Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Dungay v R [2020] NSWCCA 209 Hearing dates: 12 June 2020 Date of orders: 21 August 2020 Decision date: 21 August 2020 Before: Bell P at [1] Davies J at [2] N Adams J at [3] Decision: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The sentence imposed on the applicant in the District Court on 27 May 2019 is quashed. In lieu thereof the following aggregate sentence is imposed under s 53A of the Crimes (Sentencing Procedure Act) 1999 (NSW): 10 years of imprisonment to date from 28 June 2017 and expire on 27 June 2027 with a non-parole period of 6 years and 6 months to expire on 27 December 2023. (4) Pursuant to s 53A(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the indicative sentences are: Count 1: 5 years and 6 months with a non-parole period of 3 years and 8 months. Count 2: 5 years and 5 months. Count 3: (Taking into account the four Form 1 matters) 6 years and 6 months. Catchwords: CRIMINAL LAW – appeal – appeal against sentence – aggravated break, enter and commit serious indictable offence – robbery in company – sentencing judge had regard to Children's Court criminal history – error established – manifest excess – Bugmy principles – youth and history of dysfunction – parity – re-sentencing Legislation Cited: Crimes Act 1900 (NSW), s97(1), s 112(2) Crimes (Sentencing Procedure) Act 1999 (NSW), s 33 Children (Criminal Proceedings) Act 1987 (NSW) ss 14-15, s 33 Cases Cited: BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Crowley v R [2017] NSWCCA 99 Green v The Queen; Quinn v The Queen (2011) 244; CLR 462; [2011] HCA 49 Huckstadt v R [2016] NSWCCA 22 Ibbotson (a pseudonym) v R [2020] NSWCCA 92 Ingrey v R [2016] NSWCCA 31 Judge v R [2018] NSWCCA 203 Katsis v R [2018] NSWCCA 9 Kentwell v The Queen (2014) 252 CLR; [2014] HCA 37 Kliendienst v R [2020] NSWCCA 98 KT v R [2008] NSWCCA 51 Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 Markarian v The Queen (2005) 228 CLR 377; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Nabalarua v R [2020] NSWCCA 68 Perkins v R [2018] NSWCCA 62 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 R v DM [2005] NSWCCA 181 R v Fernando (1992) 76 A Crim R 58 R v GDP (1991) 53 A Crim R 112 R v Hearne (2001) 124 A Crim R 451 R v Irwin [2019] NSWCCA 133 R v Mills [1998] 4 VR 235 R v Millwood [2012] NSWCCA 2 Regina v Henry & Barber (1999) 46 NSWLR 346; [1999] NSWCCA 111 Siddiqi v Regina (Commonwealth) [2015] NSWCCA 169 Taysavang v R; Lee v R [2017] NSWCCA 146 Usher v R [2016] NSWCCA 276 Category: Principal judgment Parties: Jason Keith Dungay (Applicant) Crown (Respondent) Representation: Counsel: Ms G Lewer (Applicant) Ms M Millward (Crown) Solicitors: Legal Aid Commission NSW (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2017/00192331 Publication restriction: Nil but it is noted that the applicant's name was published in this judgment in connection to his record in the Children's Court as it formed part of the official report of the proceedings: s 15B of the Children (Criminal Proceedings) Act 1987 (NSW). Such publication is otherwise prohibited by s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). Decision under appeal Court or tribunal: District Court Date of Decision: 27 May 2019 Before: Wells DCJ File Number(s): 2017/00192331 Judgment 1. BELL P: I agree with N Adams J. 2. DAVIES J: I agree with N Adams J. 3. N ADAMS J: The applicant, Jason Dungay, is a 25 year old Aboriginal man who seeks leave to appeal against the sentence imposed upon him by her Honour Judge Wells SC on 27 May 2019 at the District Court at Lismore. After a late plea of guilty, the applicant stood to be sentenced for three serious offences: Count 1: Aggravated break, enter and commit a serious indictable offence (steal), contrary to s 112(2) of the Crimes Act 1900 (NSW) (maximum penalty 20 years imprisonment; SNPP 5 years). Count 2: Robbery in company, contrary to s 97(1) of the Crimes Act (maximum penalty of 20 years imprisonment). Count 3: Robbery in company (taking into account four additional offences on a Form 1, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"): being three counts of conspiracy to commit robbery in company and one count of knowingly dealing with the proceeds of crime). 1. The offences arose from occasions when the applicant and his co-offenders, whilst heavily disguised and in possession of weapons, entered or smashed their way into clubs or hotels shortly before closing and stole money as the staff were preparing to secure it in safes. A total of $79,803 was stolen. 2. The applicant received an aggregate sentence under s 53A of the Sentencing Act of 12 years imprisonment, with a non-parole period of 8 years, to commence on 28 June 2017. The non-parole period will expire on 26 June 2025 and the head sentence will expire on 27 June 2029. The indicative sentences were as follows: Count 1: 6 years and 4 months imprisonment with a non-parole period of 4 years. Count 2: 6 years imprisonment. Count 3: 8 years imprisonment (taking into account the four Form 1 matters). 1. The applicant's co-offenders, Mr Matthew Gray and Mr Leonard Hoskins, were sentenced for their involvement in the offending at the same time as the applicant. There were slight differences between the respective charges, as will be discussed further below. Mr Gray received the same sentence as the applicant. Mr Hoskins received an aggregate term of 14 years and 6 months imprisonment with a non-parole period of 10 years. Grounds of appeal 1. The applicant relies on three grounds of appeal: Ground One: The Court erred in admitting evidence and having regard to the applicant's Children's Court criminal history. Ground Two: The sentence imposed was manifestly excessive, having particular regard to the applicant's subjective case, including his youth and history of dysfunction and deprivation. Ground Three: The applicant has a justifiable sense of grievance when comparing the sentence imposed upon him with the sentence imposed upon his co-offender, Hoskins. 1. The Crown conceded that error had been established with respect to Ground One. Facts 1. An Agreed Statement of Facts was tendered on sentence. The following is a summary of those facts which describes the offences in chronological order. 2. During 2016 and 2017, police set up "Operation Soren" to investigate armed robberies in the Coffs Harbour, Clarence and mid-North Coast area. During that investigation, police used covert evidence gathering techniques such as telephone intercepts and listening devices. That material was analysed and it emerged that coded conversations using fishing terms were being used in relation to the planning and commission of a number of robbery offences. Typically, the offenders would communicate using this code and then meet together and commit an offence. Form 1: Conspiracy to commit robbery in company - Five Mile Hotel - 10 March 2016 (all three offenders) 1. A series of telephone conversations between the applicant and his co-offenders on 9 and 10 March 2016 were intercepted. It was discussed that the three of them would go for a "lurk and a fish". As a result of this, police followed a motor vehicle registered to the partner of Mr Gray in the vicinity of the Five Mile Hotel in Grafton. A number of marked police vehicles circulated in the area to prevent an offence. When the hotel closed, the offenders did not commit a robbery that night due to the number of marked police vehicles in the area. It was an agreed fact that the three of them had conspired to commit an armed robbery that night. The next morning, Mr Hoskins told his domestic partner that "the police chased us last night and nearly had us!" 2. This was the first offence taken into account by her Honour on the Form 1. Count 1 on the Indictment: Aggravated break enter and steel - Wauchope Country Club - 2 May 2016 (all three offenders) 1. On 2 May 2016 at about 4:27pm, Mr Gray contacted the applicant and said "come for a lurk, fish?" The applicant agreed. Less than an hour later Mr Gray sent a message to Mr Hoskins which read "where u we comin". The three offenders then met in Wauchope. 2. At 10.29pm, the applicant and co-offenders Mr Hoskins and Mr Gray, whilst wearing facial disguises and armed with knives and poles, smashed their way into the Wauchope Country Club. A staff member was counting the takings but was able to leave via an internal stairwell and rear exit before the three offenders entered the strong room. A fourth co-offender waited outside as a lookout. 3. The applicant and his co-offenders stole $32,815, a white bucket containing coins and a staff tip tin. The offence was captured on CCTV. Form 1: Conspiracy to commit robbery in company - Park Beach Bowling Club - 20 June 2016 (all offenders) 1. On 20 June 2016, the applicant and co-offender Mr Gray met in the Coffs Harbour area. The co-offender Mr Hoskins had enquired with Mr Gray about going "fishing". A car associated with the offenders was noticed by marked and covert police cars patrolling the area near the Park Beach Bowling Club and the Coffs Beach Hotel Motel. It was an agreed fact that an armed robbery of the Bowling Club was planned but not carried out due to the presence of the police vehicles. 2. This was the second offence taken into account by her Honour on the Form 1. Form 1: Conspiracy to commit robbery in company - Five Mile Hotel Grafton - 29 August 2016 (the applicant and Mr Gray only) 1. On 29 August 2016, police monitored communications between the applicant, Mr Gray and another about "going for a fish". The applicant, Mr Gray and others were observed in a motor vehicle. Fearing that an armed robbery was imminent, a marked police car was deployed to intercept the vehicle. The vehicle accelerated rapidly and conducted a U-turn. The occupants of the vehicle then threw items out of their vehicle when police approached. The discarded items were three large kitchen knives, black t-shirts and a black pillowcase. The vehicle was later seen to drive slowly past the place where the items had been discarded. It was an agreed fact that the offenders had conspired to commit an armed robbery at the Five Mile Hotel at closing time but did not continue due to the number of marked police vehicles in the area (and being stopped by police). 2. This was the third offence taken into account by her Honour on the Form 1. Count 2 on the Indictment: Robbery in company - Macksville Ex-Serviceman's Club 7 December 2016 (the applicant and Mr Gray) 1. At about 9:58pm on 7 December 2016, the applicant, along with Mr Gray and two other offenders, used a rock and a metal umbrella support stand to smash the glass panel of the rear entry doors to the Macksville Ex-Service's Club. One of the offenders remained outside as a lookout. All of the offenders were disguised and two were carrying large knives. 2. Two staff members, one male and one female, were still present closing up the club. Upon entering the club, two of the offenders approached staff members and made threats to the effect of "[t]ake me to the safe. I will fuckin' stab you". The offenders were led to the safe and the female staff member was told to put the money into a bag. 3. The money stolen amounted to $14,018. 4. Both staff members were told to lie on the ground. The female staff member's purse was stolen and this contained her wallet and mobile phone. All four offenders then left the club and ran across the car park. This offence was also captured by CCTV. Count 3 on the Indictment: Robbery in company - Toormina Hotel 20 April 2017 (the applicant, Mr Gray and Mr Hoskins) 1. On 20 April 2017, police intercepted a number of telephone calls and text messages between the applicant, Mr Gray and Mr Hoskins. 2. At 11.50pm on 20 April 2017, two staff members at the Toormina Hotel were completing procedures to close for the night when the applicant entered, along with Mr Gray, Mr Hoskins and another male. They were armed with knives and wearing facial coverings and dark clothing. Two patrons playing poker machines were also inside the hotel. 3. One of co-offenders demanded that the staff members take him to the safe in the office. They were threatened: "[i]f you fucking move, I'll stab you in the chest". The two perpetrators emptied a large amount of cash (notes and coins) into plastic buckets before all four perpetrators left the premises. The patrons were moved into the bistro area and instructed to lie on the ground. At one point a knife was placed to the back of one of the patrons and a threat was made. 4. The total proceeds of the offence were $32,970. The offence was captured on CCTV. Form 1: Knowingly deal with the proceeds of crime - 23 April 2007 (applicant only) 1. On 21 April 2017, the applicant bought $815 worth of clothing at various stores in Coffs Harbour. He was noted to have a large amount of cash in $50 and $100 notes. He called an associate and gave him directions to a box containing $500 cash within a pair of blue shorts. 2. On 23 April 2017, the applicant purchased a car with $2,500 in cash. Search and arrest 1. On 24 April 2017, police executed a search warrant on the applicant's home in Toormina. They located and seized a number of items from the applicant's bedroom that were linked to the Toormina Hotel robbery as well as knives similar in appearance to those used in that offence. 2. The applicant was arrested on 8 May 2017 and charged. Proceedings on sentence 1. The proceedings on sentence were conducted before Judge Wells SC on 17 May 2019. All three co-offenders tendered material and made submissions on that day. 2. In addition to the Agreed Facts, the Crown also tendered the relevant Form 1 and criminal history in relation to each of the offenders. 3. The applicant and Mr Gray were sentenced in relation to the same matters, although the applicant had one additional Form 1 offence (the Proceeds of Crime offence). Mr Hoskins was sentenced for a separate robbery that was not committed with the applicant and Mr Gray but he was not involved in one of the matters they were sentenced on. On this basis, there was little distinction between the three offenders' respective offending. The applicant's criminal history 1. Most of the applicant's criminal history was in the Children's Court. Given its significance to Ground One, I propose to set it out in full. Sentencing options in the Children (Criminal Proceedings) Act 1987 (NSW) are set out in s 33. The section numbers below refer to the relevant provisions of that Act. Children's Court record 1. On 13 June 2007, the applicant was sentenced in relation to two robberies in company and one fail to appear. He was 14 years old at the time of the offences and sentence. He was placed on a s 33(1)(b) bond. 2. On 17 September 2007, the applicant was sentenced in relation to one break, enter and steal, and two attempted break, enter and steal offences. He was 13 years old at the time of the offences and 14 years old at sentence. He was placed on a s 33(1)(b) bond. He was called up for breaching the bond on 25 January 2008 when he was 15 years old and placed on a control order under s 33(1)(g) for 6 months. 3. On 25 January 2008, he was also placed on a control order for larceny and assault occasioning actual bodily harm offences committed when he was 14 years old, and shoplifting offences committed when he was 15 years old. He was 15 years old at the time of sentence. 4. On 1 July 2010, the applicant was placed on a control order for offences of goods in custody, larceny and break, enter and steal (committed when he was 16 years old) and offences of take and drive conveyance and be carried in a conveyance (committed when he was 17 years old). He was 17 years old at the time of sentence. 5. On 23 August 2010, an offence of escape police custody was dismissed with a caution under s 33(1)(a)(i). He was 17 years old at that time. 6. On 10 January 2011, the applicant was placed on a community service order of 20 hours under s 33(1)(f) for a common assault committed when he was 17 years old. He was 18 years old at the time of sentence. 7. The only offences on his record as an adult were a fine imposed on 7 January 2013 for driving with a low-range PCA, and a s 10 bond for 6 months imposed on 14 July 2014 for resisting an officer in the execution of his duty. Victim Impact Statements 1. The victims of the robbery read their victim impact statements to the Court. 2. The first victim, a male who worked at the Macksville Ex Servicemen's Club, described that his knee injuries were aggravated when he was ordered to the floor, which resulted in his surgeries being brought forward. He also stated that, at 63 years of age, the robbery will never leave in his mind. He often wakes in the night and pictures the two men charging across the dance floor wielding their knives in the air. Whenever he hears a loud bang at work the scene repeats in his mind. 3. The second victim, a female, described how she has panic attacks in her sleep and has extreme anxiety in the most normal situations. She feels unsafe in all environments, including her workplace and home. She remembers what one of the offenders yelled at her. She dreams of nights when the threats become a reality and she is stabbed with the knife that she saw in the gaming room. She described starving herself daily to feel that she has control of her life and body. She is also self-harming. 4. The third victim, a female who worked at the Macksville Ex-Servicemen's Club, described how her life has been affected significantly since the robbery. She had sleepless nights, regular nightmares and a sense of fear as it gets dark. Her mental state has still not recovered. She has post-traumatic stress disorder, anxiety and depression. She also has vivid flashbacks that are triggered by noise, smell or being startled. Her marriage is under pressure. She was pregnant at the time of the robbery and suffered a miscarriage afterwards. Applicant's subjective case 1. On behalf of the applicant, a psychologist's report from Ms Julie Dombrowski dated 10 May 2019 was tendered. She recounted what the applicant had told her about his childhood and also assessed his current mental condition. 2. Ms Dombrowski described the applicant as engaging well with the interview process and speaking with a sophisticated vocabulary. Her opinion was that he is of normal intelligence and demonstrated some insight into his behaviour. The applicant told her that he had been taking .2 g of methamphetamine and drinking 18 beers a day at around the time of the offences. The reason he agreed to take part in the robberies was to fund his ongoing substance abuse. 3. As for the applicant's childhood, both of his parents had served terms of imprisonment. He was mainly raised by his grandmother. He denied ever experiencing any neglect or abuse while she was looking after him. He first attempted suicide at the age of 12 by hanging. He did not receive any counselling after this. When he was 13, his parents separated and his mother moved down to the South Coast to live so he went down to live with her. From then on he led a transient lifestyle. He left school in Year 8. He was later able to complete Year 10 in Juvenile Detention. 4. The applicant described how he was regularly involved in fights because that was how disagreements are settled in his community. He commenced drinking alcohol and smoking cannabis when he was 12 years old. He experienced symptoms of drug-induced psychosis in 2011 and 2015. He sought assistance from the Galambila Aboriginal Health Service, but this was unsuccessful and he frequently relapsed. 5. Ms Dombrowski also noted from NSW Justice Health Records that the applicant was admitted to hospital in June 2015 and diagnosed with drug-induced psychosis. He was prescribed an antipsychotic and, in March 2019, was supported by Justice Health staff to gradually withdraw his medication. He denied any current psychotic symptoms or suicidal ideation when speaking with Ms Dombrowski. As for her diagnosis of him, Ms Dombrowski was concerned that he was developing a personality disorder with antisocial features as a result of his poorly structured upbringing, his exposure to people who normalise the use of violence, substances, and his social marginalisation. His substance abuse exacerbated these mental health issues. She emphasised the importance of ongoing psychiatric monitoring. 6. The applicant also gave evidence. He was the only one of the three offenders to do so. In his evidence he apologised to the victims. Having recently heard the statements read by the victims he took full responsibility and apologised to them. He stated that his "nan" was "pretty old", went to clubs and he would not like this to happen to her. 7. He described using alcohol, marijuana and methamphetamines at the time of the offences. Since being in custody, he has seen people using drugs inside but he cannot handle it anymore because of his drug-induced psychotic episodes. He has not had the opportunity to do any courses as he is still on remand. He will reside with his father when he is released from custody and his father, cousins, aunties and brother were present in Court to support him. 8. In cross-examination he was asked why the Toormina Hotel robbery was committed just before midnight. His response was: "Honestly, nothing was planned, it was just done, but everything on the facts I agree to 100%. I agreed. I plead guilty. I'm sorry for what I did and I agree with the facts." 1. And later: "I said - just said nothing was planned. Everything what we did was just there of the moment and, again, I agree with the facts. I've plead guilty and again I'm sorry for what I did." 1. Written submissions were relied upon in relation to the applicant. In oral submissions, the following submission was made in relation to the applicant's Children's Court record: "RAJALINGAM: Just one further matter, if you want to hear it at this stage, in relation to Mr Dungay's juvenile record, I'm not overly concerned with you seeing that. If my friend doesn't press the record should be used to disentitle him from any great deal of leniency, in my submission, his record from his juvenile days is consistent with my submission about deprived upbringing in the circumstances of his development of a serious addiction and complications of mental health. But the relevant sections are 14 and 15 of the Children's Criminal Proceedings Act, which I'm sure you know about. I cannot figure out if some of the matters in his juvenile record were attached to a conviction, or there was a conviction attached to those offences. From what I can see, s 14 requires the offender to be over 16 in order for a conviction to be made. HER HONOUR: All right. RAJALINGAM: The point is: it probably doesn't matter in the overall scheme. HER HONOUR: No." Remarks on sentence 1. On 27 May 2019, her Honour sentenced the applicant, Mr Gray and Mr Hoskins together on. She noted that each of the offenders had entered pleas of guilty on the second day of the trial and awarded a 10% discount to each of them on account of this. After setting out the facts, her Honour then summarised the victim impact statements. 2. In relation to all offenders, her Honour noted the following: "In terms of the subjective circumstances of each of these offenders, they share a number of common background features, including extremely deprived and dysfunctional upbringings, along with significant substance abuse problems and mental health issues, all of which attract considerations found in Bugmy [2013] HCA 37 and Fernando (1992) 76 A Crim R 58." 1. The other two offenders were also Aboriginal and had dysfunctional childhoods as well. In that context, her Honour later noted the following: "In relation to each of the offenders early dysfunction, their addiction problems, mental health problems, and other issues, to a limited extent, temper their suitability for a good deal of emphasis to be placed on general deterrence. On the other hand when regard is given to the detail and ongoing nature of the offences, that consideration is quite limited." 1. Her Honour then noted the applicant's criminal history and stated: "Jason Dungay was aged about 24 years at the time of these offences. He has a record for offences, including a serious offence of breaking and entering, though as a juvenile. He was placed on 18 month supervision as a result. There are some other offences on his juvenile record, including an offence of violence. These offences though are his first serious offences as an adult." (Emphasis added.) 1. Ms Dombrowski's report was also taken in account. In this report the applicant expressed remorse, which he had re-iterated in court by apologising to the victims of the offences. However, her Honour noted that his evidence in court had been that the offences were unplanned, which was contradicted by "the circumstantial evidence, the extensive telephone intercept, text message intercept material and agreed facts". 2. Her Honour subsequently addressed the applicant's subjective circumstances in more detail. The applicant had given evidence that he had a "significant" substance abuse issue, drinking up to 25 standard drinks and using two to three points of methamphetamine daily. Later, she addressed this issue again, noting that: "He confirmed what is noted in the psychological report in his evidence, that he started drinking alcohol at the age of 12. From the age of 20 he was drinking a couple of litres of wine a day. He also started smoking cannabis at the age of 12 and generally smoked as much as he could get his hands on. He began smoking methamphetamine at the age of 21 and had a significant level of usage by the time of these offences. He also experienced symptoms of drug-induced psychosis between 2016 and 2017, when he was aged 23 to 24 years. He did try to abstain from substance abuse, with the assistance of the Aboriginal Health Service. However, he experienced frequent relapse. Consistent with his sworn evidence, he told the psychologist that he had not used any substances since being remanded." 1. Her Honour noted that the applicant had been raised by his paternal grandmother in Coffs Harbour after his parents had failed to provide adequate care, although he denied abuse or neglect. Her Honour noted that both of his parents had been imprisoned at some stage in their lives. 2. Her Honour went on to note that, after the age of 13, the applicant had been without a fixed residence, "basically [living] on the street or in juvenile detention". Her assessment, on the basis of his grades at school and commencement of a TAFE course, was that he "has some prospects, if he can rehabilitate himself on release". She noted that his first suicide attempt was at the age of 12 and that he had a history of paranoia and hallucinations, which were likely to do with his drug use. The psychological report had also noted that his exposure to violence, substances, offending and social marginalisation put him at risk for developing a personality disorder. 3. As for the objective seriousness of the offences, her Honour had regard to the decision in Regina v Henry & Barber (1999) 46 NSWLR 346;[1999] NSWCCA 111 ("Henry") noting that the subject offences fell "well above the Henry range". She assessed them as falling "well into the mid-range of objective seriousness for offences of their kind". By reference to the Henry guideline, her Honour noted that the weapons used included knives and poles, and that both the applicant and Mr Gray had limited criminal histories. It was noted that there was no actual violence but a very real threat of violence and the victims were vulnerable and have suffered ongoing fear. 4. Her Honour noted that the pleas of guilty were limited by the "very strong case". As for the question of youth, her Honour went on to observe that none of the offenders are "young offenders", although the applicant came in close at 24 years of age. 5. Her Honour noted that another difference between these offences and the Henry guideline was the fact that these offences were carefully planned and "effective". Her Honour rejected the defence submission that they were "just a bunch of amateurs" and noted: "They would have known that this was serious criminal conduct, as evidenced by not proceeding with a number of planned armed robberies, in the presence of marked police vehicles in the vicinity and by use of coded conversations. The mere fact that so many co-offenders were acting in company suggests significant planning. In addition, there was, at times, as stated in the agreed facts some enthusiastic encouragement from one to another to get on with the 'fishing'. There are other factors that are relevant to the planning and premeditation here which elevates this above a Henry scenario. The discussions that involved a fishing code' could not regarded as brilliant or sophisticated, and in the long run there was limited utility to the code they employed. However, the flaws in their code were only evident after their escapades were fully investigated, as they happened to be in this case and extensively captured through the use of telephone intercepts. In addition, there were the occasional lapses mentioned in the summary of the agreed facts; including the use of the word 'lurk' and direct reference to armed robbery. However, the use of the 'fishing code' suggests that each of these men understood what it meant and suggests they were involved in the planning and discussion at some length and over an extended period." 1. Her Honour also had regard to the organisation of transport, clothing, weapons and disguises and the fact that they drove some considerable distance to the target premises where they waited and watched until close to closing time. The offences were spaced over a 14 month period and were carried out at different places to avoid police. The amount taken was substantial and the offenders were motivated by profit. 2. Her Honour went on to consider the question of parity and observed: "I have had regard to the principle of parity. The objective offending in relation to each of the offenders with respect to the offences was very similar in terms of their roles and their involvement, as demonstrated by their discussions. There is a clear difference, as I have already mentioned, in the subjective circumstances between Leonard Hoskins, on the one hand and Dungay and Gray on the other. Leonard Hoskins is significantly older, which carries with it a greater degree of maturity and had significantly greater experience in carrying out offences of this magnitude. His criminal record does not at all assist him. Otherwise, in terms of their subjective circumstances, there are many similarities in terms of their dysfunctional upbringings and the long term impact of that upon them. I will not detail those matters again." 1. Her Honour was satisfied of remorse and found "to a limited degree" special circumstances", on the basis of the need for ongoing supervision and that this was their first time in full-time custody. 2. Mr Gray received an identical aggregate sentence to the applicant. Mr Hoskins received an aggregate sentence of 14 years and 6 months imprisonment with a non-parole period of 10 years. Applicant's submissions 1. As noted above, Ground One was conceded. 2. The applicant submitted, in relation to Ground Two, that the sentence was manifestly excessive, having regard to his "significantly deprived" upbringing. This ground relied on the principles enunciated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ("Bugmy"), R v Fernando (1992) 76 A Crim R 58; R v Millwood [2012] NSWCCA 2. The applicant submitted that there was evidence accepted in this case that demonstrated the contribution of the applicant's "deprived and dysfunctional" upbringing to his offending. This was in the form of Ms Dombrowski's report. The applicant contrasted this with the sentencing judge's finding extracted above at [56]. 3. The applicant further emphasised that his immaturity justified a lesser sentence, referring to R v Mills [1998] 4 VR 235 at 241; R v Hearne (2001) 124 A Crim R 451 at [27]; R v GDP (1991) 53 A Crim R 112; R v DM [2005] NSWCCA 181. The applicant also referenced the finding in BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 and submitted that it was erroneous for her Honour to find that the applicant was "close" to being a young offender but that she would not "strictly classify him as young". Her Honour also differentiated the applicant and Mr Hoskins by referring to Mr Hoskins' greater level of maturity, but did not significantly adjust the applicant's sentence on account of this. 4. Finally, the applicant submitted that her Honour's starting point for these offences of 7 years imprisonment was substantially higher than that indicated in the guideline judgment of Henry. Such a high sentence was not justified, according to the applicant, as his subjective case mitigated the degree of planning involved and cash taken. Using Judicial Commission statistics, the applicant submitted that 6 years and 4 months for Count 1 was equal to the highest sentence recorded on the statistics. Additionally, in only 1% of cases recorded in the statistics was more than a 6 year indicative sentence imposed for a robbery offence. 5. Finally, the applicant submitted that the substantial degree of accumulation implicit in the aggregate sentence had a crushing effect upon him given his youth, prior background and criminal history. 6. As for Ground Three, the applicant submitted that his sentence was too high when compared with Mr Hoskins' sentence. They were both sentenced for the same offences. He was a co-offender with the applicant and Mr Gray for two of the counts and he was sentenced for an additional robbery (the applicant was not sentenced for this offence). He also had two of the robbery conspiracies on a Form 1. 7. The applicant submitted that there was an error in terms of parity because despite his dysfunctional subjective case, Mr Hoskins was older than the applicant, he had a more severe criminal history and he had more remote prospects of rehabilitation. Crown submissions 1. The Crown conceded Ground One for reasons provided below. 2. As for Ground Two, the Crown submitted that there was no doubt that, as an experienced criminal law judge, the sentencing judge was well aware of the principles enunciated in Bugmy and took them into account. This was demonstrated by her Honour's detailed summary of the background of each of the offenders, including the comments extracted above at [56]. The Crown submitted that while the sentencing judge did not refer to "moral culpability" directly, it is clear from a full and fair reading of the reasons on sentence that her Honour was satisfied that there was a connection between the applicant's background and his commission of the subject offences and that this was taken into account. 3. In relation to the applicant's age, it was submitted that the applicant had not advanced evidence that he lacked maturity. Furthermore, her Honour had acknowledged age as a factor that differentiated the applicant and Mr Hoskins. 4. In terms of the applicant's submissions about the indicative sentences, the Crown submitted that this Court should be cautious when comparing the undiscounted indicative sentences imposed in this case and the sentence range indicated by Henry. The Crown pointed out that the statistics cited by the applicant were of reduced utility as they related to sentences imposed by the District Court within a period of less than 9 months from 24 September 2018 until June 2019. 5. The Crown also submitted that Count 1 was not less serious when compared to the other counts, as it involved (as all the offences did) targeting premises at closing time when it was likely that staff members were still inside. Additionally, Count 1 involved the theft of $32,815, which was substantially more than the proceeds of the Count 2 offence. It also carried a SNPP. Count 3 was also serious as it involved threats of violence and very substantial proceeds. 6. In oral submissions, counsel for the Crown added that her Honour correctly took into account the "business-like manner" of the robbery and degree of planning. In relation to the submission that no-one was put in fear, the Crown emphasised that someone was present within the Wauchope Country Club at the time the applicant and his co-offenders broke in, and this person left. 7. As for Ground Three, the Crown pointed out that Mr Hoskins' aggregate sentence was 2 years and 6 months longer than that imposed on the applicant and an aggregate non-parole period that was two years longer. Further, Mr Hoskins had two offences taken into account on a Form 1. Given the fact that his prospects of rehabilitation were lower, his commission of the offence on conditional liberty and his age, the Crown submitted that the difference between the sentences was open to her Honour in the exercise of her discretion. Consideration Ground One: Error under Children (Criminal Proceedings) Act 1. As McClellan CJ at CL observed in KT v R [2008] NSWCCA 51 at [22]: "….In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation". 1. This principle is reflected in the Children (Criminal Proceedings) Act, which sets out the procedures and penalties in relation to the sentencing of children in the Children's Court. 2. Regrettably, it is not uncommon for adult offenders to come before this Court with criminal histories spanning back to when they were children. Such records can be before the court for different reasons. In the present case it was said to be relevant to show the applicant's disadvantaged childhood, in other cases it may be relevant for other purposes of sentencing. When such records are tendered by the Crown it is important to be aware of the statutory provisions in the Children (Criminal Proceedings) Act which limit the circumstances in which matters on a child's criminal history dealt with in the Children's Court can be used against them when later being sentenced as an adult. 3. Section 14 of the Act provides that: 14 Recording of conviction (1) Without limiting any other power of a court to deal with a child who has pleaded guilty to, or has been found guilty of, an offence, a court— (a) shall not, in respect of any offence, proceed to, or record such a finding as, a conviction in relation to a child who is under the age of 16 years, and (b) may, in respect of an offence which is disposed of summarily, refuse to proceed to, or record such a finding as, a conviction in relation to a child who is of or above the age of 16 years. (2) Subsection (1) does not limit any power of a court to proceed to, or record such a finding as, a conviction in respect of a child who is charged with an indictable offence that is not disposed of summarily. 1. The practical effect of s 14 is that if a court has previously found that a child aged less than 16 years dealt with in the Children's Court to be guilty of an offence, no conviction is to be entered. If the child is over the age of 16 years the Children's Court has a discretion as to whether to enter a conviction. 2. Section 15 of the Act then provides that: 15 Evidence of prior offences and other matters not admissible in certain criminal proceedings (1) The fact that a person has pleaded guilty to an offence in, or has been found guilty of an offence by, a court (being an offence committed when the person was a child) shall not be admitted in evidence (whether as to guilt or the imposition of any penalty) in any criminal proceedings subsequently taken against the person in respect of any other offence if— (a) a conviction was not recorded against the person in respect of the firstmentioned offence, and (b) the person has not, within the period of 2 years prior to the commencement of proceedings for the other offence, been subject to any judgment, sentence or order of a court whereby the person has been punished for any other offence. (2) Subsection (1) or (3) does not apply to any criminal proceedings before the Children's Court. (3) The fact that a person has been dealt with by a warning, caution or youth justice conference under the Young Offenders Act 1997 (being in respect of an alleged offence committed when the person was a child) is not to be admitted in evidence (whether as to guilt or the imposition of any penalty) in any criminal proceedings subsequently taken against the person in respect of any other offence. 1. The practical effect of s 15 is that if a child is found guilty in the Children's Court but without any conviction entered and the offender is not subject to any other judicially-imposed punishment for a period of two years then the finding of guilt is not admissible in any subsequent criminal proceedings. 2. The applicant's criminal history discloses that he was first dealt with for criminal offending in the Children's Court when he was 14 years of age. I have extracted his Children's Court history above at [34]-[40]. In addition, an affidavit affirmed by Philippa Winston on 3 June 2020 was before the Court annexing various documents from the Children's Court. These documents confirm that no conviction was or could have been entered in relation to all of the offences committed before he turned 16. This includes the offence of aggravated break, enter and steal for which he was placed on a control order. 3. Furthermore, the 6 month bond the applicant received for resisting a police officer expired on 13 January 2015. He was not charged with the current offences until 8 May 2017 more than two years after his last court order expired. 4. Although the relevance of ss 14 and 15 of the Act was brought to the attention of the sentencing judge (extracted above at [54]), her Honour went on to refer to some of these matters as convictions in her Sentencing Remarks when she observed that the applicant had a "record" for offences, including "a serious offence of breaking and entering" as a juvenile. The applicant was not convicted of these offences. They were not admissible in the sentence proceedings. A similar error was made in Siddiqi v Regina (Commonwealth) [2015] NSWCCA 169. 5. The Crown conceded that error is established under this ground. It further accepted that the proper inquiry is not whether, as a matter of fact, the error influenced the outcome. As Basten JA explained in Newman (a pseudonym) v R [2019] NSWCCA 157 (with Hamill and Lonergan JJ agreeing) at [11], an applicant does not need to establish that an error has had an actual effect on the sentence imposed; only that it had the "capacity" to do so: see also Ibbotson (a pseudonym) v R [2020] NSWCCA 92. 6. I am satisfied that the Crown concession was properly made and should be accepted. I would uphold Ground One. Ground Two: Manifest excess 1. In light of the need to exercise the sentencing discretion afresh, I do not consider it necessary to consider Ground Two, which alleged latent rather than patent error. Despite this, I will consider the respective submissions in relation to manifest excess as part of the re-sentencing process. Ground Three: Parity 1. As Gibbs CJ observed in Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 at 609: "It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account." 1. His Honour went on to observe that: "…the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done." 1. Mason J observed the following in Lowe v The Queen at 610: "Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community." 1. In Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 Dawson and Gaudron JJ later observed at 301: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them: in Lowe v The Queen (1984) 154 CLR 606; [1992] HCA 29 at 610-611 per Mason J. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated." 1. As Gummow J observed in Postiglione v The Queen at 323, the application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The test is an objective one. 2. In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 French CJ, Crennan and Kiefel JJ observed at [30] that Lowe v The Queen and Postiglione v The Queen were concerned with the application of the "parity principle" to persons charged with the same offences arising out of the same criminal conduct or enterprise. In that context their Honours went on to observe: "Those decisions are not authority for the proposition that the principle applies only to persons so charged. The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application." 1. This Court has stated on a number of occasions that, where possible, the same sentencing judge should sentence all co-offenders. As Button J observed in Huckstadt v R [2016] NSWCCA 22 at [90] (Johnson and Fagan JJ in agreement), when the same judge hears both matters at the same time, "…[he or she] will be in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way": see also Usher v R [2016] NSWCCA 276 at [71]-[72]. 2. With these principles in mind, I turn to consider whether it could be said that the applicant has a justifiable sense of grievance given the aggregate sentences imposed on Mr Hoskins. 3. It could not be said that her Honour ignored the question of parity. On the contrary, she specifically had regard to it. Her Honour found that the objective offending in relation to each of the offenders was very similar in terms of their roles and their involvement. No issue is taken with that finding in this court. 4. Her Honour went on to observe that there was a clear difference in the respective subjective circumstances between Mr Hoskins, on the one hand, and the applicant and Mr Gray, on the other. Her Honour was satisfied that Mr Hoskins was significantly older with a greater degree of maturity and greater experience in carrying out offences of this magnitude. Nor did his criminal record assist him. Although her Honour found that there were many similarities in terms of the co-offenders' respective dysfunctional upbringings, she made stronger findings in relation to Mr Hoskins than the applicant and/or Mr Gray. 5. The applicant received the same sentence as Mr Gray. The only difference between Mr Gray and the applicant is that the applicant also had an additional offence taken into account on a Form 1. No complaint is made in relation to the application of the parity principle insofar as Mr Gray is concerned. 6. The complaint as to disparity concerns the sentence imposed on Mr Hoskins. Although the applicant and Mr Hoskins were each sentenced in respect of a robbery in company offence for which the other was not, it is not suggested on behalf of the applicant that the character and seriousness of these offences were anything other than similar. The nub of this ground turned on the differences between the subjective factors as between the two offenders. 7. Her Honour noted the differences between the subjective factors relevant to the sentencing of both Mr Hoskins of the applicant. It was noted that Mr Hoskins was the oldest of the offenders, being 35 to 36 years of age at the time of the offending. Her Honour also noted that, although Mr Gray and the applicant had no extensive criminal record as adults, Mr Hoskins had what was described by the sentencing judge as an "atrocious criminal record" and he committed his offences whilst on conditional liberty. Her Honour described his record as follows: "He was on parole at the time for an armed robbery offence in Queensland, for which he had served a custodial term. He served a custodial term in 2009 for an offence of common assault; another custodial term in New South Wales in 2002, when he was sentenced for an offence of aggravated robbery with wounding to a period of six years and nine months with a non-parole period of four years. I have had the benefit of reading his Honour Judge Freeman's sentencing remarks made on that occasion and it is apparent that not a lot has changed since then in Leonard Hoskins' behaviour, other than perhaps an escalation of his offending, demonstrated in this string of serious matters. In 2002 he was sentenced for another serious offence of maliciously inflicting grievous bodily harm and he was sentenced again to a long period of imprisonment, comprised of a total term of six years with a non-parole period of four years. That offence related to a dreadful attack upon another prison inmate. He has a record that would suggest that he has become institutionalised; which is relevant to take into account in considering the sentence that should be imposed." 1. Although her Honour was satisfied that all three offenders had deprived childhoods, in setting out their respective cases it is evident that her Honour considered Mr Hoskins to be one of profound deprivation. Her Honour noted that Mr Hoskins was born into an environment of cannabis cultivation and firearms in the home. Family and Community Services investigated his home life after he took several bullets to school to show his friends. He was often unable to sleep in his own bedroom at night because large quantities of cannabis were drying there. His mother and aunt always gave him any cannabis he wanted. 2. Mr Hoskins was made a ward of the state and placed in foster care at the age of eight due to his mother's alcoholism and neglect. Following his removal, he built animosity towards authority blaming the State for removing him from his home. Her Honour noted the evidence that the applicant suffered genuine distress as a child because of feelings of abandonment and rejection. Although he described his foster family as "nice", he did not form a relationship with his foster father who was "not averse to using physical discipline". He ran away from his foster home at the age of 12. 3. Mr Hoskins' education was severely disrupted. He attending four different primary schools and failed to develop any stable friendships. At one stage, he physically assaulted a teacher. He only lasted two weeks in High School before he was expelled. From the age of 12 or 13, he had significant substance abuse problems including the fact that he would regularly blackout from his drug use. Significantly, his deficits in executive functioning are described as worse than 99% of his peer group. As her Honour observed, he is at risk of becoming institutionalised. 4. Her Honour found that Mr Hoskins' upbringing was "rather more dysfunctional" than his co-offenders. Her Honour also found that his prospects of rehabilitation were "somewhat more remote" than his younger co-offenders. 5. It was submitted on behalf of the applicant that there should have been a greater disparity between the aggregate sentence imposed on the applicant and that imposed on Mr Hoskins given that Hoskins was no longer a young man, had a much worse criminal history and had more remote prospects of rehabilitation. 6. I have given consideration to the matters identified on behalf of the applicant to support his contention that he should have received a sentence significantly less than Mr Hoskins. Her Honour identified the factors relevant to the applicant's sentence, discussed their significance and made a value judgment as to what was the appropriate sentence given all the factors of the case. As the High Court confirmed in Markarian v The Queen (2005) 228 CLR 357 at 377; [2005] HCA 25 at [51] and Muldrock v The Queen (2011) 244 CLR 120 at 131; [2011] HCA 39 at [26], this is the proper approach to take. In applying a process of instinctive synthesis her Honour had regard to Mr Hoskins' significant deficits in executive functioning, his risk of becoming institutionalised, his "more" dysfunctional background, his greater criminal history, his offending on conditional liberty, his age, and arrived at the sentence she did. 7. I am satisfied that the differences between the sentence imposed on the applicant and that imposed on Mr Hoskins are explicable by the different subjective features relevant to each offender. It is to be accepted that some of Mr Hoskins' subjective factors pulled in different directions. Despite this, I am not satisfied that any error is disclosed in the manner in which her Honour dealt with the issue of parity. That is, I am not satisfied that the applicant has established that, viewed objectively, he has a justifiable sense of grievance in regard to the sentence imposed on himself compared with that imposed on Mr Hoskins. 8. I would dismiss Ground Three. Re-sentence 1. As noted above, since error has been found under Ground One, it is necessary for this Court to exercise its own independent sentencing discretion for the purpose of determining whether a lesser sentence should be imposed under s 6(3) Criminal Appeal Act 1912 (NSW): Kentwell v The Queen (2014) 252 CLR 601 at 618; [2014] HCA 37 at [43]. 2. A number of affidavits were tendered to be relied upon in the event of re-sentence. None of the deponents were required for cross-examination and no objections were made to any parts of the affidavits. 3. An affidavit from Philippa Winston, solicitor at the ODPP, affirmed 11 June 2020, annexed misconduct reports in relation to the applicant's behaviour in custody since he was sentenced. Those documents reveal two misconduct incidents. On 3 January 2020, the applicant engaged in physical combat with another prisoner and on 26 January 2020 he was disciplined for trying to manufacture alcohol in his cell through the use of fermented fruit. 4. The applicant's solicitor, Caitlin Akthar, affirmed an affidavit on 5 June 2020 annexing medical reports from Justice Health. These reports indicated that on 11 January 2020 he reported as dizzy, light-headed and paranoid and sought psychiatric assistance at that time. 5. The applicant swore two affidavits. In his first affidavit sworn on 5 June 2020 he explained that he had participated in educational programs and had already completed his Certificate I in Skills for Vocational Pathways and was currently doing his Certificate II in that area. He was also trying to learn about his culture and language. As for his health, he explained that his medication for schizophrenia was making him put on weight. This increased weight made him a risk for diabetes, which is a significant problem in the Aboriginal community. He went off his medication but later felt dizzy, had trouble breathing and thought he was having a heart attack. Since then he has been given different food and has been put back on olanzapine. He stated that he is now "doing well" with his symptoms. 6. The applicant further explained that he is presently being treated properly for his mental health and is no longer taking drugs. This means that he has had to deal with some of his childhood memories. He now recalls an uncle sexually abusing him on a beach near Coffs Harbour when he was a child. He decided to report this to police but discovered that his uncle had died. He realises that he had previously blocked out those memories by taking drugs. 7. The applicant also explained that since COVID-19 he has had no personal visits as they are not allowed. He cannot undertake "video chats" with his family because they do not have the devices to do so. He has had no visits since March. As for his future plans, he proposes to do a personal training course at TAFE and get involved in cultural dancing and language. 8. In a second affidavit sworn on the day of the hearing the applicant responded to the conduct charges referred to in Ms Winston's affidavit. In relation to the fight on 3 January 2020 he explained that the other person started it and he acted in self-defence. He also noted that he was feeling ill that day and later ended up being admitted to the hospital. In relation to the alcohol manufacture charge, it was noted that that occurred on "invasion day" and he did not want to think about that. His new medication had not "kicked in" and he felt overwhelmed. He wanted to get drunk and forget. He noted he has not been in any difficulty since that time. 9. In circumstances where none of this material was challenged, the Court accepts it and will have regard to it in re-sentencing the applicant. 10. It was not suggested that I would make any different findings to her Honour in relation to the objective seriousness of the offences. Her Honour found the offending on all counts to be mid-range and well above the Henry guideline. I would sentence the applicant based on the same findings. It was submitted on behalf of the applicant that, even accepting these findings, regard should be had to the fact that there was no violence involved in the offending, apart from one of the offenders grabbing a person by the shirt during the incident comprising Count 2. 11. Although I accept that the violence involved was threatened rather than actual, the threats were very real. The experience of the Court is that vulnerable people working late in hotels and clubs can suffer significant ongoing trauma as a result of such robberies. This case is no different. Her Honour set out the contents of the three victim impact statements made in this matter. Her Honour did not have regard to them in the manner permitted by s 30E(3) of the Sentencing Act and I do not propose to do so either. The fact that it is common for robbery victims to react in this way is reflected in the maximum penalty for this offence. As Spigelman CJ stated in Henry at [99]: "Armed robbery is not simply a crime against property. It is a crime against persons. Furthermore, the fear engendered by the perpetrator of this crime, together with the continued adverse effects on its victims, establish armed robbery to be a serious crime which requires condign punishment." 1. The thrust of the applicant's submissions on re-sentence is that this Court would place significant weight on four mitigating factors which would lead to the imposition of a lesser sentence than that imposed by the sentencing judge. Those four factors are: his age, his childhood of dysfunction, his mental condition and his criminal and custodial history to date. 2. As for his age, the applicant placed reliance on the decision in BP v R where Hodgson JA observed the following at [5] as to when an offender can be described as a "young" offender: "In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime." 1. It is to be accepted that young men develop emotional maturity and impulse control at different ages; some prior to reaching adulthood and some later. But there was no evidence placed before the court as to the applicant's maturity for his age or otherwise. Although the report of Ms Dombrowski was helpful in setting out the applicant's history and current diagnosis, it was not suggested therein that he was immature for his age. As Beech-Jones J recently observed in Nabalarua v R [2020] NSWCCA 68 at [55]-[56] (Simpson AJA and N Adams J agreeing): "Generally, the principles applicable to youthful offenders have little or no application to offenders in their twenties, although a lack of maturity and impulse control may still be operative at those ages (see KT v R [2008] NSWCCA 51 at [22] to [26] per McClellan CJ at CL; Johan at [91]; cf BP at [5]). In this case, no submission was made to the sentencing judge that any particular principle apposite to youth offenders was apposite to the applicant." 1. In re-sentencing the applicant, I have had regard to the fact that the applicant was the youngest of the offenders at 23-24 years old but I would not ameliorate the sentence significantly on the basis of his youth. 2. It was also submitted that greater weight should be given to the Bugmy factors on re-sentence. It was not submitted that the sentencing judge erred in the application of the principles of Bugmy in this case. No ground of appeal was brought on such a basis. Rather, it was submitted that greater weight should have been placed on it as a possible reason for the alleged manifest excess. I will consider that submission further below. Application of Bugmy principles 1. I have summarised the applicant's and the Crown's submissions on the application of Bugmy to the applicant's sentence above at [71] and [78]. 2. In Bugmy the High Court considered the relevance of an offender's deprived background to offending as an adult. On that issue the Court observed the following at [44] (footnote omitted): "Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender." 1. Following from this decision it is settled that the effects of "profound childhood deprivation" are to be given "full weight" in every sentencing decision. As Simpson AJA noted in R v Irwin [2019] NSWCCA 133 at [3]: "[a]pplication of the Bugmy principles is not discretionary". Hoeben CJ at CL had earlier commented in Ingrey v R [2016] NSWCCA 31 that consideration of the Bugmy factors is not optional, although once the factors are taken into account, countervailing factors such as the protection of the community may reduce their weight (at [35]). 2. Although Bugmy factors must be given "full weight" in every sentencing decision, this does not mean that they need to be given the same weight in every case. The extent to which the applicant's moral culpability is reduced will vary in each case and sometimes it will not be reduced at all but instead taken into account in other ways. The purposes of sentencing are numerous and often difficult to apply when the objective and subjective factors seem to point in different directions, as the High Court observed in Bugmy at [44]. Although these purposes are well known, they warrant reproduction here. 3. Section 3A of the Sentencing Act provides that: The purposes for which a court may impose a sentence on an offender are as follows— (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 1. If there is a basis for a finding that an offender's moral culpability is reduced then the purpose of general deterrence (s3A(b)) may be of less significance, although the need to protect the community may be higher (s 3A(c)). Each case will turn on its own facts. 2. In Christopher Ross v R [2019] NSWCCA 314, Basten JA (with whom Macfarlan JA and Campbell J agreed) considered the Bugmy principles in the context of an offender who had been sentenced for a domestic violence offence. Complaint was made that the trial judge had failed to give sufficient weight to the applicant's subjective factors. The appeal was dismissed. After referring to the decisions in Bugmy, Fernando and Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, Basten JA made the following observation at [44]-[45] (footnotes omitted): "How this principle was to be applied in cases involving domestic violence within an Aboriginal community, was discussed by the High Court in the companion case, Munda v State of Western Australia. Mr Bugmy had attacked a prison officer; Mr Munda had killed his de facto wife. The Court addressed the tension between accepting a reduction in moral culpability due to the disadvantaged background of the offender, and the need to provide the victim of violence with "such protection and vindication as the criminal law can provide." This language was explicated as the need 'to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community's disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence.' At the same time, the Court accepted that general deterrence may have little role in sentencing for a crime which is not pre-meditated and where 'prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of misconduct.' These principles reflect an irresolvable tension; it will only be in an unusual case that an appeal court will be able to conclude that a sentencing judge, who has recognised the relevant principles, has in some sense failed to apply them, so that the error is detectable in the sentence imposed. This is not such a case." 1. This passage by his Honour concerned the application of Bugmy principles in the context of unpremeditated crimes of violence which arise out of "prolonged and widespread social disadvantage". A number of other decisions of this Court have also held that moral culpability will not usually be reduced in cases where careful planning is involved, such as cultivation and drug supply matters. In Taysavang v R; Lee v R [2017] NSWCCA 146, this Court (Simpson JA, with whom McCallum J and Fagan J agreed) considered a ground of appeal alleging that the sentencing judge had erred in failing to reduce the moral culpability of the offender because of his deprived upbringing. The applicant was being sentenced for selling methamphetamine. The sentencing judge had made the finding that: "The offender whilst he comes from a disadvantaged background and is poorly educated, knew full well what he was doing. His mental health issues are not such that it played any part in the commission of the offence and his motivation was to receive money to fuel his drug habit." 1. The Court rejected the argument that there was any error in such a finding and went on to state the following at [42]-[43]: "It was sought to extend this principle so as to impute a reduction in moral culpability for the offence of drug supply which is under consideration here. As her Honour found, the offence involved planning and organisation rather than impulsivity. There was nothing in the evidence to suggest that frustration on the part of Mr Taysavang gave rise to unconsidered action on his part. It was not an offence of a kind that could sensibly be regarded as flowing from dysfunctional tendencies subconsciously absorbed from experience within the offender's family in early childhood. Contrary to the appellant's submission her Honour's finding that he 'knew full well what he was doing' was a cogent reason for not finding any reduction in moral culpability upon this principle. The material before her Honour did not suggest that the care Mr Taysavang had received from his parents up to the age of 5 or from his grandparents over the next 9 years was in any way deficient or that it had predisposed him to impulsive wrongdoing, in the way contemplated by the decision in Bugmy v The Queen." 1. A similar approach was taken by this Court in Crowley v R [2017] NSWCCA 99. In that matter, the applicant appealed against his sentence for the cultivation of not less than the commercial quantity of cannabis. The asserted error in the sentencing process was that the sentencing judge had failed to take into account his childhood history of alcohol abuse and violence, his lack of formal education, and a long record of convictions and incarceration, including for offences of violence. Adamson J (Johnson and Campbell JJ agreeing) rejected this submission, distinguishing Bugmy as a case which involved acts that were "impulsive, violent and against [the offender's] interest". Her Honour stated the following at [43]: "…By contrast, the conduct of the applicant in the present case was deliberate, planned, and, potentially, profitable. It required substantial investment in infrastructure (some of which was already in place) and electricity. It also required considerable time and skill to grow seedlings from seeds, and plants from cuttings struck from mature plants. It is not a mitigating factor that the applicant's parents smoked cannabis when the offence to which he pleaded guilty was the cultivation of not less than a commercial quantity of cannabis. The applicant's education and employment history showed that, whatever part his parents' drug-taking had played in his childhood, he was able to make his way in the world, gain an education and work as a real estate agent for several years. That he was able to stop smoking cannabis when he was away from his parents' place shows that he could control his use." 1. At [44], her Honour further noted: "…Unlike the appellant's conduct in Bugmy v The Queen, the cultivation of a commercial quantity of cannabis is hardly an impulsive, counterproductive act to the consequences of which a person can be said to be inured as a result of childhood influences. Rather it is a skill which requires knowledge, diligence, equipment, and consistent application." 1. Similarly, in Katsis v R [2018] NSWCCA 9, Hoeben CJ at CL observed the following at [105]: "When one compares [the applicant's] upbringing with the circumstances surrounding the upbringing of the offenders in Bugmy v R, Munda v Western Australia [2013] HCA 38; 249 CLR 600 and even the less extreme circumstances which surrounded the offender in Ingrey v R, the applicant has failed to establish a background and upbringing which could be properly characterised as amounting to deprivation. Specifically, there was no sexual abuse at home and there was no real link established between his use of marijuana, LSD and alcohol on weekends and his upbringing." 1. These decisions suggest that a "link" needs to be established between the childhood deprivation and the offending behaviour in order for the Bugmy principles to apply. In Perkins v R [2018] NSWCCA 62, Hoeben CJ at CL stated the following at [42]: "On my reading of Bugmy v R it is not sufficient to simply establish some elements of a deprived upbringing and/or the presence of domestic violence unless there is evidence or it can be properly inferred that such exposure 'may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced.' (Bugmy at [44])" 1. The other two members of the Court in Perkins v R did not agree. White JA was of the view that Bugmy did "not provide a clear answer" to the question of whether causation needed to be established as between the circumstances of deprivation and the offending. After referring to Fernando, his Honour stated at [77]: "In Bugmy the High Court neither endorsed Mr Bugmy's submission (at 581) that no causal connection between the offender's aboriginality and the commission of the offence was needed, nor the submission of the Crown (at 579) that for systemic factors establishing profound social deprivation to diminish the moral blameworthiness of a particular offence, they must be causally linked. The plurality (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) said that if an offender seeks to rely on his or her background of deprivation in mitigation of sentence, he or she needs to point to material tending to establish that background (at [41]), but did not say that if such background of deprivation is established it will (as distinct from may) be a mitigating factor. Nor did the plurality say that if such a background of deprivation is established it will only be a mitigating factor if a causal link between the background of deprivation and the offence is established. Gageler J said (at [56]) that 'The weight to be afforded to the effects of social deprivation in an offender's youth and background is in each case a matter for individual assessment'." 1. White JA concluded that the High Court did not lay down requirement for a causative link, with which Fullerton J agreed (at [100]). 2. In Judge v R [2018] NSWCCA 203, White JA made similar findings at [30]-[32] (with which Bellew and Wilson JJ agreed). In that decision this Court declined to find error arising from the sentencing judge's refusal to find that the applicant's dysfunctional upbringing was an explanation for his offending behaviour. The Court was satisfied that the sentencing judge had had regard to the applicant's dysfunctional childhood but that did not mean that it necessarily meant his moral culpability was reduced. In that context, White JA observed at [31]: "There was no error in the primary judge's finding that Mr Judge's dysfunctional background did not explain his criminality on the night of the offence. In so finding, the primary judge did not discount Mr Judge's background as irrelevant to the sentencing discretion. Rather, he declined to make a finding of a causal relationship between the background of social deprivation and the offending." 1. The fact that a causal link may not be needed in order to have regard to Bugmy factors was endorsed in R v Irwin [2019] NSWCCA 133. Walton J noted at [116] that: "…The social deprivation and abuse suffered by the respondent was recognised by Mr Borkowski and Dr Furst and contributed to their diagnoses of the psychological conditions suffered by the respondent. It was unnecessary in those circumstances to require, as a necessary condition to permit mitigation of sentence, a causal link between that background and the offending. I accept, with respect, the observations of White JA in Perkins as to the significance of a background of social deprivation to sentencing." 1. Having regard to these principles, it seems to me that although the effects of childhood deprivation are to be given full weight in every sentencing decision, that does not mean that moral culpability must be reduced in every case. Full weight can be given to such a childhood in other ways as part of the process of instinctive synthesis. Although a causal link may not be required, it also seems to be that if such a link exists then inevitably there will be a reduction in an offender's moral culpability: Kliendienst v R [2020] NSWCCA 98. On the other hand, the absence of such a link does not mean that the Court does not give full weight to a childhood of profound deprivation if that is established on the evidence. 2. I am satisfied that the applicant had a childhood of profound deprivation. In addition to the material before the sentencing judge, there is now further material before the court to show that the applicant was the victim of child sexual assault. Although not put in these terms, that might explain not only his recourse to drugs at a young age but also his attempted suicide by hanging at the age of 12. 3. The applicant's mental health issues also seem to arise from his unfortunate childhood. He was assessed as an intelligent and articulate man by Ms Dombrowski. His mental health issues arise from drug psychosis (self-medicating) and, as Ms Dombrowski observed, he is at risk of the developing a personality disorder (Cluster B (Dramatic/Erratic)). Ms Dombrowski put it in these terms: "His experience of a poorly structured and transient lifestyle during adolescence (with limited parental supervision or guidance), exposure to peers and community members who normalise the use of violence, substances and offending, and social marginalisation have variously contributed to the development of his personality pathology." 1. Since being dealt with in the Children's Court it is to be accepted that the applicant had no significant criminal history, is an adult and that this is his first time in adult custody. I would not have regard to his Children's Court record in this regard. This means that he came before the Court with a very limited criminal history. There was no evidence of any drug charges in custody since being sentenced consistent with his vow to stay off the drugs. His prospects of rehabilitation remain reasonable. 2. I am satisfied he is remorseful and I too would find special circumstances for the same reasons as her Honour. I would allow for a slightly greater degree of notional concurrence than her Honour. I would apply the 10% discount to the indicative sentences but have rounded slightly to avoid figures comprising years, months and days. 3. As for his mental health, the evidence before her Honour was that although the applicant had suffered from drug-induced psychosis in the past, he had come off medication for that since being in custody and he did not report any ongoing issues to her. The additional evidence suggests that he has had a relapse but he describes receiving suitable metal health assistance from Justice Health. 4. As is often the case when exercising the sentencing discretion, there are factors pulling in different directions in this matter. The criminality involved is very serious. The applicant participated in an ongoing criminal enterprise in company with weapons putting vulnerable people in fear and obtaining large amounts of money. On the other hand, the applicant has had a deprived childhood, does not have a significant criminal record before these serious offences, has mental health issues, is an intelligent man with reasonable prospects of rehabilitation and is remorseful. 5. I have had regard to all of these matters and have arrived at an aggregate sentence which is lower than that imposed on him by the sentencing judge. ORDERS 1. I would propose the following orders: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The sentence imposed on the applicant in the District Court on 27 May 2019 is quashed. In lieu thereof the following aggregate sentence is imposed under s 53A of the Crimes (Sentencing Procedure Act) 1999 (NSW): 10 years of imprisonment to date from 28 June 2017 and expire on 27 June 2027 with a non-parole period of 6 years and 6 months to expire on 27 December 2023. 1. Pursuant to s 53A(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) the indicative sentences are: Count 1: 5 years and 6 months with a non-parole period of 3 years and 8 months. Count 2: 5 years and 5 months. Count 3 (Taking into account the four Form 1 matters) 6 years and 6 months. Amendments 28 August 2020 - Non-parole expiration period - 27 December 2023 instead of 26 December 2023 28 August 2020 - Coversheet - notation added. 31 August 2020 - Minor typographical correction 02 September 2020 - Minor typographical correction DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 September 2020