Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Jackson v R [2023] NSWCCA 121 Hearing dates: 1 May 2023 Decision date: 29 May 2023 Before: Leeming JA at [1]; Rothman J at [3]; McNaughton J at [75] Decision: (1) Leave to appeal granted; (2) Appeal allowed; (3) Quash the sentence imposed on the applicant on 5 October 2022 and resentence the applicant; (4) The applicant is sentenced to an aggregate sentence of imprisonment of 8 years and 4 months, commencing 20 July 2019 and concluding 19 November 2027, with a non-parole period of 5 years and 5 months, concluding 19 December 2024; (5) The applicant would be first eligible for parole on 19 December 2024. Catchwords: CRIME – APPEAL – Appeal against sentence – manifest excess – totality – stale offence – relationship between Bugmy factors and mental condition – sentence unfair or plainly unjust. Legislation Cited: Crimes Act 1900 (NSW), ss 33A, 97(2), 154A(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21B, 25D(2) Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King [1936] 55 CLR 499; [1936] HCA 40 Kentwell v R (No 2) [2015] NSWCCA 96 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 R v Engert (1995) 84 A Crim R 67; Court of Criminal Appeal (NSW), 20 November 1995, unrep R v Jackson [2022] NSWDC 450 Category: Principal judgment Parties: Paul Matthew Jackson (Applicant) Crown (Respondent) Representation: Counsel: S Kluss (Applicant) M Swift (Respondent) Solicitors: Ross Hill & Associate Solicitors (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2019/00223508 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: R v Jackson [2022] NSWDC 450 Date of Decision: 5 October 2022 Before: Abadee DCJ JUDGMENT 1. LEEMING JA: I agree with Rothman J that this appeal should be allowed, the sentence imposed by the District Court quashed, and the applicant resentenced as his Honour proposes. The background and submissions reproduced in his Honour's judgment enable me to explain my reasons concisely. These reasons do not repeat, and assume familiarity with, those matters. 2. The sentence of 10 years imprisonment with a non-parole period of 6½ years, considered alone, seems very high in light of (a) both offences arising out of the course of conduct, (b) the applicant's very considerable childhood disadvantage which had a direct relationship with the serious crimes committed more than two decades ago, (c) his ongoing mental illness and (d) the indications of steps towards rehabilitation. On the other hand, as the Crown emphasised, the sentence was backdated by 3 years and 3 months, rendering it wholly concurrent with an earlier sentence imposed for separate offending (and thereby graphically illustrating the danger of comparing sentencing statistics in isolation; there is a very substantial difference between the sentence imposed in this case and a sentence of 10 years imprisonment which is not backdated). Although the applicant's written submissions identified particular complaints about the application of Bugmy principles, parity and totality, his counsel confirmed at the outset of her submissions, correctly, that the only ground was that the sentence was manifestly excessive and thus did not turn on any patent error. I bear in mind that there is no single correct sentence, that the sentencing discretion is broad, that it is not to the point merely that this Court would exercise the discretion differently, and that intervention on the ground of manifest excess involves the inference that the discretion has miscarried. On balance, I am persuaded that this Court's intervention is warranted. I agree with the orders proposed by Rothman J. 3. ROTHMAN J: On 5 October 2022, Paul Jackson, the applicant for leave to appeal, was sentenced to an aggregate sentence of 10 years' imprisonment with a non-parole period of 6 years and 6 months. The learned sentencing judge, Abadee DCJ, was required to impose a sentence for two offences: aggravated armed robbery (armed with a dangerous weapon being a shortened rifle) contrary to s 97(2) of the Crimes Act 1900 (NSW); and discharging a loaded firearm with intent to resist lawful apprehension, contrary to s 33A of the Crimes Act. 4. The aggravated armed robbery carries a maximum penalty of 25 years' imprisonment and the learned sentencing judge set an indicative sentence of 8 years' imprisonment. The offence of discharging a loaded firearm with intent to resist lawful apprehension carries a maximum sentence of 14 years' imprisonment, and the sentencing judge fixed an indicative sentence of 4 years' imprisonment. The sentencing court was also required to take into account an offence on a Form 1, being the offence of being carried in a conveyance without consent of the owner, contrary to s 154A(1)(b) of the Crimes Act. The offence for which that was to be taken into account was the aggravated armed robbery. 5. The applicant raises one ground of appeal, namely: "The sentence imposed was manifestly excessive and a different sentence is warranted at law." Facts 1. Because of the plea of guilty, there were agreed facts upon which the learned sentencing judge could rely in passing sentence. The Crown case was that on 25 October 2001, the applicant, together with two co-offenders, one of whom was John Black, committed an armed robbery on the Roberts Jewellery Store in Erina, New South Wales. At the time, there were four staff members in the store: the owner Robert Hain; his son Gavin Hain (then 15 years old); and two jewellers, Robert Cheong and David Pemberton. 2. Shortly after 2:30 PM on 25 October 2001, the applicant, Mr Black, and the other co-offender pulled up outside in a Commodore motor vehicle and alighted. The motor vehicle had been stolen earlier in the day. 3. The applicant and the other co-offender entered the store. The applicant was wearing a balaclava and holding a rifle. The two offenders asked for the money in the store and the applicant pointed the gun at staff, including Gavin Hain. 4. The applicant and his co-offender located safes and demanded the location of the till. As they gained access to the till, the staff were able to activate the panic button. 5. When the panic button was operated, the applicant and his co-offender departed. They were observed getting into the car where a driver, Mr Black, was waiting. The result was that the offenders stole cash of $1,700 and jewellery of approximately $55,000 in value. 6. Coincidentally, an off-duty police officer was at a nearby café and, on hearing the alarm, observed the offenders in balaclavas entering the vehicle. He pursued the vehicle on foot. 7. The applicant leaned out of the car window and pointed a firearm at the police officer. The officer took evasive action. The applicant fired a shot into the air as a "warning shot". The police officer ceased his pursuit. 8. The off-duty police officer then waited with store staff until other police arrived. The abandoned vehicle, used by the applicant and his co-offenders, was found a short time later in a shopping centre car park. Inside the car, police found a balaclava, a baton and a jacket. 9. Police were, for some period of time, unable to identify the offenders. On 7 September 2017, 16 years after the offence, the balaclava was subjected to further DNA analysis and was matched to one of the applicant's co-offenders, John Black. Police interviewed Mr Black in 2018 and he admitted to being the driver of the vehicle for the robbery. 10. He identified the two other offenders as the applicant, whom he called "Jacko", and Stewart Daley. Listening devices were lawfully used to monitor communications between Mr Black and the applicant and, during the conversations, inculpatory statements were made by the applicant and recorded. On 19 May 2022, a further DNA analysis was performed on the jacket and the DNA was matched to the applicant. Sentencing Remarks 1. As already stated, the applicant pleaded guilty to these offences on 29 September 2022. The learned sentencing judge afforded a 10% discount in relation to the robbery offence and 25% discount for the firearm discharge offence, on each account for the plea of guilty. 2. He found that the firearm offence was in the mid-range of objective criminality and the robbery offence was, in terms of objective criminality, above the mid-range. The latter finding was based upon the proposition that the weapon was pointed at staff during the robbery. 3. His Honour found that there were relevant subjective circumstances that may ameliorate the sentence to be imposed upon the applicant. Those subjective circumstances included a deprived upbringing. The learned sentencing judge found that there were guarded, but not hopeless, prospects of rehabilitation. 4. In relation to the applicant's criminal history, Abadee DCJ noted that since January 1990, the applicant had only spent eight years and eight months in the community. After the subject offences were committed, the applicant committed several serious crimes, including robbery with an offensive weapon in 2006, assault with intent to rob while armed with an offensive weapon in 2006, and robbery in company in 2014. 5. Judge Abadee also took into account the opinions of Dr Coyle and Dr Machlin. Dr Coyle expressed the view that the applicant suffered from a well-entrenched depressive disorder; post-traumatic stress disorder ("PTSD"); antisocial personality disorder; and anxiety/distress. Dr Coyle attributed these issues to physical and sexual abuse of the applicant when he was in a church boys' home and also during juvenile detention. The report of Dr Coyle was prepared for solicitors for the purposes of a compensation claim. 6. Dr Machlin diagnosed a history of PTSD and that the applicant had a personality disorder, as well as an opioid abuse disorder in remission. Dr Machlin did not consider that, at the time of the assessment on which he reported, there was active depression. Judge Abadee also had regard to the impact of COVID and the significant periods that the offender had spent in lockdown whilst in custody. The Applicant's Submissions 1. The applicant submits that the sentencing judge's sentence does not take into account the disadvantage suffered by the applicant in accordance with the principles established in Bugmy v The Queen. [1] The applicant referred to the remarks of the sentencing judge particularly in relation to the comment that the Bugmy principles do not necessarily weigh in favour of a lighter sentence. The applicant submits that this comment discloses that the sentencing judge gave the principles little or no weight. 2. The applicant also criticises the lack of proper weight given to the mental health issues suffered by the applicant. To support the submissions, the applicant compares the pre-discount indicative sentence of the co-offender, John Black, in which these principles do not arise, which was only 10 months less than the applicant's pre-discount indicative sentence. 3. The applicant submits that the co-offender did not have the same issues arising either under the Bugmy principles or under the difficulties associated with COVID, or the subsequent incarceration following the offending for which the applicant was sentenced. 4. The submission is to the effect that, in those circumstances, the Bugmy principles, the greater onerousness associated with COVID, and the subsequent incarceration were given insufficient weight by his Honour. The submission accepts that the co-offender, Mr Black, was less culpable than the applicant as a result of his role as a getaway driver. 5. Further, the applicant refers to the offences being stale and that the sentence was imposed after he had served sentencing for later offending that was similar in character. Consequently, the applicant lost the opportunity to benefit from totality, and the separate terms of imprisonment are likely to lead to significantly greater punishment than if they were to have been dealt with together. The sentencing judge referred to the delay being a consequence of the applicant's behaviour, to which the applicant comments that he could not recall the offence because of his drug dependency. 6. If leave to appeal were granted and the appeal allowed, the applicant submits that he should be resentenced with due regard to his dysfunctional childhood, the principles embodied in the judgment of the High Court in Bugmy, his mental condition, the delay and his criminal and custodial history. The Respondent's Submissions 1. The Crown points out that the applicant does not take issue with the assessment of objective seriousness; the guilty plea discounts; finding of special circumstances and the non-parole period being 65% of the head sentence; nor the start date of the sentence, which takes account of totality by imposing a sentence that is almost completely concurrent with the later imprisonment and sentence of 3 years and 6 months for robbery whilst armed with a dangerous weapon. 2. The Crown does not accept that the learned sentencing judge's remarks diminish the agreed application of the Bugmy principles. The Crown submits that Bugmy goes to the overall moral culpability of the offender, which is separate and distinct from an offender's criminal history. The Crown submits that a careful review of the sentencing remarks discloses that the learned sentencing judge had due regard to Bugmy sentencing principles. 3. The Bugmy principles were, on the submission of the Crown, just one feature that had to be dealt with by the sentencing judge as part of the process of instinctive synthesis. His Honour was required to consider the grave seriousness of the offences, other aspects of the subjective case, and the need for notional accumulation between the offences. 4. The Crown refers to the circumstances involved in the offending of the co-offender, Mr Black, as very different to that of the applicant. Mr Black faced different charges with a different objective gravity. The Crown submits that the mere existence of a joint criminal enterprise does not create equal culpability among the offenders. Mr Black did not get out of the vehicle that he was driving; nor did he threaten anyone. Mr Black also did not use a firearm either in the robbery or to avoid apprehension. 5. Further, the Crown submits that the sentencing judge addressed issues of parity in some detail and that his remarks make plain that the judge took parity into account appropriately. The Crown submits that the applicant's sentence was only 10 months more than that imposed upon Mr Black, despite the applicant's much greater role in the offending. In those circumstances, the applicant cannot have a justifiable sense of grievance. 6. On the issue of totality, the Crown submits that the sentence of Weber SC DCJ, when he imposed the sentence for the later offending, was before Abadee DCJ. Therefore, the Crown submits that the sentence imposed, and now subject to the application for leave to appeal, was backdated so that it effectively subsumes the sentence for the 2014 offences that was imposed by Weber SC DCJ. As a consequence, the effect of the manner in which Abadee DCJ imposed the sentence and the starting date of the sentence discloses that Abadee DCJ properly took into account the issue of totality. Further, the Crown disputes that the applicant could not recall the offences in light of the recorded statements he made to Mr Black in 2019 which were the subject of lawful intercept. 7. On resentencing and generally on the question of manifest excess, the Crown submits that the aggregate sentence was appropriate, having regard to the applicant's role in the offending, the serious nature of the offence, the separate and serious criminality of discharging a firearm, and the applicant's criminal history. Further, the applicant threatened violence in the presence of a child, which is an aggravating circumstance. Lastly, the Crown points to the finding by the learned sentencing judge that there were guarded prospects of rehabilitation. Consideration 1. The only ground of appeal upon which the applicant relies in order to support a grant of leave to appeal and, if leave be granted, the appeal itself is that the sentence was manifestly excessive. The appeal is against the aggregate sentence and any criticism of the indicative sentences is for the purpose only of informing a view as to the ultimate sentence imposed. 2. Manifest excess is a species of manifest error and arises when error cannot be identified, but the result of the exercise of the discretion is unreasonable or plainly unjust, such that the Court on appeal may infer that there has been a failure properly to exercise the discretion, even though the error cannot be identified. [2] 3. Where, as here, an applicant for leave to appeal relies on a failure to give adequate weight or properly determine a factor in sentencing, such "error" does not give rise to an identifiable error, unless it can be said that the alleged "error" rose to the level of a failure to take into account those relevant considerations. 4. Ordinarily, relying upon a failure to give a particular factor "sufficient" weight is not a basis which permits appellate intervention. On the other hand, the submissions of the Crown based upon the lack of a justifiable sense of grievance in relation to the sentence passed on the applicant's co-offender does not deal with the issue raised by the applicant. 5. The applicant does not rely upon a ground of appeal that raises disparity in sentencing. Rather, the applicant points to the relationship between the sentence imposed upon him and the sentence imposed upon his co-offender to demonstrate the failure to take into account, in the manner required, the principles associated with mental illness, totality and the Bugmy principles. 6. As is often the case in the District Court, the sentence was imposed and the Remarks on Sentence delivered ex tempore. District Court judges often deal with several sentencing hearings in one day and impose the sentences ex tempore. 7. Such a factor renders more imperative the caution that is oft-repeated that the Court on appeal should not be concerned with "looseness of language" nor "unhappy phrasing". Nor should the Remarks on Sentence be "construed minutely and finely with an eye keenly attuned to the perceptions of error". [3] 8. The foregoing comments were made in the context of judicial review of the decision of a Minister. Nevertheless, the principle has been applied in relation to appeals and ought to be applied in relation to appeals, particularly in circumstances where, as here, the Remarks on Sentence or result of the exercise of discretion below, has been delivered ex tempore. Obviously, on a reading of the Remarks on Sentence in this case, those remarks were revised; but the injunction or enjoinder as to the manner of treating Remarks on Sentence as decisions at first instance nevertheless applies. 9. In determining whether a judgment is manifestly excessive, the Court is required to be satisfied that the sentence was outside the range of available sentences in all of the circumstances of the case. [4] 10. In referring to "all the circumstances of the case", it is necessary to examine not merely the objective seriousness of the offending, but all of the circumstances of the case, including the subjective circumstances of the offender. The "range" of sentences available, accepting as one must that there is more than one correct sentence, is a sentence that takes account of both objective and subjective circumstances of the offence and the offender respectively. 11. I turn, then, to the Remarks on Sentence and the treatment of the subjective circumstances of the applicant. The applicant, as already stated, complains that the learned sentencing judge remarked that the principles in Bugmy do not all weigh in favour of a lighter sentence and that they may sometimes indicate a greater need for community protection. 12. As a statement of general principle, such a comment is unassailable. It accords, almost precisely, with the comments of the High Court in Bugmy. It is necessary to extract the comments of the sentencing judge in this respect. At [34] and following of the Remarks on Sentence, his Honour said: "[34] He was taken away from his mother, an indigenous Australian, by his father, who was not indigenous Australian, when he was a baby; as the parents separated. His father took him to Darwin. He received little care from his father, who had a new family to look after, was also hard working and otherwise spent much time at the local pub. He went into the care of his grandparents for a time, before he was sent to Coventry Home, a place in Armidale administered by the Church of England; owing to the difficulties that the grandparents had in looking after him. There, the offender reported, he was sexually and physically abused; the sexual abuse being mainly perpetrated by members of the church. The details which the offender supplied to Professor Coyle, as the latter chronicled in his report, certainly make for harrowing reading. … [40] At the forefront of the offender's submissions was his reliance upon certain psychological orders which, it was said, engaged the principles from Bugmy v R (2013) 249 CLR 571. The presence of psychological conditions was supported by reports from Professor Coyle and Mr Machlin. [41] Professor Coyle reported being informed by the offender that he had been physically, sexually and psychologically abused whilst a resident of Coventry Home and incarcerated at the Worimi Shelter and Minda Remand Centre. This led, in the expert's opinion, to his developing PTSD, and comorbid Major Depressive Disorder with Anxious Distress and comorbid Antisocial Personality Disorder. These conditions, in turn, directly caused his substance abuse and ensuing criminal behaviour; and the substance abuse, in turn, exacerbated his psychological factors. [42] A matter of some significance to the application of Bugmy principles was Professor Coyle's evidence of his challenging the offender as to why he had not sought help and the offender's response was a sense of shame, embarrassment and belief that no one would believe him. To Professor Coyle, this was a typical response of victims of institutional child sexual abuse. … [45] The offender's Counsel submitted that on the evidence of these psychologists, the Court should apply Bugmy principles and in particular, recognise, in the offender's favour, the causal connection between the offender's exposure to various forms of disadvantage from a young age and his drug taking and consequent criminality, as impacting upon his culpability and moderating the weight to be given to general and specific deterrence in the synthesising of sentencing considerations. [46] The Crown did not dispute that submission, whilst noting that the weight to be placed on Bugmy principles was a matter for the sentencing judge. [47] I accept, unreservedly, the proposition that Bugmy principles are engaged, in the sense articulated on the offender's behalf. It is important, also, to note that they are not diluted on account of the offender's omissions to either get help or because of his past criminal history. As the High Court emphasised in Bugmy, the effects of childhood disadvantage are usually enduring and it is not inherently surprising, in the circumstances, that he did not seek out professional help to aid his rehabilitation. [48] However, as the plurality recognised in Bugmy at [44], the principles are not all one way, in terms of indicating a more lenient sentence then would otherwise be imposed. An inability to control a violent impulse, because of frustration, may heighten the importance of protecting the community from the offender. Moreover, the presence of a prior significant criminal history, might reduce the likelihood that effective rehabilitation can protect the community." [5] 1. The learned sentencing judge referred to the "Bugmy principles" as being of "some significance". He referred to the submission of behalf of the applicant, based on the Psychologists' Reports that the sentencing court should "apply Bugmy principles", the lack of dispute from the Crown as to that submission, the unreserved acceptance that the Bugmy principles are engaged, and then the comment that the principles are not "all one way". 2. As earlier stated, the latter aspect is unarguably correct as a statement of general principle. The sentencing judge does not again refer to the deprivation issue and the principles established or reiterated by the High Court in Bugmy. 3. There are two aspects of the foregoing that require comment. First, largely on the basis of the submissions of counsel below, the sentencing judge referred to the psychologists' reports as factors requiring the application of the Bugmy principles. The principles established by the High Court in Bugmy relate to experience, usually in early childhood, of growing up in a dysfunctional environment, usually one in which alcohol abuse and violence are endemic. 4. The High Court referred to such a background as one that "may compromise the person's capacity to mature and to learn from experience." [6] It is a feature that is relevant to the determination of the appropriate sentence. Further, the plurality judgment refers to "profound childhood deprivation" not diminishing with the passage of time, nor with repeated offending. 5. Apart from the effect of compromising a person's capacity to mature and learn from experience, such deprivation normalises alcohol abuse, normalises violence as an appropriate reaction to events and normalises violence otherwise as an ordinary tool for the achievement of wants and desires. Such childhood deprivation may arise and, if it arose, would need to be given effect, whether or not there were psychological issues suffered by an offender either as a result or otherwise. 6. Often such childhood deprivation, particularly when associated with trauma, may cause a psychological condition, for example, PTSD and sometimes facilitate other conditions or disorders. But such an effect may not arise. A person may have a childhood in which the person suffered the kind of deprivation to which the High Court referred in Bugmy, without any psychiatric or psychological condition or disorder arising. 7. Where a person has suffered such childhood deprivation and also suffers mental illness, the Court is required to take account of each of those circumstances and not to elide the two quite separate issues. Of course, where it can be shown that the psychiatric condition was caused by the childhood deprivation and/or trauma to which, otherwise, the Bugmy principles would apply, it is also necessary to ensure that there is no double counting for what is, in effect, the same issue. 8. In this case, the PTSD from which the applicant suffers was caused by the sexual abuse in Coventry House. The Bugmy issues arise as a consequence of the environment in which he was reared by his father in his early childhood and the other deprivation suffered. The issues are quite separate. 9. It is not clear from the Remarks on Sentence, even from the extract above, that the sentencing judge dealt with the subjective circumstances of the mental illness and PTSD and separately with the "Bugmy principles". 10. Further, while I suspect that the passage extracted was intended to indicate that the Bugmy principles were applied to the credit of the applicant, such conclusion is not expressed. The learned sentencing judge referred to the Bugmy principles, referring to the "two-edged" nature of the principles and their application, without expressing a view as to whether the principles were being applied to the credit of the applicant as an ameliorating factor in the sentencing process, as an aggravating factor relating to the risk posed by the applicant in line with the statements of Gleeson CJ in R v Engert, [7] or whether the two factors cancelled each other out, rendering it neutral. 11. At the time that this offending occurred the applicant was 29 years of age. He was a young adult who had, it seems, not fully matured. At the time of sentencing for the offence he was 50 years of age. 12. Whether or not the staleness of the offending is as a result of the fact that the offender did not confess the offence and his involvement in it, the offence was a stale one that required particular care in determining an appropriate sentence. Pursuant to the terms of s 21B of the Crimes (Sentencing Procedure) Act 1999 (NSW), the learned sentencing judge was required to sentence the offender in accordance with the sentencing patterns and practices at the time of sentencing, unless, relevantly, the applicant established that there are exceptional circumstances. No party has suggested that course and I do not deal with whether the existence of psychiatric conditions and the suffering of a deprived childhood would amount to exceptional circumstances. [8] 13. It seems that the learned sentencing judge was led into error by the applicant's counsel eliding the psychiatric conditions and the deprived childhood in a manner that was impermissible and without differentiating the two. Indeed, on one view, where the effects arise from different circumstances, there may be a compounding effect. 14. Further again, there was no material before the learned sentencing judge to suggest that, in relation to the Bugmy principles, the applicant suffered social exclusion or, as a result of being raised for some of the time by his father who was not indigenous, he was forced to grow up in a "white man's world". [9] 15. Notwithstanding the foregoing comments, the learned sentencing judge dealt with the mental illness aspects and dealt with the factors associated with the principles summarised in Bugmy. It would, in those circumstances, be difficult to suggest that his Honour failed to take into account a relevant consideration. 16. Instead, it is more likely that the issues go to the weight to be provided to each of the factors and the conclusion that the sentencing judge reached on the appropriate sentence to meet the purposes of sentencing. Such a process is one that the High Court described as particularly difficult and any appellate court would need to take account of the proposition that different judicial officers will come to a different conclusion in determining how best to meet the purposes of sentencing. As has been stated on a number of occasions, there is no one correct sentence and a sentencing judge who imposes a sentence that is within range is not committing error. 17. Nevertheless, the range within which a sentence must fit relates to the particular offence and the particular offender. It is not sufficient to determine a range based solely on objective seriousness of the offence nor on a basis that is different from the particular circumstances of the offence and the offender with which a judge is dealing. 18. Given the staleness of the offending, the age of the offender at the time that the sentence was to be imposed, the existence of significant psychiatric issues and the factors associated with the deprived childhood and arising under the principles summarised in Bugmy, in my conclusion, the sentence imposed upon the applicant is manifestly excessive. This is a conclusion based upon the particular circumstances of this offence and this offender. 19. It is not possible to identify whether the unreasonableness, or plainly unjust nature, of the sentence imposed is a result of a failure properly to apply the circumstances of Bugmy; the circumstances relating to totality; or a failure properly to assess the effect of the mental health issues suffered by the applicant. In those circumstances and on the basis that I have concluded that the sentence imposed is unreasonable and/or plainly unjust, manifest error has occurred and the sentence imposed on the applicant is manifestly excessive. Resentencing 1. As a consequence of the foregoing finding of error, it is necessary to resentence the applicant. [10] In the absence of any substantial challenge to the objective seriousness of the offences, I reiterate the conclusion of the learned sentencing judge and take into account each of the factors to which the sentencing judge referred, as set out in his reported judgment to which earlier reference has been made. 2. Over and above the foregoing, I take account of systemic background of deprivation suffered by the applicant during his childhood which, to some extent, explains the applicant's "recourse to violence…such that the [applicant's] moral culpability for the inability to control that impulse may be substantially reduced" [11] and I take it into account to the credit of the applicant in a manner that ameliorates the sentence to be imposed. 3. Without double counting the two effects, I also take into account the psychiatric conditions suffered by the applicant and, essentially, caused by the sexual abuse perpetrated on him, separate and distinct from the systemic disadvantage and exposure to alcoholism and physical abuse. 4. Further, I take into account totality in relation to the two offences for which the applicant is to be sentenced and bear in mind that each offence arises out of the one course of conduct and, therefore, requires substantial concurrence. In sentencing for the aggravated armed robbery offence, I also take into account the offence on the Form 1, being that he allowed himself to be carried in a motor vehicle knowing that it was stolen, being the motor vehicle used in the aggravated robbery. The learned sentencing judge applied a discount of 10% for the armed robbery offence and 25% for the firearm offence on account of the plea of guilty and, given the timing of the plea, this is, subject to a residual discretion, mandated by the provisions of s 25D(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 5. I am mindful that the learned sentencing judge imposed an aggregate sentence. Given that there are only two sentences to be imposed, such a course would ordinarily not be necessary. However, the sentencing judge was required to factor the later offence for which a sentence had already been imposed and, for that reason, I would also impose an aggregate sentence. 6. As already indicated, I am mindful of the significant criminal history of the applicant and also mindful that he was sentenced to a subsequent offence which, in the scheme adopted by the learned sentencing judge, was rendered almost wholly concurrent with the sentences being imposed. I intend to mirror that approach. 7. Apart from the already-mentioned Bugmy issues, mental health concerns and staleness, it is worth noting that the applicant has shown positive signs which allow a more sanguine appraisal of his prospects of rehabilitation. He has entered a methadone program, his drug issues are in remission currently, and in his last period of liberty he had stable accommodation, all of which point to a possible turnaround in his behaviour. Now that his mental illness issues have been identified, no doubt parole conditions will include community treatment which will further improve his prospects. This adds to the need for a less severe non-parole period. 8. Bearing in mind the principles that underpin the judgment of the High Court on totality, it is necessary to set a sentence on the basis that all of this sentence and the subsequent offence for which the applicant has already been sentenced, were to be imposed at the same time. [12] I also take into account the more onerous conditions associated with the restrictions during COVID and I find, as did the learned sentencing judge, special circumstances and fix a reduced non-parole period. I find special circumstances on the same basis as did the learned sentencing judge, as well as on the basis outlined above. 9. I set indicative sentences as follows: for the offence of discharge loaded firearm with intent to resist lawful apprehension contrary to s 33A of the Crimes Act 1900 (NSW), the indicative sentence is 3 years; and for the offence of aggravated armed robbery (armed with a dangerous weapon, shortened rifle) contrary to s 97(2) of the Crimes Act 1900 (NSW), taking into account the offence on the Form 1, the indicative sentence is 7 years. As a consequence of the foregoing, I propose that the Court make the following orders: 1. Leave to appeal be granted; 2. Appeal be allowed; 3. Quash the sentence imposed on the applicant on 5 October 2022 and resentence the applicant; 4. The applicant be sentenced to an aggregate sentence of imprisonment of 8 years and 4 months, commencing 20 July 2019 and concluding 19 November 2027, with a non-parole period of 5 years and 5 months, concluding 19 December 2024. 5. The applicant would be first eligible for parole on 19 December 2024. 1. McNAUGHTON J: I also agree with Rothman J that this appeal should be allowed, the sentence imposed by the District Court quashed, and the applicant resentenced as his Honour proposes. His Honour has set out the background of the matter, the submissions made on the appeal as well as the legal principles involved. This allows me to provide concise reasons. 2. As both Leeming JA and Rothman J have observed, and consistent with well-established principle, there is no single correct sentence. It is not appropriate to intervene where no patent error has been identified just because this Court would come to a different outcome. Rather, the Court must find that in all the circumstances the sentencing judge's discretion has miscarried. 3. This is a difficult matter as it involves not only Bugmy considerations, but also related drug addiction (in remission), institutional sexual abuse as a child, serious ongoing mental illness, serious but decades-old stale index offending, palpable signs of positive steps towards rehabilitation, and issues involving totality and parity. 4. With these factors in mind, and on balance, I am of the view that the aggregate sentence of 10 years with a non-parole period of 6½ years is manifestly excessive. Accordingly, I agree with the orders imposed by Rothman J. ********** Endnotes 1. (2013) 249 CLR 571; [2013] HCA 37. 2. House v The King [1936] 55 CLR 499; [1936] HCA 40; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Bugmy, supra. 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, citing with approval Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 322. 4. Dinsdale v The Queen, supra; Hili v The Queen (2010) 242 CLR 520 at 538-539; [2010] HCA 45; Bugmy, supra. 5. Remarks on Sentence, R v Jackson [2022] NSWDC 450 at [34], [40]-[42], [45]-[48]; Appeal Book, pp 16-19. 6. Bugmy, supra, at CLR 594, [43] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). 7. (1995) 84 A Crim R 67; Court of Criminal Appeal (NSW), 20 November 1995, unrep. 8. Crimes (Sentencing Procedure) Act 1999 (NSW), s 21B(3)(b). 9. Kentwell v R (No 2) [2015] NSWCCA 96 at [13] (Bathurst CJ) and [79]-[94] (Rothman J, with whom Bathurst CJ and McCallum J agreed). 10. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. 11. Bugmy v R (2013) 249 CLR 571; [2013] HCA 37. 12. Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70. 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 May 2023