Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lin v R [2023] NSWCCA 304 Hearing dates: 3 November 2023 Decision date: 29 November 2023 Before: Ward P at [1]; Rothman J at [2]; Davies J at [69] Decision: (1) Leave to appeal granted. (2) Appeal dismissed. Catchwords: CRIME – sentence appeal – finding of lack of remorse based on lack of candour – finding open – finding of attempts to minimise role – finding open – parity – no error – appeal dismissed Legislation Cited: Criminal Code Act 1995 (Cth); s 11.2A(1) Customs Act 1901 (Cth); s 233BABAD(2) Cases Cited: BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 Brzozowski v The King [2023] NSWCCA 129 L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157; [1968] HCA 90 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 Patel v R [2022] NSWCCA 93, (2022) 366 FLR 314 R v Lyon (1906) 3 CLR 770; [1906] HCA 17 Raptis, Lilimbakis & Sinclair v R (1988) 36 A Crim R 362 Category: Principal judgment Parties: Bingchun Lin (Applicant) Rex (Crown) Representation: Counsel: J S Stratton SC (Applicant) A Chhabra / R Thampapillai (Crown) Solicitors: Dwellaw (Applicant) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2020/00356594 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 26 May 2023 Before: Wass SC DCJ File Number(s): 2020/00356594 HEADNOTE On 26 May 2023, the applicant was sentenced in the District Court for an offence of possession of tobacco products, knowing that the goods were imported, with intent to defraud the revenue, contrary to s 233BABAD(2) of the Customs Act 1901 (Cth) with s 11.2A(1) of the Criminal Code Act 1995 (Cth). He was sentenced to a term of imprisonment for 2 years, with a direction that he be released after 1 year on a Recognisance Release Order in the sum of $1,000 without surety. The agreed facts on sentence were that the applicant and a co-offender possessed tobacco products during the period of 28 August 2020 to 8 December 2020, while knowing that those products had been imported with an intent to defraud the revenue. The products were shipped in packages addressed to the applicant, the co-offender, or a third person, and were stored in storage units rented by the applicant and the co-offender. When police intercepted by the applicant and the co-offender departing one of these storage units, they were travelling in a car containing 64.05kg of loose-leaf tobacco and 280 packets of cigarettes. The co-offender told police that the loose-leaf products were tea. The applicant was silent. Each man was found to have telephone activity which was indicative of the sale of smuggled tobacco. The applicant appealed against his sentence on three grounds: first that the sentencing judge had erred in finding that the applicant lied to police, and in treating that finding as relevant to the question of remorse (Ground 1); second, that the sentencing judge treated a submission made by the applicant's counsel as a factor relevant to whether the applicant had good prospects of rehabilitation or remorse (Ground 2); and third, that the disparity between the sentence imposed on the applicant, and the sentence imposed on the co-offender, is such as to leave the applicant with a legitimate sense of grievance (Ground 3). The Court held (Rothman J, Ward P and Davies J agreeing): As to Ground 1: 1. The sentencing judge took into account for both the applicant and Mr Xie "their lack of candour and lies to the police". Whether the applicant was lying to police by remaining silent when Mr Xie told the police that the items were tea is not a finding that the sentencing judge reached. Rather, the sentencing judge was relying on the lack of candour and lies to inform the findings on remorse: [47] – [49] (Rothman J). 2. The proper inferences available from the Agreed Facts, include that the applicant lacked candour when he remained silent on hearing the answer to the questions asked by the police. The sentencing judge made no error of fact and was entitled to take into account the lack of candour of the applicant: [50] (Rothman J). As to Ground 2: 1. The sentencing judge did not err in finding that the applicant was seeking to minimise his role in the offending. The submissions of the applicant's counsel that there was no evidence that the applicant did anything more than accept and deliver packages was merely a reflection of what the applicant had said to others in material which was also before the Court. As such, the findings made by the sentencing judge were open on the evidence: [57] – [58] (Rothman J). As to Ground 3: 1. While a more lenient sentence was given to Mr Xie, this could not give rise to a justifiable sense of grievance on the part of the applicant. Mr Xie was significantly younger than the applicant and was sentenced according to the principles for young offenders, whereas the applicant was not: [64] (Rothman J). BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379, applied. JUDGMENT 1. WARD P: I agree with Rothman J. 2. ROTHMAN J: The applicant, Mr Bingchun Lin was charged with an offence of possession of tobacco products, knowing that the goods were imported, with intent to defraud the revenue. The offence is contrary to s 233BABAD(2) of the Customs Act 1901 (Cth) with s 11.2A(1) of the Criminal Code Act 1995 (Cth) (hereinafter "the Code"). The offence is punishable by a maximum sentence of 10 years' imprisonment and/or a fine not exceeding five times the amount of duty that would have been payable on the goods or otherwise 1,000 penalty units. The sentence imposed upon the applicant was imprisonment for 2 years, with a direction that the applicant be released after 1 year on a Recognisance Release Order in the sum of $1,000 without surety. 3. The applicant applies for leave to appeal, and if leave be granted, appeals, the sentence imposed upon him on three grounds: Ground 1: her Honour erred in finding that the applicant Lin lied to police, and treated that finding as relevant to the question of whether the applicant had demonstrated remorse. Ground 2: her Honour erred in treating submissions made on behalf of the applicant on sentence as making the Court less sure of the applicant's rehabilitation or remorse for offending so as to increase the need for specific deterrence. Ground 3: the disparity between the sentence imposed on the applicant, and the sentence imposed on the co-offender, Mr Zhiwen Xie, is such as to leave the applicant with a legitimate sense of grievance. 1. On 26 May 2023, Wass SC DCJ sentenced the applicant following, as stated, a plea of guilty. The sentence has been set out above. There were Agreed Facts for the purpose of sentencing. 2. Her Honour summarised the Agreed Facts. It is necessary to summarise them, albeit more briefly than did her Honour. 3. The Crown case was that between 28 August 2020 and 8 December 2020, the applicant and co-offender, Zhiwen Xie, possessed tobacco products, knowing that the goods were imported with intent to defraud the revenue. During that period, Mr Xie rented 15 storage units at Kennard's Hire in Camperdown. The applicant was listed as the alternative contact for those storage units. 4. Also during that period, the applicant leased a further 5 storage units in Waterloo. Mr Xie was listed as the alternative contact for those latter units. 5. On 16 December 2020, police conducted a lawful search of the storage units in Camperdown and identified tobacco products. They were in packages addressed to the co-offenders and a third person, Yun Feng Wang. Police then conducted surveillance on the properties. 6. At 1:20 PM that day, the co-offenders attended the premises and commenced loading the parcels into a car and departed in the car. They were followed by police before being stopped. The co-offender told police that the car was his and the packages contained tea. The applicant said nothing. The comment by the co-offender was in response to an enquiry from police as to the contents of the packages. The detail of the relevant Agreed Facts will be dealt with later in these reasons. 7. The offenders were arrested. A search of the car revealed 64.05 kg of loose-leaf tobacco, concealed inside tea packaging. Further, there were 280 packets of Marlboro Gold cigarettes. The revenue lost on these tobacco items amounted to $100,970.30 and $6,180.16 respectively. The co-offenders were granted bail on that day. 8. On 21 January 2021, police executed search warrants at the Waterloo storage units and a post-depot in Enfield. During those searches, police discovered further packages addressed to the co-offenders which were later found to contain 130 kg of tobacco (with a net revenue loss of $204,954.10). 9. The co-offender's phone was searched. It revealed spreadsheets organising the delivery of packages and the price of the tobacco. There were also messages concerning the sale of smuggled tobacco, dating back to October 2020. 10. The applicant's phone was searched and also contained a spreadsheet. These spreadsheets tracked consignments which were located by police; messages about the sale of smuggled tobacco dating back to December 2020; and messages indicating that the user of the phone purported to be Zhiwen Xie, the co-offender. Remarks on Sentence. 1. In sentencing the offenders, Wass SC DCJ considered the objective seriousness of the offending, having regard to the total revenue lost; the period of possession; the lost revenue, which had not been repaid; and other aspects of the details of the offending. Counsel for the applicant had conceded that the applicant knew the cigarettes were, in fact, cigarettes and contraband, but maintained that the applicant thought that the loose-leaf packages contained tea and informed the police they were tea. 2. The sentencing judge did not accept this, having regard to the full circumstances and the presence of all the items in the car, as well as the text messages on the offenders' phones and the fact that 41 packages were addressed directly to the applicant. 3. While her Honour noted that the offending was not particularly sophisticated, her Honour remarked that the evidence suggested that the offenders performed crucial roles and that they held the tobacco for their own purposes and not as conduits for others. Her Honour accepted that the offending fell within the mid to low range of objective seriousness. 4. While the offenders had entered pleas of guilty, these were not entered at an early stage and a 10% discount was applied to each on that basis. Her Honour did not accept that the co-offenders demonstrated contrition by pleading guilty in the face of a strong Crown case, particularly when one had regard to the length of time that the co-offenders involved themselves in the offending, the lack of candour and lies to police and continued possession after arrest. 5. In relation to the subjective case of the applicant, her Honour accepted that the applicant grew up in China in impoverished circumstances and left China for Australia in 2018. The applicant was 51 when the offences were committed. The applicant informed a psychologist, Mr Wong, that he left China with a large debt and immigrated to Australia for better employment prospects. He was injured in July 2022 at work and had been relying on workers' compensation payments since that time. 6. An objective reading of the remarks on sentence indicates that her Honour approached the material tendered by the applicant on sentence with some degree of caution. Her Honour noted, for example, that letters of support from his employer and family members were all given in precisely the same format and that there were certain inconsistencies between the accounts given in those letters and accounts given by the applicant in other materials. 7. For example, the applicant was described by his supporters as working tirelessly to provide for his family in physically demanding work. They did not refer to the work injury suffered by the applicant, nor the fact that the applicant had been unable to work for the last six to nine months. Given that the author of the Sentencing Assessment Report confirmed the injury independently, her Honour rejected the evidence about the applicant's ongoing hard work to provide for his family. 8. While the Sentencing Assessment Report records that the applicant said he did not know he was breaking the law, and it was submitted that there was no evidence that his role went beyond accepting and delivering packages, her Honour found that there was evidence to support the proposition that the applicant intended to sell the tobacco. Without corroborating evidence, her Honour was not prepared to accept that the applicant was naïve, gullible, or just following instructions from someone higher up in the operation. 9. While the psychologist's report records that the applicant said that he was remorseful, in that context the applicant described his situation as unfair. Her Honour found that this was a lack of insight and an unwillingness to accept responsibility. Her Honour remarked that she considered the applicant was regretful of his decision, but not truly remorseful. 10. On the question of parity, her Honour noted that the co-offender was significantly younger than the applicant. The co-offender was 23 at the time of the offending, while the applicant was 51. The co-offender asserted that he was driven to offend by a lack of work opportunities during COVID, but her Honour found that to be inconsistent with evidence that the co-offender was able to return to work as a gypsum plasterboard fixer, immediately after his release and that his parents had also provided for him financially since he arrived in Australia. Her Honour was also not prepared to accept statements by the co-offender in which the co-offender sought to minimise his role in the offending. Her Honour, in the case of the co-offender, also found that the evidence before the Court did not satisfy her as to the existence of remorse. 11. Ultimately, her Honour found that the applicant's inconsistent subjective case made it difficult to assess his risk and his prospects of rehabilitation were guarded. Her Honour accepted that the roles of each of the two co-offenders in the offending was "much the same", with the applicant's role being slightly more serious, due to the number of packages solely in his name at a warehouse that he had leased. Her Honour stated that the disparity in sentences arises from the different ages, the principles that apply to young offenders, her assessment as to the future offending and different subjective cases. 12. The co-offender was sentenced to 2 years to be served as an Intensive Correction Order. Submissions of the Applicant Ground 1: Finding applicant lied and use in issue of remorse 1. The applicant relied on so much of the Agreed Facts, which stated that it was the co-offender, not the applicant, who told police that the packages contained tea. As such, the applicant submits that her Honour fell into error in finding that the lies to police allowed her to find a lack of remorse in respect of both offenders. Ground 2: Utilisation of submissions by Counsel as evidence of lack of remorse and/or rehabilitation 1. In relation to Ground 2, the applicant submits that his submissions on sentence, to the extent that there was no evidence going to the offender's overseeing the whole operation, should not have been used by the sentencing judge to form a view that the applicant was attempting to minimise his role and should not have caused her Honour to be less sure of the applicant's rehabilitation or remorse. The applicant submits that this had the effect of the sentencing judge using a submission by Counsel as an aggravating factor. Ground 3: Disparity 1. The applicant submits that his role in the offending and the role of the co-offender was indistinguishable on the facts agreed between the applicant and the Crown. Further, it is submitted on behalf of the applicant that the difference between the subjective circumstances of each of the co-offenders was unremarkable. The applicant submits that the inconsistencies that the judge found could be explained by language barriers or the applicant being a poor historian. 2. The applicant submits that the only real difference between the two co-offenders was their age difference, which, it is submitted, is not sufficient to justify the different sentences that were imposed. The applicant submits that the difference between the sentences, which requires the applicant to serve at least 12 months in gaol and the co-offender no time in gaol, is sufficient to give him a legitimate sense of grievance. Evidence 1. The applicant relies on his Affidavit of 30 October 2023 on the usual basis, namely, to be used by the Court if the Court is embarking upon the process of resentencing. The Affidavit attests to the circumstance of the applicant moving to Australia from China; and having been married twice, with one child from each marriage; and that his older daughter is now a mother. 2. The Affidavit refers to the fact that his wife and son are financially dependent on the applicant, with his son currently a student at Gaoxin College in Xi'an. Prior to October 2022, the applicant was working as a labourer, earning more than $1,000 per week. 3. On 17 October 2022, he was injured at work and has been in receipt of workers' compensation payments thereafter. The payments were suspended upon the applicant's incarceration. The applicant has been working on light duties in gaol and has received no disciplinary offences during the time of his imprisonment. Submissions of the Crown/Respondent Ground 1: Sentencing judges' reliance on lies in determining remorse and rehabilitation prospects 1. The Crown accepts that, if the sentencing judge were to have proceeded on the basis that the applicant lied to police, then an error of fact has been established. However, the Crown notes that a psychological report before her Honour recorded that the applicant told the practitioner that he was moving parcels of tea, which must have been a lie given the applicant's plea. Further, the Sentencing Assessment Report records the applicant's statement that he did not know what was being transported. 2. As such, the Crown says that if there were an error of fact, it was not material because, if the applicant did not lie to police, he lied to his psychologist and the authors of the Sentencing Assessment Report. 3. The submission of the Crown is that no lesser sentence is warranted at law because the same "lie" or assertion was made more than two years later to the author of the Sentencing Assessment Report. Consequently, any wrongful attribution to the applicant of the initial lie would reflect the same minimisation, lack of insight and lack of remorse that was identified and utilised by her Honour. Ground 2: Error in use of submissions 1. The Crown submits that, on a proper understanding of the sentencing remarks, the sentencing judge did not place greater weight on sentencing factors as a result of any submission by the applicant's Counsel. The comment of Counsel, which indicated that the applicant's role could have been minimal, was consistent with what the applicant had said in the Sentencing Assessment Report. It was therefore open to her Honour to find that the applicant's asserted role was inconsistent with the Agreed Facts. As a consequence, her Honour was entitled to form a view that the applicant was seeking to minimise his role to receive a lesser sentence. Ground 3: Disparity 1. The Crown submits that the difference in the sentences of the two offenders is readily apparent by the differences in the offending and in the subjective cases of each of them. In that regard, the Crown submits that there were important differences between the two offenders. 2. First, the applicant had a greater role in the offending, given the 41 packages solely in the name of the applicant. Secondly, the applicant was not sentenced as a young offender while the co-offender was. Lastly, her Honour found that the applicant's prospects of rehabilitation were guarded and that the applicant was not suited to community service. 3. The Crown submits that the sentence imposed upon the applicant was lenient, with a 50% pre-release period. Having regard to the seriousness of the offending, the Crown submits that the sentences imposed upon each of the applicant and the co-offender were lenient; that the co-offender's sentence should not, on the basis of the leniency shown to him, give rise to a legitimate sense of grievance; and that, given the lenient sentence on the applicant, no lesser sentence is warranted in law, even if there were disparity. Consideration 1. The offence with which Mr Lin was charged and to which he pleaded guilty, is an offence that punishes for not declaring goods that are subject of import or customs duties and paying duty on them. The courts, over many decades, have commented on the practical restriction and the capacity of law enforcement agencies to apprehend every offender for every offence against revenue law. 2. Consequently, the courts have stressed the principle that the courts should seek to ensure that deceitful conduct in a commercial enterprise, once determined, is appropriately punished. In doing so, the courts are emphasising general and specific deterrence against the commission of such offences by persons who are knowingly defrauding the revenue. In L Vogel & Son Pty Ltd v Anderson, [1] Kitto J said: "The duty evaded has now been paid, and I understand that when the evasions were discovered the defendants gave the Customs every assistance in their investigations. But when all the considerations relied upon by the defendants have been given due attention the case still cannot be regarded as other than a serious one. Not only are the defendants guilty of a sustained course of conscious wrongdoing, but the offences are in a field in which punishments for deliberate offences must be severe. The Customs laws represent the judgment of Parliament upon an important aspect of the economic organization of the community, and the object of the penal provisions is to make that judgment as effective as possible. It is important to remember that Customs officers have of practical necessity to rely extensively upon the information supplied to them by importers, for the flow of commerce could not be maintained if every importation had to be fully investigated. Moreover, detection of frauds is not always easy. No doubt ordinary conceptions of honesty and of civic responsibility suffice to ensure a great deal of fair dealing with the Customs, but for some people little seems to matter but fear of the consequences of discovery. The Customs Act makes those consequences potentially drastic. It is for the courts to make them, in suitable cases, drastic in fact, for otherwise traders who are not saved by qualms of conscience from willingness to defraud their fellow citizens may weight the profits they hope for against the penalties they have cause to fear and find the gamble worthwhile." 1. While the foregoing, like the comments of R v Lyon, [2] were made in the context of importers understating the value of goods to be imported, the principle is, the necessary changes having been made, identical. In the modern era, with modern technology, fraud may be more easily detected, but, fundamentally, the revenue provisions depend upon the honesty and transparency of persons, in this case, importing or seeking to import goods and informing Customs of such a circumstance. 2. In other words, in offences of this kind, general and specific deterrence are of particular significance. In the case of tobacco, to the foregoing comments should be added that the revenue requirements also reflect an obvious government policy to discourage, by higher price created by the imposition of the duties, the consumption of tobacco, particularly amongst the young. In the foregoing context, the sentences imposed upon the applicant and Mr Xie are lenient. It is unnecessary, in the absence of a Crown appeal, to comment further. 3. Before dealing with the details of Ground 1, it is necessary to reiterate that a court on appeal should not be concerned with "looseness of language" nor "unhappy phrasing". [3] Nor, in the words of the High Court, should a court on appeal construe the judgment below "minutely and finely with an eye keenly attuned to the perception of error". [4] 4. The applicant, in agitating Ground 1, relies upon a finding by her Honour that the applicant lied to police and, further, that, having so found, her Honour used that circumstance to inform the determination of whether the applicant had shown remorse. The Agreed Facts refer to the circumstance that the parcels of tobacco were loaded into "their car" in which the applicant and his co-offender then departed. They were stopped by police and questioned. 5. The Agreed Facts then record: "When questioned by police, Xie told the police that it was his car. When asked what was in the packages, Xie told the police that the packages contained 'tea'." [5] 6. The obvious inference available, and which I draw, is that the questioning occurred while the applicant and Mr Xie were present and the applicant was silent in response to the question and answer provided. The applicant seeks to draw the conclusion that, therefore, the applicant did not lie, and her Honour was incorrect in so finding, and, as a consequence of so finding, erred in utilising the circumstance in informing the degree of remorse. 7. However, it is important to examine that which her Honour said. The Remarks on Sentence are relevantly in the following terms: "I did not regard the late pleas in the face of a strong Crown case to be any evidence of contrition or remorse. I formed the view on the limited direct material that I had, given the length of time over which they involved themselves in this offence, their lack of candour and lies to the police and the continued possession of some of the tobacco after the two were arrested, that the offenders are anguished by the prospect of being punished, but not by the thought of possessing illegal items with the view to defrauding the Revenue." [6] 1. The phrase used by her Honour is "their lack of candour and lies to the police". Whether Mr Lin, on hearing the question and answer by his co-offender, was lying to police is not a finding that her Honour reached. Her Honour was relying on the lack of candour and lies to inform the findings on remorse. 2. The proper inferences available from the Agreed Facts, include that the applicant lacked candour when he remained silent on hearing the answer to the questions asked by the police. Her Honour has made no error of fact and her Honour, in determining whether there was genuine contrition, was entitled to take into account the lack of candour of the applicant. 3. Further, as pointed out by the Crown, the applicant told psychologists that he was "moving parcels of tea", and reported to the authors of the Sentencing Assessment Report that he did not know the contents of that which he was transporting. In each case, including the lack of candour associated with questions to police, her Honour was entitled to come to the view that the applicant was diminishing his role and was concerned and regretful at being caught and punished, but not at possessing the illegal items nor at the offending. 4. There is a distinction between remorse or contrition, on the one hand, and regret and acknowledgement of responsibility, on the other. While regret and acknowledgement of responsibility may be evidence of remorse, the presence of regret and the acknowledgement of responsibility do not require a finding of remorse. 5. In principle, there is a significant difference between regret for the consequences of conduct and contrition for the conduct. Remorse is contrition or shame at the commission of an offence, not regret as to its consequences to the offender. It is contrition or remorse for having committed an offence that is to be taken into account by mitigating a sentence. [7] 6. I do not consider that the factual basis for Ground 1 has been established. Further, I do not accept that the learned sentencing judge was wrong in determining that the applicant was seeking to minimise his involvement in the offending and utilising that to inform, at least in part, a finding on remorse. This ground of appeal fails. 7. In relation to Ground 2, the applicant is suggesting that her Honour utilised the submissions of Counsel to establish that the applicant was minimising his role in the offending, which was an error. It is accurate to state that Counsel at the sentencing hearing submitted that there was no evidence that the offenders oversaw the whole of the operation, and that their principal role was to "accept and deliver" packages. It is also accurate to conclude that her Honour formed the view that the applicant was trying to minimise his role to obtain a lesser sentence and that her Honour commented that "it has had the opposite effect" and that "it has meant that I am less sure of his rehabilitation or remorse for his offending so as to increase the need for specific deterrence in his case". [8] 8. Again, the difficulty with the agitation of this ground is that it depends upon a proper reading of the Remarks on Sentence and a premise that the finding as to minimising the applicant's role was based on the submissions of Counsel and nothing more. 9. The fundamental difficulty with the proposition is that the submissions of Counsel merely reflected the statements by the applicant to the psychologist and to the authors of the Sentencing Assessment Report. Leaving aside, for present purposes only, whether a court is entitled to rely on the submissions of counsel as reflecting the view of their client, the evidence in this case is that the client, i.e. the applicant, said far more to minimise his role in the offending than Counsel suggested and her Honour had open to her, on the evidence that was admitted, the finding that the applicant had sought and did seek to minimise his role. 10. It was the minimisation of the applicant's role in the offending that caused her Honour's concern and her Honour's findings in that regard were open and her conclusion was open. Ground 2 of the appeal must also be rejected. 11. Lastly, I turn to Ground 3 of the application for leave to appeal. Fundamentally, the applicant submits that there is a legitimate sense of grievance, or, more accurately, it is submitted that a legitimate sense of grievance was open to the applicant, because the only significant differentiating factor between the applicant and his co-offender was their relative ages. For the purpose of dealing with this ground of appeal, it is unnecessary to analyse whether there are other differences. I will accept, without deciding, that the only significant difference between the two relevant co-offenders was their ages. 12. It is necessary to state briefly the principle that should be applied in sentencing young offenders, as distinct from persons of a mature age. The applicant was, at the time of sentencing over 54 years of age. The co-offender Xie was just over 26 years of age. 13. The difference in ages is highly significant. Further, the term "young offenders" is not confined to those persons under 18 years of age and relates to those persons who, by reason of youth, are less mature than a fully mature adult. The principles relating to the sentencing of such a person were summarised by Hodgson JA in the following terms: "[4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] – [36]. [5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a 'child offender' of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). 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. [6] Third, I do not think courts should be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors." [9] 1. Applying those principles to the current circumstances requires a comparison of the two sentences imposed. Mr Xie was sentenced to a term of imprisonment of 2 years, to be served by an Intensive Correction Order. There is inherently a degree of leniency associated with serving a sentence by an Intensive Correction Order, but the comparison must be with the term of the sentence. 2. Mr Lin was also sentenced to a term of imprisonment of 2 years, with a release after 12 months on a Recognisance Release Order. Thus, the difference in the sentences imposed relates to the inherent leniency associated with the capacity to service a sentence by an Intensive Correction Order, whereas the applicant was required to spend 12 months in full-time custody. 3. While I accept that as a result of that comparison, there is a greater leniency in the sentence imposed on Mr Xie, I do not accept that the difference gives rise to a legitimate sense of grievance. In and of itself, the age and maturity differences between the applicant and Mr Xie needed reflection, which in ordinary circumstances would require a sentence of imprisonment longer than 2 years. 4. If any sentence were imposed that was greater than 2 years' imprisonment, then an Intensive Correction Order would not have been available. The learned sentencing judge has obviously then recognised the leniency in an Intensive Correction Order and reduced the sentence to be imposed on the applicant. 5. In performing that task, the sentencing judge has taken account of parity in a slightly unusual manner, but not in a way that gives rise to error or a legitimate sense of grievance. As a consequence, the sentence imposed on the applicant, in comparison to the sentence imposed on Mr Xie, his co-offender, could not give rise to a legitimate sense of grievance arising from the failure to impose an Intensive Correction Order. Ground 3 must also fail. 6. For the foregoing reasons, I would propose that the Court issue the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal. 1. DAVIES J: I agree with Rothman J. ********** Endnotes 1. L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157 at 164 (Kitto J); [1968] HCA 90. 2. R v Lyon (1906) 3 CLR 770; [1906] HCA 17. 3. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ); [1996] HCA 6 at [30]. 4. Ibid. 5. Application Book, p 53 at [7]. 6. Remarks on Sentence, Wass SC DCJ, 26 May 2023; Application Book, p 35. 7. Neal v The Queen (1982) 149 CLR 305 at 315; [1982] HCA 55; Raptis, Lilimbakis & Sinclair v R (1988) 36 A Crim R 362 (Court of Criminal Appeal (VIC), Young CJ, O'Bryan and Tadgell JJ); Brzozowski v The King [2023] NSWCCA 129 at [6], [12] (Simpson AJA); at [58], [61] (Rothman J) (Cavanagh J agreeing with each judgment); Patel v R [2022] NSWCCA 93; (2022) 366 FLR 314 at [41] (Brereton JA, N Adams and Lonergan JJ agreeing). 8. Remarks on Sentence, Wass SC DCJ, 26 May 2023; Application Book, p 37-38. 9. BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [4]-[6] (Hodgson JA); see also [108] (Rothman J). 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: 29 November 2023