Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: XE v R [2023] NSWCCA 96 Hearing dates: 6 February 2023 Date of orders: 24 April 2023 Decision date: 24 April 2023 Before: Adamson JA at [1]; N Adams J at [2]; Weinstein J at [60]. Decision: (1) Leave to appeal is granted. (2) The appeal is dismissed. Catchwords: CRIME – appeal – appeal against sentence – applicant convicted of murder based on joint criminal enterprise to kill as act of revenge – applicant 17 years old acting with father and brother – whether sentence was manifestly excessive – no challenge to findings made by the sentencing judge – sentencing judge had regard to all relevant factors in determining sentence including youth immaturity and father's influence – applicant presented favourable subjective case on sentence – sentence not unreasonable or plainly unjust – leave to appeal granted – appeal dismissed Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A Crimes Act 1900 (NSW), s 18(1)(a) Criminal Appeal Act 1912 (NSW), s 5(1)(c) Cases Cited: Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 XE [& ors] [2021] NSWSC 885 Sarhene v R [2022] NSWCCA 79 Category: Principal judgment Parties: XE (Applicant) Crown (Respondent) Representation: Counsel: Mr G Woods KC with T Woods (Applicant) Mr D Scully (Respondent) Solicitors: Tohi Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2017/202637 Publication restriction: Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW) the name of the applicant cannot be published. Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2021] NSWSC 885 Date of Decision: 22 July 2021 Before: Ierace J File Number(s): 2017/202637 HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, "XE", was convicted of the murder of Jesse Thompson contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) following a jury trial. The Crown case was based on principles of joint criminal enterprise. The co-offenders in the joint criminal enterprise were the applicant's father and brother; the applicant's father was driving the car from which the applicant's brother filed the fatal shot. The applicant was sentenced to 17 years imprisonment, commencing on 4 July 2017 and expiring on 3 July 2034, with a non-parole period of 10 years and 6 months. The applicant was sentenced on the basis that she was part of a joint criminal enterprise to kill the deceased and/or anyone else in the other vehicle as an act of retribution. The objective seriousness of her offending was significantly mitigated by her youth and the fact that she was encouraged to join the joint criminal enterprise by her father. The applicant appealed the sentence on the ground that it was manifestly excessive. The court held, granting leave to appeal and dismissing the appeal (per N Adams J, Adamson JA and Weinstein J agreeing): 1. Consistent with well-established principles, the applicant was required to establish that the sentence imposed is manifestly excessive in the sense that it is unreasonable or plainly unjust. Something more must be shown than that the appellate court might have exercised its discretion differently: [48]. 2. Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, applied. 3. The applicant did not challenge the sentencing judge's findings: [49]. The matters raised on the applicant's behalf to suggest error were properly considered by the sentencing judge: [57]. The applicant has not established that the sentence imposed was unreasonable or plainly unjust: [58]. JUDGMENT 1. ADAMSON JA: I agree with N Adams J. 2. N ADAMS J: The applicant seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on her by Ierace J on 22 July 2021. 3. On 13 November 2020, the applicant, her brother and father were all arraigned and pleaded not guilty to the murder of Jesse Thompson on 2 July 2017, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). Her brother also stood trial for the earlier wounding of Jayke Rodgers with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act. Given that the applicant was aged 17 years and 7 months at the time of the killing, her name cannot be published: s 15A Children (Criminal Proceedings) Act 1987 (NSW). In order to protect her anonymity, I propose to refer to her as the applicant and to her father and her brother by those descriptors. 4. The case against the three offenders was one of joint criminal enterprise. Jesse Thompson died as a result of gunshot wounds inflicted on him during a car chase in which he was being pursued by another vehicle driven by the applicant's father and carrying the applicant and her 24 year old brother. Her brother was in the front passenger seat, and she was in the backseat. It was her brother who fired the fatal shot. 5. The jury retired to consider its verdict on 14 January 2021. On 19 January 2022, the jury returned verdicts of guilty against each accused on all counts. 6. At the time of his death, Jesse Thompson was 19 years old. He had been with his partner for five years and they had two young daughters aged three years and one year respectively. At the proceedings on sentence, these young children provided drawings and messages of how much they missed their father. A number of other victim impact statements were also tendered which revealed the significant degree of loss and suffering caused by the murder. 7. All three offenders were sentenced together: XE [& ors] [2021] NSWSC 885. 8. The applicant was sentenced by Ierace J to 17 years imprisonment, commencing on 4 July 2017 and expiring on 3 July 2034, with a non-parole period of 10 years and 6 months. That non-parole period will expire on 3 January 2028. 9. The applicant's brother was sentenced to an aggregate sentence of 32 years imprisonment commencing on 4 July 2017 and expiring on 3 July 2049, with a non-parole period of 22 years and 4 months, to expire on 3 November 2039. 10. The applicant's father was sentenced to 31 years imprisonment to commence on 4 July 2017 and to expire on 3 July 2048, with non-parole period of 22 years and 6 months, to expire on 3 January 2040. 11. As will be seen below, the significantly higher sentences imposed on the applicant's brother and father reflect findings made by his Honour as to their respective roles in the enterprise. 12. The applicant seeks leave to appeal on the sole ground that the sentence is manifestly excessive. In the circumstances, there could be no ground of appeal alleging any disparity between her sentence and the much higher sentences imposed on her father and brother. Factual background 1. The background to the offence is set out in the sentencing judge's reasons at [5]-[90]. That account of the facts is very detailed and includes a summary of the defence cases of the three offenders, most of which was not accepted by the judge on sentence. I consider the following summary of those facts to be sufficient to convey the objective seriousness of the offending and the applicant's role in the criminal enterprise. 2. As of 2 July 2017, the applicant resided with her father in the family home. Her brother and his partner Christine lived in a granny flat at the rear of the property. At around 2am on Sunday 2 July 2017, the applicant's brother enticed a young man named Jayke Rodgers to the family home, prevented him from escaping, and assaulted him. The motive for the assault was revenge: Mr Rodgers was said to be having a covert sexual relationship with Christine. 3. The applicant's brother engaged others to assist him in detaining Mr Rodgers and used a blunt object to inflict head injuries to him. Mr Rodgers described how the applicant's brother held him in a headlock and the applicant, who was present, "scream[ed] for it to stop". After the attack, Mr Rodgers asked neighbours for help and to call an ambulance. While Mr Rodgers was waiting for the ambulance to arrive, the applicant entered the house and handed Mr Rodgers his phone and said, "[s]top thinking with your dick". Mr Rodgers was taken to hospital. He had four lacerations to his scalp requiring sutures. He declined to tell police what had happened simply claiming that he had been assaulted and robbed by three unknown persons. 4. The applicant's brother was convicted of wounding with intent to cause grievous bodily harm in relation to that conduct. 5. Later that morning, Mr Rodgers informed some of his friends, including Shane Weir and Levi Dean, that the applicant's brother had assaulted him. At 11.34am, Mr Weir and Mr Dean went to the applicant's home and yelled something at her brother, who went inside the premises. They knocked at the front door. The applicant was then present, and the men had a brief exchange with her through the closed door. Mr Weir and Mr Dean then turned to leave and, as they did, one of them threw something at the glass front door. The door shattered, causing superficial cuts to the applicant's legs that bled profusely. There was evidence that the applicant was very distressed by that incident. 6. At around midday on 3 July 2017, the applicant, her father and her brother drove to Billy Thompson's house in the applicant's father's Mitsubishi Triton ("the Triton"). They knew him to be a close friend of Mr Rodgers. The offenders pulled up beside a car containing Luke Hill and Daniel Hill. They were Mr Thompson's cousins who were visiting him. The applicant asked where Mr Rodgers was. Luke Hill replied that he did not know. John Evans pointed a barrel shotgun at him and asked again to which Luke Hill replied, "[t]his has nothing to fucking do with me". As the offenders' car containing screeched off, the applicant leaned out the window and said: "I'll kill your fucking missus, Hilly cunt". 7. At 12.06pm on 3 July 2017, Mr Rodgers called the applicant and they arranged to meet at Barker Park. The offenders arrived at the specified location in the Triton. Her father was driving, her brother was in the passenger seat and the applicant was in the back seat. Mr Rodgers, Mr Weir, Mr Dean, Luke Hill, Billy Thompson and Jesse Thompson arrived in a Toyota Kluger SUV ("the Kluger"). Ierace J was satisfied beyond reasonable doubt that during this exchange the applicant's brother used a single barrel shotgun to discharge at least one cartridge while holding the shotgun outside the cabin of the Triton, in the direction of one or more of the occupants of the Kluger shortly after they alighted from the vehicle. 8. At approximately 12.30pm, the Kluger drove at speed along Ithome Street and through residential streets in an attempt to escape the occupants of the Triton who were following close behind him. At the Byron Street intersection, the Triton pulled up alongside the Kluger. Consistent with the jury's verdict, Ierace J found that the applicant's brother deliberately discharged the shotgun at the occupants of the back seat of the Kluger. Jesse Thompson had shotgun wounding in the neck and lower face and was pronounced dead at 12.53pm. 9. As the Triton departed the Byron intersection, the applicant held her arm out of the rear passenger window in an upwards direction and shook her fist. 10. At 12.51pm, approximately 20 minutes after the shooting, the applicant explained what had occurred on a phone call to her boyfriend. The applicant's boyfriend said: "… they were my mates". The applicant replied: "I don't give a fuck. Fuckin' dead mates now". Proceedings on sentence 1. Proceedings on sentence were conducted on 24 June 2021 and the three offenders were sentenced together. A Crown bundle was tendered in relation to the applicant's case comprising the applicant's criminal history in both New South Wales and Queensland and her custodial movement record. The sentencing remarks in relation to an earlier matter in the Children's Court on 4 June 2019, agreed facts in relation to earlier matters, numerous victim impact statements and three background reports provided by Youth Justice NSW, Communities and Justice dated 19 March 2021 were also tendered. In addition, a number of psychological reports were tendered: by Adrian Gillespie dated 10 March 2021, Lauren Adams dated 5 August 2020 and Brittany Philips dated 9 July 2019. A psychiatric report ordered by the sentencing judge from Dr John Kasinathan dated 27 April 2021 was also tendered. 2. Counsel for the applicant tendered a typed letter from the applicant dated 18 February 2021 and a further handwritten letter from the applicant dated 21 June 2021 in which she said that she was deeply sorry for the death of Jesse Thompson although, for legal reasons she continued to deny her guilt. A number of education reports were tendered as well as a number of statements from staff at Reiby Youth Justice Centre, all described as character references with glowing accounts of her improvement while in custody. There was also a letter from the Women's Justice Network and a number of photographs depicting the applicant becoming involved in a number of programs including those pertaining to her traditional culture. One of those photos depicts her standing next to the Governor of New South Wales. 3. Dr Kasinathan gave evidence at the proceedings on sentence. He confirmed the opinion expressed in his report that, despite a provisional diagnosis of bipolar mood disorder, there was no active evidence that the applicant had diagnosable bipolar mood disorder or post-traumatic stress disorder (PTSD). Dr Kasinathan's opinion was that the provisional diagnosis may either be in remission or the presentation in 2017 was due to different factors such as substance use withdrawal or a difficult upbringing. He also gave evidence that the three psychiatrists who had treated the applicant were of the view that the applicant's historical psychiatric conditions or provisional psychiatric disorders were unlikely to have significantly contributed to the offence. 4. Submissions on sentence focused on the findings to be made by the sentencing judge concerning the applicant's knowledge and endorsement of the discharge of the shotgun. Counsel for the applicant submitted that a finding of extended joint criminal liability was appropriate. It was submitted that while the applicant had knowledge of the presence of the shotgun, there is no evidence that she touched it or referred to its use, nor was there reference made to her brother's plan to use it. After the shotgun was discharged at Barker Park, the applicant could not get out of the car and there is no evidence that she did anything by way of participation. Counsel for the applicant also submitted that the applicant's approving gesture to the other vehicle after the shooting was in relation to an approval of the discharge of the shotgun as an act of intimidation, not the approval of the infliction of any injury. 5. In addition to presenting the favourable subjective case for the applicant, the applicant's counsel addressed, inter alia, her mental health issues. It was submitted that the applicant did have mental health conditions, which were treated in custody. These conditions, it was submitted, combined with the applicant's background, explained her inappropriate responses to the offence and reduced her moral culpability. The Crown submitted that the court could not be satisfied to the requisite level that the applicant had the diagnoses at the time of the offending, but that the doctor's alternative explanation about the applicant's difficult childhood and the effects of this on her brain are relevant to the consideration of moral culpability. 6. The Crown submitted that the applicant's phone call with her boyfriend after the shooting indicated that she was not surprised about what transpired and there was no expression of her unwillingness to be involved. Remarks on sentence 1. After setting out the facts as summarised above, the sentencing judge considered the basis of the applicant's criminal responsibility. It was noted that the Crown case had been put in the alternative. The primary case was one of joint criminal enterprise; that the three offenders all agreed to kill the deceased. The alternative case was one of extended joint criminal enterprise. His Honour was satisfied beyond reasonable doubt that the three offenders were all part of a joint criminal enterprise to kill the deceased and that the applicant was a participant in that joint criminal enterprise. His Honour was satisfied that, at least by the time of the shooting at the Byron Street intersection, the objective had become for the applicant's brother to kill one or more of the occupants of the Kluger and she remained a participant on that basis. In arriving at this conclusion his Honour had regard to the following evidence: 1. The applicant had drawn on her knowledge of Mr Rodgers and others to advise and assist her father and brother to locate the men, by identifying Billy Thompson's residence at Woodward Avenue as a likely place that they would have gone to. 2. The applicant was in the back seat as her father pointed the shotgun at Luke and Daniel Hill and Jesse Thompson and implicitly threatened them. 3. The applicant yelled out "I'll kill your fucking missus, Hilly cunt" which was indicative of a desire to cause physical harm to persons associated with Mr Rodgers and those who, the offenders believed, had visited her home 20 minutes earlier. 4. Mr Rodgers had contacted the applicant to arrange their meeting and she had telephoned him back. There was no suggestion in the evidence that she was uncomfortable with being the communication point between the occupants of the two vehicles. 5. The applicant was in the back seat and would have been aware of her brother discharging the shotgun out of the front passenger window towards the occupants of the Kluger. 6. There is no evidence that the applicant did or said anything to discourage her brother from discharging the shotgun into the Kluger. 7. As the vehicle in which she was a passenger departed the Byron Street intersection, she held her arm out of the rear passenger window in an upwards direction and shook her fist. His Honour was satisfied that it was a gesture of "defiance or victory" and that she intended the occupants of the Kluger to see it. His Honour was also satisfied beyond reasonable doubt that the gesture "implicitly conveyed her approval of the discharge of the firearm into the Kluger a matter of a few seconds before; so close in time that it is to be understood not only as an endorsement of what had just occurred but also as an affirmation of it as what she had hoped would occur". 8. The applicant spoke with her boyfriend approximately 20 minutes after the shooting. That time coincided with the time that Jesse Thompson was declared deceased. She assumed that one or more of the occupants of the Kluger had been killed. His Honour was satisfied that she approved of that outcome and of their reaction of shock and fear. 1. The sentencing judge assessed the objective seriousness of the applicant's criminality as falling below mid-level (at [174]). This finding was based upon the following factors: the requisite intention, as part of the joint criminal enterprise, was that one or more of the occupants of the Kluger would be killed; the weapon used was a firearm; the offence was committed in company; the conduct involved a grave risk of death or serious injury to other persons and there was minimal planning. His Honour found that the primary motive was a combination of outrage that some of Mr Rodgers' group had come to the applicant's family house and smashed the door, injuring the applicant, and that the shooting was intended as a crude form of retribution and deterrence of further acts of violence or damage. His Honour observed that although this conduct had both aggravating and mitigatory aspects, on balance, it was "overwhelmingly" aggravating. 2. His Honour was satisfied that the objective seriousness of the applicant's offending was mitigated by her youth and consequent immaturity and by the fact that she was encouraged to join the criminal enterprise by her father (at [172]-[174]). 3. The sentencing judge then considered the applicant's subjective case (at [175]-[196]). 4. His Honour noted that the applicant identifies as being a young Indigenous woman from the Worimi Bidjigal mobs (at [175]). She was primarily raised by her father, who is not Indigenous. He was not supportive of her having contact with her mother due to her mother's substance abuse issues. His Honour noted that the applicant acknowledged that some of her father's values were not pro-social; he placed importance on family loyalty, revenge and retribution and he encouraged the use of violence to solve interpersonal conflicts (at [177]). His Honour accepted Dr Kasinathan's evidence rejecting the applicant's diagnosis with bipolar disorder and PTSD. 5. When the applicant was approximately 15 years old, her father sent her to reside with a paternal aunt in Maitland and then a paternal aunt and uncle in Queensland (at [178]). This arrangement was in response to her risk-taking behaviours and disengagement at school. His father hoped that the influence of a female role model would be beneficial. The placement did not work. Although the applicant later expressed appreciation that her family extended their support, she was not in the mindset for positive change at that time. 6. His Honour noticed that at the time of the offending the applicant had recently returned to reside with her father and had minimal parental supervision or guidance from him (at [179]). Her father was disappointed that she had not taken advantage of the opportunity to reside with her aunt. She continued to participate in risk taking behaviours. Her perspective was that her father "appeared to give up on her" at that time and ceased attempting to place parental boundaries around her. Her risk-taking behaviours and substance use escalated as a result. 7. The applicant attended three different high schools (at [180]). She was expelled in 2016 due to significant behavioural problems, including fighting and possession of drugs on school property. Although she completed her Year 10 certificate in Queensland, she did not recommence her studies on returning to New South Wales. Instead, she gained casual employment with a supermarket. 8. His Honour noted the findings of Mr Gillespie, a psychologist, in his report (at [181]-[182]). Mr Gillespie had administered a clinical tool for the assessment of violence risk in adults, known as the Historical Clinical and Risk Management tool (HCR-20). He concluded that there were no identified risks within the clinical risk factors. At the time of sentence, the applicant had actively sought support and help and had proven that she can safely manage her symptoms. He opined that there did not appear to be any evidence of current/recent behavioural instability or cognitive dysfunction. 9. Mr Gillespie concluded that the applicant is likely to have future problems with her living situation, personal support and stress or coping. Her time in the adult correctional system is likely to expose her to high levels of violence as a means to an end and a problem-solving strategy. Despite this, his Honour observed that "[s]he has good external personal and professional services in place currently and has shown excellent compliance and responsiveness to her treatment and supervision." His Honour noted that the applicant's diagnosis of bipolar disorder and PTSD had been rejected. 10. His Honour noted the applicant's drug history (at [183]). She had periodically used cannabis and ecstasy and smoked tobacco daily. Following a sporting injury in 2016, her use of drugs escalated, and she began to use methamphetamine. This increased to daily use in December 2016. She was using illicit drugs daily at the time of the offence. 11. His Honour turned to consider the applicant's criminal history, which included offences of violence (at [184]-[197]) (discussed further in my consideration below). The applicant was on bail for an offence of violence at the time of this offending. His Honour accepted that the applicant genuinely regrets her actions and the death of Jesse Thompson, however the degree of remorse was tempered by her refusal to admit guilt for the offence. 12. In light of the favourable background report and positive character references, his Honour found that the applicant had "very good" prospects of rehabilitation, although there was a need for extended supervision in the community, warranting a finding of special circumstances (at [189]-[196]). His Honour extracted some of the favourable Background Report which disclosed that whilst at Reiby Youth Justice Centre, the applicant had completed Year 11 and three Year 12 ATAR subjects. It noted: "[The applicant's] recent school report indicates that she has the potential to achieve at a high standard, reflective of her academic capacity and dedication to her studies … Not only is [the applicant's] personal application to her studies noted, but also her being a mentor and positive role model to other students. She is considered to be a valued member of the student cohort and has represented the school for various events. [The applicant] recently commenced studying a Bachelor of Psychological Science through the University of New England as a mature age student … Prior to the commencement of her psychology degree, she completed an introduction to psychology course as a requirement to tertiary study." 1. His Honour went on to note that the Background Report recorded that since being in custody, the applicant has only maintained community contact with pro-social peers (at [190]-[191]). Staff noted that she had distanced herself from anti-social, pro-criminal associates and has become a role model to younger detainees within the centre. It was further noted that she now has a strong connection to her culture which she has embraced while in custody, taking a lead role in cultural programs and significant cultural events whilst engaging with Indigenous mentors and Elders. At the time of the report, she was actively engaged in the development of an Indigenous program that focuses on addressing violence and offences related to violence in young Indigenous girls and women who have come into contact with the justice system. She was also engaged with another mentoring program for young people involved in the criminal justice system and has actively participated in other programs of a similar nature. 2. The Background Report concluded that her participation in evidence-based offence focused interventions has significantly reduced risk factors that contributed to her offending (at [192]). She will require continual intensive support, particularly focused on her reintegration into the community. Dr Gillespie concluded the following, in relation to her prospects for rehabilitation "In her case, the most consistent risk factors for future violence related to the child rearing experiences and pro-violent attitudes of the parenting style she was exposed to and the environment in which she was raised. The effects of these factors are likely to be reduced significantly after she is released due to two main factors. Firstly, she has chosen to live with an aunt in Queensland who does not share the same values and attitudes towards violence that are espoused by her father and brother and secondly, it is likely that her father and brother will remain incarcerated after her release. These situations will give her the opportunity and support to cement her own identity and future outside of that potential influence." Ground of appeal – manifest excess Applicant's submissions 1. The applicant submitted that the sentence discloses error although the error is not identifiable in the reasons of the sentencing judge. Although no findings were challenged, it was further submitted that the sentence imposed does not reflect the findings made by his Honour with respect to the objective seriousness of the offence or her subjective circumstances. 2. The applicant submitted that the sentence of imprisonment for 17 years suggests that inadequate weight was given to factors relating to the applicant's youth and the importance of her rehabilitation, applying the principles discussed in Sarhene v R [2022] NSWCCA 79 (per Hamill J, with Ierace J agreeing at [25]). It was noted that the applicant was 17 years old at the time of the offending and subject to familial pressure and influence. This included a "mis-education" from her father about the importance of family loyalty, revenge and retribution. The applicant also noted his Honour's finding that the applicant had "very good" prospects of rehabilitation. Counsel for the applicant made oral submissions that the applicant has had a "dramatic turnaround" in custody and has effectively been rehabilitated. Crown submissions 1. The Crown submitted that the applicant has not established that the sentence imposed was unreasonable or plainly unjust; the fact that the applicant's criminal liability was as a party to a joint criminal enterprise was considered by the sentencing judge in assessing the objective seriousness of the offence. The Crown submitted that the sentence was commensurate with his Honour's assessment of objective seriousness as being below mid-level, mitigated by the applicant's youth, degree of remorse and difficult upbringing but with the countervailing factors of the applicant's record of previous convictions for violent offences and the fact that the applicant was on bail for these offences. 2. The Crown also submitted that there was no finding by the sentencing judge that the applicant was motivated by pressure or persuasion by her father. Consideration 1. The principles applicable to a complaint that a sentence is manifestly excessive are well settled and have been conveniently summarised in numerous decisions of this court. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 they were summarised by R A Hulme J, with whom Bathurst CJ, Leeming JA, Hamill J and I agreed at [443] as follows: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this Court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust." 1. The starting point for the consideration of this ground is that the applicant accepted the sentencing judge's findings and facts. Those findings included that the applicant was to be sentenced on the basis that she was part of a joint criminal enterprise to kill the deceased and/or anyone else in the vehicle as an act of retribution. The objective seriousness of her offending, as opposed to that of her father and brother, was "significantly mitigated" by her youth and consequent immaturity, and the fact that she was "encouraged" to join the criminal enterprise by her father who, his Honour found "should have prevented her from joining it". As his Honour observed when sentencing the applicant's father, his offending was an "appalling failure" as a parent (at [153]). 2. Senior counsel for the applicant accepted under this ground that the applicant became "swept up" in the events as is evidenced by her actions enumerated above at [29]. Despite this, it was submitted that the applicant's "perspective of the world" had been "poisoned" by a miseducation about family loyalty, revenge and retribution and that she had been "pressured" by her father to join the enterprise. To similar effect it was submitted that the applicant had been "overpersuaded" by her father. 3. I have considered the submission that the applicant was "pressured by her father" to become involved in the enterprise. The difficulty with that submission is that the sentencing judge did not make any finding that the applicant had been "pressured" in any way; simply that she had been "encouraged" by her father to join the enterprise. Nor was his Honour specifically invited to make any finding that the applicant had been "pressured" by her father. The distinction may be a subtle one, but it is significant. 4. The applicant was sentenced on the basis that her childhood was such that she had a mindset which led to her being encouraged by her father to become involved in this enterprise and she did. But that is not the same as a finding that she was coerced, pressured, or "overpersuaded" to join this particular enterprise. The fact remains that his Honour assessed the objective seriousness of her offending to be significantly lower than that of her two co-offenders because of her youth and the fact that she was encouraged by her father to join in. 5. I have also considered the submission that the sentence does not reflect the sentencing judge's finding of objective seriousness, especially given that there was no planning and that she was there at the "heel of the hunt". Again, I am satisfied that the sentence is commensurate with both the objective seriousness of the offending in which this young father of two was senselessly killed, even having regard to the applicant's strong subjective case. 6. There can be no doubt that the applicant presented a very favourable subjective case on sentence. Her pathway to rehabilitation in custody was remarkable. The fact that so many workers had provided favourable letters to the sentencing court was a testament to her growing maturity and dedication to rehabilitation. At the time of the murder the applicant was on bail for an offence of violence, had been sentenced for other offences of violence, was taking methamphetamine and was involved with anti-social peers. She had already been dealt with in the Children's Court for reckless wounding, having stabbed a man in the back with a knife causing him to suffer traumatic renal injury that required hospitalisation. She was also dealt with for detaining a person for advantage having demanded that a 19 year old woman give her a lift whilst being armed with a baseball bat. She received control orders for these offences. She was later arrested and charged with, inter alia, assault occasioning actual bodily harm after repeatedly punching the victim to the face and demanding buprenorphine from her. This was the offence she was on bail for at the time of the murder. 7. The applicant had been in juvenile detention for four years by the time of her proceedings on sentence. By that time, she had turned her life around in a very positive way, including completing three ATAR subjects and being accepted into tertiary education. I have already set out some of the very favourable portions of the Background Report above. As his Honour noted at [195], a number of workers attested to her progress and reform from her "earlier criminal behaviour." It was on that basis that his Honour concluded that the applicant's prospects of rehabilitation are "very good". Despite this, his Honour was still satisfied that she would require extended supervision in the community. It was on that basis that he varied the statutory ratio upon a finding of special circumstances. 8. It was accepted on behalf of the applicant that the sentencing judge made favourable findings regarding her rehabilitation, but it was submitted that it should have been taken into account "even more dramatically" than it was given its significance. But his Honour clearly took all of this material into account and made positive findings as to the applicant's rehabilitation as a result. It is not apparent to me that his Honour's sentencing discretion miscarried because of the manner in which he addressed the applicant's subjective case. 9. In circumstances where no challenge was made to any of the findings made by the sentencing judge, this appeal turned on the identification of possible explanations for what was contended to be an unreasonable and plainly unjust sentence. The difficulty with this contention is that I am satisfied that all of the matters raised on the applicant's behalf to suggest error were properly considered by the sentencing judge. The applicant will have completed her non-parole period for this murder by the time she is 27 years old. In those circumstances the sentence could not be considered to be a "crushing" one. 10. The most compelling aspects of the applicant's case on sentence were her youth, the fact that her father had encouraged her to join in the enterprise and her very positive path to rehabilitation whilst in juvenile detention. The sentencing judge had regard to all of these factors as well as all of her other subjective factors and the objective factors and arrived at the sentence ultimately imposed on the applicant by way of instinctive synthesis. The question is not whether this court would have imposed a different sentence. The question is whether the sentence imposed by his Honour was unreasonable or plainly unjust. I am not satisfied that the applicant has established that it was. 11. Accordingly, I would propose the following orders: 1. Leave to appeal is granted. 2. The appeal is dismissed. 1. WEINSTEIN J: I agree with N Adams 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: 24 April 2023