by dealing with the s 31 certificate sequences “according to law”. The applicant submits that her Honour ought to have dealt with those sequences by exercising the jurisdiction of the Children’s Court and had no discretion to deal with them as she ultimately did.

3. [34]

   Counsel for the applicant submitted that the sentencing judge was led into error when the legal representatives for the Crown and the accused both submitted that s 18 of the Children (Criminal Proceedings) Act applied and that the Court had a discretion to sentence the applicant to terms of imprisonment for the s 31 certificate matters. The sentencing judge was not informed of amendments to s 31 of the Children (Criminal Proceedings) Act, in particular the addition of s 31(7) which excluded the operation of s 18 and instead required the application of ss 166 to 169 of the Criminal Procedure Act 1986 (NSW). Accordingly, the sentencing court had no discretion to deal with the s 31 matters “at law” and should have instead exercised the jurisdiction of the Children’s Court when dealing with Sequences 3 and 9.

4. [35]

   In relation to ground 2, the applicant submitted that the combined operation of s 31(7) of the Children (Criminal Proceedings) Act and ss 166 to 169 of the Criminal Procedure Act restricted the sentencing court to exercise the functions, restrictions and procedures of the Children’s Court. The maximum jurisdictional penalty available to the Children’s Court for a single offence is a control order for a period not exceeding 2 years: s 33(1)(g) Children (Criminal Proceedings) Act.

5. [36]

   The indicative sentence, after application of the discount for the guilty plea, was a term of imprisonment for 2 years and 3 months. The applicant submitted that a sentence of imprisonment was not available and that a term in excess of 2 years exceeded the maximum jurisdictional penalty.

6. [37]

   In relation to ground 3, the applicant submitted that the aggregate sentence imposed was wrong at law and was manifestly excessive because of the errors relating to grounds 1 and 2.

7. [38]

   The Crown submitted that it was open for this Court to conclude that the sentencing judge erred by sentencing the applicant according to law for Sequences 3 and 9 and that instead, because those matters were related offences transferred to the District Court pursuant to a s 31 certificate, the sentencing judge was required to deal with them in accordance with the jurisdictional limitations of the Children’s Court.

8. [39]

   It was conceded by the Crown that the sentencing judge’s errors were made in circumstances where both parties at first instance incorrectly submitted that s 18 of the Children (Criminal Proceedings) Act applied permitting the court to deal with the offences on a s 31 certificate according to law and failed to inform her Honour of relevant amendments made after the decision in DJ.

9. [40]

   Accordingly, the Crown conceded that grounds 1 and 2 of the appeal had both been made out and that the applicant should be resentenced.

10. [41]

    The Crown did not oppose the application for leave to appeal out of time being granted.

Consideration

1. [42]

   Part 2, Division 4 of the Children (Criminal Proceedings) Act applies to a person who has been found guilty or convicted of an indictable offence by a court other than the Children’s Court and who was a child when the offence was committed and was under the age of 21 when charged: s 16.

2. [43]

   Section 18(1) of the Children (Criminal Proceedings) Act, which is in Part 2, Division 4, provides:

3. [44]

   Division 4 of Part 3 contains the penalties applicable to Children’s Court matters. The penalties available to the Children’s Court, which are set out in s 33, include control orders but do not include terms of imprisonment.

4. [45]

   When a person is charged before the Children’s Court with an offence other than a serious children’s indictable offence, which is defined in s 3 to include an offence punishable by imprisonment for life or for 25 years, the proceedings are to be heard summarily: s 31(1).

5. [46]

   Amendments made to the Children (Criminal Proceedings) Act in 2017 included the addition of s 31(6) and s 31(7).

6. [47]

   Section 31(6) provides the mechanism by which related matters can be committed to another court. That section provides:

7. [48]

   Section 31(7) stipulates the jurisdiction to be applied by another court when dealing with related or backup matters transferred pursuant to s 31(6). Section 31(7) provides:

8. [49]

   This Court’s decision in DJ, which was relied on by the parties at first instance, concerned a 16 year old applicant who was committed from the Dubbo Children’s Court to the District Court for sentence on an offence of discharging a shortened firearm with intent to cause grievous bodily harm (which is a serious children’s indictable offence) and two related offences on a certificate under s 166 of the Criminal Procedure Act. The sentencing judge imposed a term of imprisonment for the indictable offence and fixed terms of imprisonment for each of the s 166 related offences. On appeal, this Court held that the sentencing judge had not erred in imposing sentences according to law for the related offences and that sentencing for those offences was not confined only to those penalties available in the Children (Criminal Proceedings) Act but such matters could be dealt with according to law.

9. [50]

   The decision in DJ is inconsistent with s 31(7) which states that when dealing with related or back up matters ss 166 to 169 of the Criminal Procedure Act apply, with references in those sections to the Local Court construed as references to the Children's Court. Section 168(3) of the Criminal Procedure Act provides:

10. [51]

    The combined effect of s 168(3) of the Criminal Procedure Act and s 31(7) of the Children (Criminal Proceedings) Act, and replacing the reference to the Local Court with a reference to the Children’s Court, is that when dealing with back up or related offences the District Court has the same functions, and is subject to the same restrictions and procedures, as the Children's Court. Relevantly the Children’s Court is restricted to imposing only those sentences which are available under Part 3 Division 4 of the Children (Criminal Proceedings) Act and is expressly restricted from imposing sentences of imprisonment by the unambiguous terms of s 33(4) which states:

11. [52]

    It is unnecessary to decide whether DJ was plainly wrong or that there are compelling reasons to depart from it because the sentence which was the subject of that appeal was imposed on 13 December 2016, before the amendments which introduced s 31(7) came into effect on 14 August 2017.

12. [53]

    Although s 18 permits the District Court to deal with an indictable offence other than a serious children’s indictable offence according to law, it does not extend to sentencing for back up or related offences transferred on a s 31 certificate. Sections 168(3) and 31(7) require such offences to be dealt with in accordance with the Children's Court’s functions and subject to its restrictions and procedures, not according to law.

13. [54]

    Accordingly, it was not open to the sentencing judge to sentence the applicant to a term of imprisonment for either of the related offences on the s 31 certificate, Sequences 3 and 9.

14. [55]

    Ground 1 is made out. Accordingly, the applicant will have to be resentenced.

15. [56]

    In relation to ground 2, the maximum jurisdictional penalty available to the Children’s Court for a single offence is a control order for a period not exceeding 2 years: s 33(1)(g). A sentence of imprisonment was unavailable when sentencing for the Sequence 9 related offence. The indicative sentence for that sequence of imprisonment for 2 years and 3 months, after discount for the guilty plea, exceeded the maximum jurisdictional penalty available to the Children’s Court for a single offence which is a control order for a period not exceeding 2 years: s 33(1)(g).

16. [57]

    The sentencing judge did not impose a separate sentence for Sequence 9. Rather, her Honour indicated an indicative sentence for that sequence which would have exceeded the maximum jurisdictional penalty available if it had been imposed as a separate sentence. When an aggregate sentence is imposed under s 53A of the Crimes (Sentencing Procedure) Act the only operative sentence imposed is the aggregate sentence; the indicative sentences are not operative and are not of themselves amenable to appeal: e.g. R v Clarke [2013] NSWCCA 260 at [52]; Cullen v R [2014] NSWCCA 162 at [26].

17. [58]

    However, indicative sentences may act as a guide as to whether error is established in relation to the aggregate sentence by showing that the sentencing discretion miscarried because the judge acted upon a wrong principle and failed to take into account some material consideration – here the maximum jurisdictional penalty available for the relevant individual offence – in considering what aggregate sentence to impose: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40(11)] and authority there cited.

18. [59]

    Ground 2 is not formulated as an error in imposing the aggregate sentence. Rather, it suggests an error in imposing a sentence for Sequence 9. However, no operative sentence was imposed for that sequence. Accordingly, ground 2 has not been made out.

19. [60]

    In relation to ground 3, because ground 1 has been established, the sentencing discretion miscarried and this Court is required to exercise the discretion afresh by resentencing the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35] and [42]. Even if an indicative sentence is assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive. A principal focus of determination of a ground alleging manifest excess will be whether the aggregate sentence reflects the totality of the criminality involved.

20. [61]

    The submissions made on behalf of the applicant indicate that the real complaint is that the form of the sentence, being an aggregate sentence of imprisonment, was wrong at law. During the hearing of the application counsel for the applicant submitted “Our third ground is because of the errors made in respect to the related offences that the overall sentence was excessive but in fact a better way of wording it would be that the aggregate sentence was not available at law … because the court cannot include control orders in an aggregate term of imprisonment …” [T 4.2 - 4.6].

21. [62]

    Counsel for the applicant also submitted that upon resentencing, it would be open to the Court to impose a sentence of imprisonment for Count 1 and control orders for Sequences 3 and 9 which would result in an overall term which “would not differ that much” from the overall head sentence imposed by her Honour which expires in April 2026.

22. [63]

    I do not consider it necessary to resolve ground 3 given the manner in which the ground was argued and because it is necessary in any event for this Court to resentence the applicant afresh.

Leave to appeal – Rule 3.5(5)

1. [64]

   The applicant required leave to appeal out of time under rule 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). In support of the application an affidavit by Roisin McCarthy, a solicitor advocate at the Aboriginal Legal Service, affirmed on 23 February 2024 was read without objection. The respondent did not oppose the granting of leave.

2. [65]

   I am satisfied that the affidavit provides a proper explanation for the delay in instituting the appeal. Accordingly, the requisite leave ought to be granted.

Re-sentence

1. [66]

   It is necessary to re-sentence the applicant given the finding of error in ground 1.

2. [67]

   Counsel for the applicant did not challenge any of the sentencing judge’s findings of fact, objective seriousness or subjective circumstances and did not challenge her Honour’s application of aggravating or mitigating factors. I propose to resentence the applicant on the basis of the unchallenged factual findings made by the sentencing judge: DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 at [9]. I also take into account a number of additional matters relevant to resentence which were raised by the parties.

3. [68]

   In the event of resentence, the applicant relied on two affidavits by James Clifford, a solicitor employed by the Aboriginal Legal Service, which were affirmed on 23 July 2025 and 19 August 2025. The respondent relied on an affidavit by Adam Wilczek, a solicitor employed by the Office of the Director of Public Prosecutions (NSW), sworn on 11 August 2025. No objections were taken to any of those affidavits.

4. [69]

   The affidavit material relied upon by the applicant details that whilst in custody he has experienced periods of segregation and had to deal with the deaths of his mother, brother, grandmother and a close friend. The material also establishes that the applicant has assistance from the National Disability Insurance Scheme as a result of his severe ADHD and related memory and concentration issues. A cognitive assessment file review records that the applicant has significant difficulty responding appropriately in social situations and building appropriate social relationships and that his impulsivity and emotional dysregulation and anxiety can manifest as aggression. The review also notes that the applicant needs substantial assistance with learning and engaging in new activities and that his memory and concentration remain poor even with aggressive pharmacological treatment of his ADHD symptoms.

5. [70]

   The material also establishes that whilst in custody the applicant has undertaken and completed a number of courses including CONNECT Aboriginal Cultural Strengthening, EQUIPS Foundation and EQUIPS Addiction. Documents from the New South Wales Department of Health indicate that the applicant had previously sustained injury to his right lower limb in March 2024 when a truck he was driving collided with a power pole and that in April 2024 he had engaged in acts of self-harm.

6. [71]

   Mr Clifford’s second affidavit relates to a sentence for unrelated offending imposed on the applicant by the Local Court at Dubbo of an aggregate fixed term of imprisonment of 10 months and 21 days to expire on 15 May 2026.

7. [72]

   The affidavit relied on by the respondent relates to the applicant's parole and his updated criminal and custodial histories.

8. [73]

   Turning to Count 1, the offence of wounding with intent, her Honour assessed that offence as being below the mid-range but not towards the lower end of the range. That offence carries a maximum penalty of 25 years imprisonment.

9. [74]

   Sequence 3, the offence of police pursuit, not stopping and driving dangerously, was assessed by her Honour as being within the mid-range for offences of that type. That offence carries a jurisdictional maximum penalty of a 2 year period of control when sentenced in the jurisdiction of the Children's Court.

10. [75]

    Sequence 9, an offence of robbery armed with an offensive weapon, was assessed by her Honour as being below the mid-range of objective seriousness. The jurisdictional maximum penalty for that offence is a 2 year period of control when sentenced in the jurisdiction of the Children's Court.

11. [76]

    I am satisfied that each of those findings of objective seriousness was appropriate in the circumstances of this case.

12. [77]

    The applicant’s youth and his other subjective circumstances require that greater weight should be given to rehabilitation and lesser weight given to considerations of deterrence and retribution. Although the offending is serious, it cannot be said that significant planning was involved, or that his conduct displayed signs of mature decision-making. Rather, the circumstances of the offending suggest that emotional immaturity and less than fully developed capacity to control impulses were likely to be contributing factors. In those circumstances I am satisfied that his youth, emotional immaturity and reduced capacity to control impulsive behaviour mitigate his culpability and reduce considerations of retribution and deterrence: BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [3] – [6]. I give full weight to the applicant's background of deprivation as required by Bugmy v The Queen and I am satisfied that that background moderates considerations of general deterrence and denunciation in the sentencing exercise. The applicant's mental health requires there to be moderation to the weight given to general deterrence consistent with the principles in Director of Public Prosecutions (Cth) v De La Rosa.

13. [78]

    The applicant presents as a significant risk of reoffending in the future. His prospects of rehabilitation could be regarded, at best, as guarded. In light of his youth and other subjective circumstances and the need to avoid institutionalisation, a finding of special circumstances is appropriate to provide the applicant with an opportunity to have a greater period on conditional liberty in the community with access to support services to assist him to reintegrate.

14. [79]

    Applying the principle of totality, there should be some concurrency in the sentences imposed. Because of the distinct criminality involved in each offence there must also be a degree of accumulation in the sentences.

15. [80]

    By operation of s 25A(1)(b) of the Crimes (Sentencing Procedure) Act, because the applicant was under the age of 18 years at the time he committed the offence, no automatic quantified discount applies for the guilty plea to Count 1. In relation to Sequences 3 and 9, s 33B of the Children (Criminal Proceedings) Act applies and requires the Court to take into account both the fact that the applicant has pleaded guilty and when the pleas were entered or indicated and provides that the court may accordingly reduce the order that would otherwise have been made. Here the applicant entered guilty pleas to Sequences 3 and 9 in the Dubbo Children’s Court on 11 August 2022 and at the same time indicated an intention to plead guilty to Count 1. He formally entered a guilty plea to Count 1 when arraigned in the District Court on 26 September 2022. Accordingly, I am satisfied that the pleas were entered or indicated at the earliest opportunity. Although the statutory regime in s 25D of the Crimes (Sentencing Procedure) Act does not strictly apply, I am satisfied that the applicant is entitled to a 25% discount on the sentences which would otherwise be imposed to account for the utilitarian value of the pleas. I note that the respondent conceded at first instance that such an approach was appropriate and that no submission to the contrary was made in this Court.

Orders

1. [81]

   Accordingly, I propose the following orders:

   1. (1)

      grant leave to appeal;

   2. (2)

      allow the appeal;

   3. (3)

      quash the sentence imposed in the District Court on 29 May 2023;

   4. (4)

      in lieu, sentence the applicant after discounts of 25% for the guilty pleas:

2. [82]

   The earliest date upon which the applicant would have become eligible for release on parole was 13 January 2024. However, I note that the applicant is serving a fixed term of imprisonment, imposed in respect of unrelated offending, which does not expire until 15 May 2026.