Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v DH; R v AH [2014] NSWCCA 326 Hearing dates: 5 December 2014 Decision date: 19 December 2014 Before: Leeming JA at [1] Simpson J at [2] Button J at [23] Decision: (1) The Crown appeal against the sentence imposed upon AH is dismissed. (2) The Crown appeal against sentence imposed upon DH is dismissed. Catchwords: CRIMINAL LAW - Crown appeal against sentence - robbery with an offensive weapon causing grievous bodily harm - whether sentence manifestly inadequate - whether sentencing judge erred in assessment of the prospects of rehabilitation of one respondent - consideration of the respondents' respective roles in the criminality - subjective circumstances of each respondent "wholly exceptional" - discussion of the discretion reposed in a sentencing judge Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 15A, 17, 19 Crimes Act 1900 (NSW), s 98 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 21A(3), 44(2) Criminal Appeal Act 1912 (NSW), s 5D Cases Cited: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Johnson v The Queen [2004] HCA 15; 78 ALJR 616 Mulato v R [2006] NSWCCA 282 R v O'Donoghue (1988) 34 A Crim R 397 Category: Principal judgment Parties: Regina (Appellant) DH (Respondent) AH (Respondent) Representation: Counsel: G Rowling (Appellant) A Francis (Respondent DH) P Strickland SC (Respondent AH) W Hunt (Respondent AH) Solicitors: Solicitor for Public Prosecutions (Applicant) R Dunlop (Respondent DH) Legal Aid NSW (Respondent AH) File Number(s): 2013/254012013/231203 Publication restriction: Non-publication of any information or material that may lead to the identification of the offenders (s 15A Children (Criminal Proceedings) Act 1987 (NSW)) Decision under appeal Jurisdiction: 9101 Date of Decision: 01 September 2014 Before: Craigie SC DCJ File Number(s): 2013/25401 2013/231209 Judgment 1LEEMING JA: I agree with the reasons of Simpson J and Button J. In particular, I agree that where the evidence establishes wholly exceptional circumstances, then this Court must respect the discretion of the sentencing judge to impose a wholly exceptional sentence. That was the case here. I agree with their Honours that both Crown appeals must be dismissed. 2SIMPSON J: I have read in draft the judgment of Button J. Subject to what follows, I agree with the orders his Honour proposes, and, generally, with his reasons. I adopt his Honour's account of the relevant facts. 3The task of a sentencing judge, in every case, is to strike a balance between two competing sets of relevant considerations. One set of considerations centres around the objective gravity of the offence in question. Where (as here) the offence is of considerable gravity, that consideration points towards a more severe sentence. Aggravating circumstances of the kind listed in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Procedure Act") are relevant to this assessment. The other set of considerations lies in any mitigating circumstances, of the kind listed in s 21A(3) of the Sentencing Procedure Act. Circumstances personal to the offender are often relevant to this assessment. Where those circumstances are favourable, they point towards ameliorating the severity of the sentence. Frequently, it is not easy to reconcile these directly conflicting considerations. 4The exercise is further complicated when the offender is a child. By s 3 of the Children (Criminal Proceedings) Act 1987 (NSW) ("the Children (CP) Act"), a child is any person under the age of 18 years. Both of the present offenders were, at the time of the offence, children, within the meaning of the Children (CP) Act. AH was 17 years of age, DH was 16. Section 6 of the Children (CP) Act provides as follows: "6 Principles relating to exercise of functions under Act A person or body that has functions under this Act is to exercise those functions having regard to the following principles: (a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them, (b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance, (c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption, (d) that it is desirable, wherever possible, to allow a child to reside in his or her own home, (e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind, (f) that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties, (g) that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions, (h) that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim." 5Section 6 is a statutory direction to judges sentencing children to attempt a further reconciliation of apparently conflicting sentencing objectives. On the one hand, child offenders must be made responsible and accountable for their criminal activities. On the other, due recognition must be given to the immaturity that may have played a role in their decision making processes, and, importantly, their potential rehabilitation. 6The exercise that confronted Craigie DCJ was particularly difficult. That is because the competing considerations are at the extremes. At one extreme, the offence was one of utmost gravity. In company with two other offenders, at 3.00am, the respondents invaded the home of the victims. Each offender was armed, one with what appeared to be a firearm, one with an axe, DH with a knife, and AH with a baseball bat. DH held the knife at the throat of the female victim. One of the co-offenders struck the male victim at least four times with the axe, inflicting severe traumatic brain injury that was life threatening. It is difficult to imagine a more severe example of the offence of armed robbery. If those facts stood alone, and if the offenders had been adults, a sentence at the top of the available range could have been expected. 7But those facts did not stand alone. First, the respondents were, within the meaning of the Children (CP) Act, children. Craigie DCJ was obliged to take into account all of the principles set out in s 6, and attempt to give due weight to the competing considerations. 8The evidence pointed strongly to a conclusion that steps taken towards rehabilitation prior to sentencing had been effective. Button J has referred to AH's "autobiography" which, if taken at face value (and there is no reason not to) is indicative of a significant level of maturation and insight. That it should be taken at face value is confirmed in a report of the Office of Juvenile Justice prepared for sentencing. The authors of the report wrote: "[AH] is currently engaged in full-time education ... he is currently enrolled in a Year 12 general education course. Perusal of [AH's] school report dated 03/06/2014 reflects excellent commitment and school performance, indicating that [AH] makes a consistent effort in class; he is an excellent role model to former students; he is always helping other students and staff; and he has obtained numerous awards for his excellent behaviour and school performance. [AH] has also completed courses in construction occupational health and safety; workplace hygiene and assisted sports leaders." 9The evidence of DH's rehabilitation was less powerful. Moreover, DH had a significant criminal history. Nevertheless, such evidence as there was suggested substantial progress. He wrote a letter expressing his remorse, and his plans for future education and conduct. Before Craigie DCJ were certificates of educational attainment, which universally attested to his efforts while in custody. 10Craigie DCJ was well aware of the task confronting him. It is quite clear that he recognised the extreme gravity of the offence. Button J has extracted some passages from the Remarks on Sentence that make this perfectly clear. It is equally clear that he was favourably impressed by the evidence of rehabilitation on the part of both respondents. It was also proper to attribute weight to the circumstances of the respondents' early lives, including their time living amidst civil war, and the impact of that upon their parents and the guidance they were able to provide to their sons. 11The attribution of weight to each of these factors is a matter for the sentencing judge. So much was stated by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]. With respect to the circumstances of that case, but of general application, the Court said: "[24] ... The difference between the Court of Criminal Appeal's assessment of the appropriate sentence and [the sentencing judge's] assessment may be explained by saying that [the sentencing judge] gave too little weight to some factors and too much weight to other factors. However, within a range of sentences for this offence and this offender, the weight to be given to the evidence and the various, conflicting, purposes of sentencing was a matter for [the sentencing judge]." (bold added) 12It is only when the sentence imposed is below the range of sentences that can justly be imposed for the offence consistently with sentencing standards that this court is empowered to intervene. In Bugmy, the Court went on to say: "[24] ... The authority of the Court of Criminal Appeal to substitute a sentence for that imposed by [the sentencing judge] was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant's subjective case. The power could only be engaged if the court was satisfied that [the sentencing judge's] discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards." 13In the present cases, the Crown's essential assertion is that both sentences are below the range of sentences that could justly be imposed for the offence consistently with sentencing standards. The Crown has been unable to point to any specific or express error. It seeks to support its assertion by hypothesising that Craigie DCJ gave insufficient weight to the objective gravity of the offence, or alternatively (or additionally) that he gave excessive weight to the subjective circumstances of the respondents. There is nothing in the careful and comprehensive remarks on sentence of Craigie DCJ to indicate either of these errors. The Crown's position is simply that the sentences were too low to reflect the objective gravity of the offence. In the analysis of that contention, it is necessary to look separately at the head sentences and the non-parole periods. In the case of AH the head sentence (before reduction to take account of the plea of guilty) was just under 4 years and 2 months. In the case of DH (again, before reduction for the plea of guilty) it was 5 years. 14Notwithstanding the gravity of the offence, I would not be prepared, having regard to all of the relevant circumstances, to hold that these were outside the range of a proper sentencing discretion. 15In each case the sentence was (after reduction) divided equally into a non-parole period and a parole period. This represented a significant reduction, pursuant to s 44(2) of the Sentencing Procedure Act in the non-parole period, to reflect the finding of special circumstances necessary to justify departure from the statutory ratio provided by s 44(2). The Crown is, perhaps, on stronger ground in its complaint concerning the non-parole periods. Each non-parole period, under 2 years, was very lenient, when the seriousness of the offence is borne in mind. 16However, it is also necessary to balance that gravity against the progress of each respondent towards rehabilitation. That, in my opinion, justified a significant measure of leniency. It is in accord with the sentencing principles stated in s 6 of the Children (CP) Act. 17There is another matter that calls for attention. The limited role for Crown appeals against sentence is too often overlooked. This role was restated in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462. The plurality (French CJ, Crennan and Kiefel JJ) opened their judgment with a reminder of the purpose of Crown appeals against sentence. Their Honours said: "[1] The primary purpose of appeals against sentence by the Attorney-General or Director of Public Prosecutions ('Crown Appeals') under s 5D of the Criminal Appeal Act 1912 (NSW) ('the Criminal Appeal Act') is 'to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.' That purpose distinguishes Crown appeals from appeals against the severity of sentence by convicted persons, which are concerned with the correction of judicial error in particular cases ... [36] The primary consideration relevant to the exercise of the residual discretion is the purpose of Crown appeals under s 5D which, as observed earlier in these reasons, is 'to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.' That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion." (bold added, internal citations omitted) 18These remarks were echoed by Bell J, who said: "[112] Their Honours [the majority in the Court of Criminal Appeal] did not address the distinctive nature of Crown appeals, which is that they should be brought as a rarity to establish a matter of principle including, where appropriate, to redress manifest inadequacy in sentencing standards." (internal citations omitted) 19No "principle for governance and guidance" of sentencing courts was identified in the Crown's submissions as the purpose of these appeals. The purpose of the appeals appears to be for the "general correction of error" asserted against the sentencing judge. It is not to the point that the Crown sought to explain what it contended to be inadequacy of sentence by hypothesising errors in the attribution of weight to relevant sentencing considerations. That was little more than speculation, and unsupported when reference is made to the careful Remarks on Sentence. 20In my opinion the Crown has failed to establish that these appeals were brought for the "primary purpose" for which s 5D of the Criminal Appeal Act 1912 (NSW) provides. It has failed to establish that either the head sentences, or the non-parole periods, fell outside the range legitimately available. It follows that I would dismiss the Crown appeals. 21Even if I were to conclude that the sentences (either the head sentences or the non-parole periods), when passed, were manifestly inadequate, I would exercise the residual discretion that this court retains to dismiss a Crown appeal that would otherwise be successful. Evidence admitted as relevant to the exercise of that discretion establishes that both respondents have continued on their path towards rehabilitation. 22I agree with Button J that, in each case, the Crown appeal ought to be dismissed. 23BUTTON J: On 1 September 2014 in the District Court of New South Wales at Parramatta, his Honour Judge Craigie SC imposed sentences on two brothers who had been juveniles at the time of their offending. Each of them had pleaded guilty to one count of robbery with an offensive weapon causing grievous bodily harm. The applicable maximum penalty for that offence, pursuant to s 98 of the Crimes Act 1900 (NSW), is imprisonment for 25 years. Because of the age of each of the respondents, no standard non-parole period was applicable. In the case of each of them, two offences were taken into account on a Form 1; I shall provide the details of those offences later in this judgment. 24There was no dispute at the hearing in this Court that, pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) (the Act) it would be appropriate for the two respondents to be referred to by pseudonyms. For ease of comprehension and differentiation, I shall refer to the older offender, whose initials are AH, as Andrew, and the younger offender, whose initials are DH, as Damian. 25His Honour imposed upon Andrew a head sentence of imprisonment for three years six months, with a non-parole period of one year nine months. His Honour imposed upon Damian a head sentence of imprisonment for three years nine months, with a non-parole period of one year ten months and 15 days. 26Clearly, his Honour found special circumstances that led to marked divergences from the usual statutory ratio between the non-parole period and the head sentence. In the case of each respondent, the non-parole period is 50% of the head sentence. 27In each case, his Honour ordered that the sentences be served in a juvenile detention centre, pursuant to s 19 of the Act. 28The Crown promptly appealed to this Court against each of those sentences. There can be no question but that the sentences were remarkably lenient; the central question for determination by this Court is whether they were so lenient as to be beyond the discretion available to his Honour, and thereby manifestly inadequate. Objective features 29It is convenient to discuss the objective features of the offending of the two respondents together. 30In the early hours of 18 September 2012, Damian and Andrew were among four male juvenile offenders who travelled to a private home in Auburn. Each offender was disguised, and armed with a weapon. Damian possessed a large knife. Andrew possessed a baseball bat. One of the other offenders possessed an axe with a long handle. The other offender possessed an item that had the appearance of a pistol. 31Inside were a Mr Liang Sheng Chen and Ms Wei Wei Guo. They were a young couple who had recently married. A door had been left open that permitted entry. 32Three offenders, including Damian, entered the home. Andrew stood lookout outside. Damian held the knife to the throat of Ms Guo and demanded to know the location of any money. One of the other offenders pointed the axe at the head of Mr Chen and demanded money. 33A neighbour opened a nearby front door, and Andrew yelled out "Go, go, go". The offenders inside the premises decamped, taking with them a laptop computer, two mobile phones, a handbag of Ms Guo and some cash. Before they did so, one of the other offenders struck Mr Chen at least four times to the head, arms and back with the blunt side of the axe. 34Mr Chen suffered head injuries that, without medical intervention, would undoubtedly have been fatal. To state them in terms that a layperson can understand, his injuries may be summarised as follows: severe bruising of the brain, bleeding in the space surrounding the brain, and multiple serious fractures to the front of the skull and the right eye socket. His treatment included removing part of his skull to allow room for the swelling in his brain, and inserting an external drain to remove pressure caused by fluid leaking from around his brain and spinal cord. 35Although he made a reasonably good recovery, and returned to work, Mr Chen suffered permanent neurological deficits. He also suffered a serious scar to his forehead. In a moving victim impact statement placed before his Honour, Ms Guo set out the physical and emotional consequences of the morning in question. 36As I have said, each offender pleaded guilty to one substantive count of armed robbery of Mr Chen (the offensive weapon being the axe), and the infliction of grievous bodily harm upon him at the time. The proceeds of that armed robbery were the laptop, two mobile phones, and the cash that was taken. 37Each offender also requested that his Honour take into account two matters on a Form 1. The first was the robbery whilst armed with a knife of Ms Guo. The proceeds of that robbery were her handbag. That offence carries a maximum penalty of imprisonment for 20 years when dealt with on indictment. The second offence on the Form 1 was entering a dwelling with intent to commit a serious indictable offence (namely, armed robbery) in circumstances of special aggravation (namely, the infliction of grievous bodily harm upon Mr Chen). The maximum penalty for that offence when dealt with on indictment is imprisonment for 20 years. 38It can be seen that, although the three offences each captured differing criminality, they all reflected the events of that morning. They also featured a substantial degree of overlap in their elements; for example, with regard to the infliction of grievous bodily harm upon Mr Chen. 39The profound gravity of the offending on the morning in question requires no elaboration. Subjective features 40It is convenient to discuss the family history of the two brothers together, and thereafter turn to the subjective matters specific to each of them. 41Each respondent was born into a family living in the former Yugoslavia. Andrew was born in January 1995, and Damian in July 1996. There was also a third brother older than both respondents. The family is of Bosnian extraction. Each respondent was exposed to the ethnically based civil war that broke out in that country in the early 1990s. The family was directly exposed to bombings and their consequences, and fatalities inflicted in other ways. The father of the respondents fought for a time in the civil war. Eventually, the three boys and their parents were accepted as refugees in Germany. From there they migrated to Australia, arriving in 2002. At that time Andrew was aged 7, and Damian 6. 42Neither boy could speak English on arrival. Nor could their father. Not only that, their father had been badly affected by his experiences in the war. There was no dispute before his Honour that their father was suffering from post-traumatic stress disorder (PTSD) as a result of his experiences. For a time in Australia he sought help from an organisation specifically directed to helping the victims of torture and other trauma. 43The father's mental health issues increased and became problematic in Australia. The relationship between the parents of the respondents deteriorated, and eventually their mother left the family home without warning and travelled to live in Adelaide for a time. That occurred in the year 2004; Andrew was aged 9 and Damian 8. Their father was in the position of trying to care for three sons on his own and earn a living in a foreign country, the language of which he could not understand, whilst seeking to deal with his own trauma. 44 I turn now to discuss the subjective features of Andrew. 45Andrew was aged 17 at the time of the offence, and is now aged 19. 46Andrew pleaded guilty to the offences, and his Honour allowed a discount of 15% for the utilitarian value of the plea. Neither party impugned that discount in the Crown appeal. 47His Honour accepted, on the basis of that plea, along with other matters, that Andrew was remorseful. Again, that finding is not impugned by the Crown. 48By the time of the commission of the offences, Andrew was estranged from his father. He was not living at home, but moving between the homes of friends. He had not spoken to his father for some months. He was neither studying nor working. He had rejected an invitation to live with his mother. He was abusing prohibited drugs. 49Like his father, Andrew had received treatment for PTSD as a result of his exposure to in the war in the former Yugoslavia. That diagnosis was confirmed by the report of a psychologist that was placed before his Honour. 50Although Andrew had a criminal record when he came before his Honour, it was not extensive. 51On 3 August 2012, Andrew committed a number of driving offences. He was fined for them on 29 August 2012. 52It will be recalled that the offence in question was committed on 18 September 2012. 53In December 2012, Andrew was dealt with in the Children's Court for possessing a prohibited weapon, possessing ammunition unlawfully, and dealing with proceeds of crime. He was also dealt with for supplying a prohibited drug and an offence with regard to steroids. All of those offences were committed on 14 November 2012. 54With regard to the supply offence, a control order of 12 months with a non-parole period of six weeks was imposed, to commence on 27 November 2012. With regard to all of the other offences, 12 month bonds and probation for 12 months were imposed. 55On 17 November 2012, Andrew behaved in an offensive manner and took part in an affray. For the first offence a further bond was imposed in the Children's Court; for the latter, a control order was imposed for 15 months, to commence on 14 May 2013, seemingly with a non-parole period of four months. 56In short it can be seen that, other than the driving offences of 3 August 2012, the offences under consideration were the first offences ever committed by Andrew. It can also be seen that he was not on conditional liberty at the time of committing these offences. 57On the other hand, it can be said that, quite soon after the commission of the offences under consideration, Andrew took part in an affray and supplied a prohibited drug, and each of the offences was of sufficient seriousness for a control order to be imposed. 58Andrew was arrested on 25 January 2013. He made admissions to the effect that he was involved in the home invasion, had acted as a lookout, and had carried a baseball bat. He also told police that immediately prior to the offence he had consumed a large quantity of cocaine which made him feel "wild and like a king". 59Andrew had progressed very well in custody between his arrest and the proceedings on sentence. So much was demonstrated by his school reports, and the fact that he had achieved his Higher School Certificate whilst detained, an exceptionally rare occurrence. He had also undertaken a large number of courses and activities directed towards his rehabilitation. Placed before his Honour was a reflective and insightful autobiography that Andrew had written. It showed that he had come to understand the way that the destruction of his family had led to his offending. His Honour determined on the basis of the material before him that "the offender has on all indications made very considerable progress in custody." 60At the end of the remarks on sentence, his Honour made a number of evaluative judgments about subjective matters. He regarded the "factors of disadvantage" suffered by Andrew (comprising his experiences during the war in the former Yugoslavia; the flight of his family to Australia; the breakdown of the family once here; and the circumstances in which this 17-year-old was living at the time of the offences) as "exceptional". His Honour characterised his response to being detained in the same way. 61His Honour went on to assess the prospects of rehabilitation of Andrew as "very good indeed". 62Finally, in discussing the subjective circumstances as a whole, his Honour described them as "wholly exceptional". 63It is to be noted that none of those characterisations with regard to Andrew is impugned by the Crown in this appeal. 64I turn now to discuss the subjective features particular to Damian. 65Damian was aged 6 years when the family arrived in Australia, 8 years when his mother departed the family home, 16 years at the time of the offending, and 18 years when he came before his Honour. 66As his brother had done, Damian pleaded guilty to the offences. Because he did so in the Children's Court, his Honour allowed a utilitarian discount of 25%. Again, that approach is not impugned. 67At the time of the offence, Damian was spending some time at the home of his mother (who had by that time returned to Sydney) and the home of his father. He found school difficult. In adolescence he had fallen in with a group of anti-social peers whom he regarded as "like family". His position was that he had taken cocaine for the first time immediately before the commission of the offences. 68By the time he came before his Honour, Damian had a significant criminal record. 69Throughout the first several months of 2011, Damian had committed a large number of break enter and steals in company. On 1 July 2011 in the Children's Court, he received probation for 12 months and a bond for 18 months for those offences. He was accordingly on a bond at the time of the commission of the offences the subject of the appeal. 70On 17 December 2011, Damian committed the offence of stealing. On 6 July 2012, he was placed on probation for nine months. The commission of the offences under appeal constituted a breach of that probation. 71On 21 May 2012, Damian committed the offence of stealing again. He was subsequently sentenced to a short control order. 72On 5 June 2012, Damian committed the offence of stealing yet again. He was placed on probation on 6 July 2012. Again, the offences under appeal constitute a breach of that conditional liberty. 73On 6 October 2012, Damian committed an aggravated assault with intent to take a motor vehicle armed with a weapon. It can be seen that that serious offence was committed about three weeks after the offences under appeal. On 12 July 2013, he was sentenced for that offence to a control order of 16 months to commence on 12 February 2013, with a non-parole period of six months. 74On 2 January 2013, Damian stole from a person. On 12 July 2013, he received for that offence a concurrent control order for 12 months with a non-parole period of three months. 75In short, counsel for Damian is correct in her submission that, before the offences under consideration, her client had never committed an offence of violence. On the other hand, it must be said that, both before and after the offences, he had committed a number of serious offences (albeit all dealt with in the Children's Court). He was also subject to at least two forms of conditional liberty imposed by the Children's Court at the time of the offences in question. 76Again, his Honour accepted that the Damian was remorseful. 77In custody, Damian had also progressed very well. He had received a number of certificates, including from TAFE, and with regard to other education. There was no suggestion of disciplinary or other problems whilst he had been in detention. A Juvenile Justice report spoke highly of his progress, including with regard to regular counselling sessions with a psychologist in a Juvenile Justice Centre. 78The characterisation of the subjective features that concluded his Honour's remarks on sentence and that I have recounted with regard to Andrew at [38] to [40] extended to Damian as well. It will be seen that one of those findings is impugned by the Crown. Grounds of appeal 79The Crown notified the following grounds of appeal with regard to each respondent: (1)The sentences imposed by his Honour are manifestly inadequate. (2)The non-parole periods fixed by his Honour are manifestly inadequate. 80Each of those grounds was maintained at the hearing. 81With regard to Damian, the Crown notified a further ground: (3)His Honour was in error in finding that the respondent's prospects of rehabilitation were very good. 82Again, that ground was maintained at the hearing. Submissions 83The oral and written submissions made on behalf of the Crown were concise. With regard to the major ground of appeal, they asserted that it is clear that the sentences actually imposed do not sufficiently reflect the objective criminality of each respondent. In particular, they do not reflect the fact that not only were a young couple terrorised in their own home, but also one of those persons suffered very severe and permanent injury. 84As for the third ground, with regard to Damian, it was simply submitted that the finding was overly generous to the point of being not reasonably open: see R v O'Donoghue (1988) 34 A Crim R 397. 85Senior counsel for Andrew emphasised the well-known limitations upon interference by this Court by way of a Crown appeal. He emphasised that there was no contention on the part of the Crown of misstatement of principle, or inadvertence to principle, on the part of his Honour. The contention is simply one of manifest inadequacy. He emphasised the powerful combination of all of the disadvantage that his client had suffered before coming into custody, and all of his achievements since that time. If necessary, he relied upon the discretion not to intervene, and referred to Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462. 86Orally and in writing, counsel for Damian emphasised the care with which his Honour had detailed and considered all of the evidence of the objective and subjective features. She submitted that the "predictive exercise" of determining the prospects of rehabilitation of an offender is by necessity an evaluative one about which minds may legitimately differ. She submitted that there was no error in the evaluation of his Honour, and that it was well open to his Honour to make it. 87As for the primary ground, she sought to show by way of an analysis of sentencing statistics that the sentence is not as remarkable as it may first appear, especially when one considers the age of her client. Orally, she submitted that an important aspect of the matter is that the sentence imposed upon her client was cumulative upon a pre-existing control order. She emphasised that an analysis of the criminal record of Damian shows that, before 18 September 2012, he had neither committed an offence of violence nor been sentenced to detention. Determination 88A number of aspects of each appeal may be noted. 89First, the Crown contention at first instance and on appeal was not that either of the respondents was a person who had personally taken part in the actual infliction of grievous bodily harm. To the contrary, the Crown position was that that was inflicted by one of the other offenders. As I have recounted, the Crown case was that Andrew was the lookout, and that Damian was inside the premises and terrorising Ms Guo with a knife. There was never any allegation that either of them had personally inflicted grievous bodily harm upon Mr Chen. 90Secondly, although the infliction of grievous bodily harm was an element of the substantive offence to which each respondent pleaded guilty, the intentional infliction of that harm was not an element of that offence. In other words, by their pleas, the respondents did not admit that they had intentionally inflicted grievous bodily harm (by way of a straightforward joint criminal enterprise to do so), or foreseen the possibility that one of their co-offenders would intentionally inflict that harm (by way of an extended joint criminal enterprise). The respondents merely admitted that they had taken part in an armed robbery, and that grievous bodily harm had been inflicted during that offence. The same may be said about the offence on the Form 1 in each case. 91Thirdly, although there were two serious matters taken into account in the case of each respondent, those offences were very much bound up in the criminality evidenced by the substantive offence. There was no offence before his Honour that reflected criminality on any occasion other than the early hours of 18 September 2012. 92Fourthly, although pursuant to s 17 of the Act the offence necessarily was dealt with according to law in the District Court, nevertheless the well-known principles at s 6 of the Act with regard to sentencing juvenile offenders continued to apply. 93Fifthly, the circumstances of the respondents' childhood, in a civil war, should not be underestimated. Moreover, the effects were prolonged, because of the respondents' father's mental condition. 94Sixthly, it is no basis of the Crown appeal that his Honour misapprehended the objective seriousness of the offending. That is understandable: throughout the remarks on sentence his Honour described the offenders as presenting to the victims a "terrifying prospect"; referred to the "obvious terror" that the victims felt; described the offending as "particularly sinister"; spoke of the offending as featuring a "high level of violence"; referred to the acts committed against Mr Chen as "appalling"; spoke of the "frightful outcome of the offending"; and described the criminality generally as "ugly and disgraceful" and "frightening a brutal". 95Seventhly, it is to be noted that Judge Craigie SC did not deliver an ex tempore judgment. To the contrary, his Honour, I respectfully consider, delivered a lengthy, thoughtful, and reflective reserved judgment. As well as that, towards the end of the remarks on sentence, his Honour noted that, were it not for his characterisation of the subjective circumstances of each respondent as "wholly exceptional" he would "in any other circumstance regard [the sentencing outcome] as barely adequate to meet the objectively serious offending." It can be seen from that remark that his Honour was well aware that highly unusual sentences were being imposed, but regarded them as justified in the circumstances. 96Eighthly, the Crown contended that, by way of a slip, his Honour had not made the necessary findings to base an order pursuant to s 19 of the Act. However, at the hearing before us, the Crown Prosecutor expressly disavowed reliance upon that slip as founding the appeal. 97In that context, I turn first to ground 3 in the Crown appeal against Damian. The contention is that the finding of fact about the prospects of rehabilitation of Damian being "very good" and being part of the combination of circumstances that were "wholly exceptional" was an error founding an appeal to this Court because that finding was not reasonably open. To the contrary, I respectfully consider that that finding, on the material before his Honour, although generous, was nevertheless a reasonably open finding of fact. Other judges may have characterised the evidence differently; that is not, of course, the test for review of a finding of fact made at first instance in this Court. 98For that reason, I would reject ground 3 of the Crown appeal with regard to Damian. 99As for the substantive ground of manifest inadequacy with regard to each respondent, I consider that the sentences imposed and particularly their non-parole periods are right on the cusp. By that I mean that they should be characterised as being at the absolute outer edge of the spectrum of sentences available to the discretion of his Honour. I also indicate that I would have imposed substantially longer sentences; that is not, of course, the test for intervention. 100I also think that the sentences imposed should be characterised as lenient to a wholly exceptional degree. But the fact is that they were imposed in circumstances that his Honour found to be wholly exceptional. Those circumstances were a combination of: the upbringing of the two respondents; the circumstances in which they had been reduced to living in Australia; and the profoundly impressive steps towards rehabilitation they had taken since being detained. All of that had to be seen against the context of their youth, both at the time of the offending and at the time of sentence, combined with their pleas of guilty, and their actual roles in the joint commission of the offence. 101It can be seen that, in the case of Damian, the starting point of the head sentence, taking into account all relevant factors save the utilitarian value of the plea of guilty, was a head sentence of imprisonment for five years. It is not easy to characterise that as a starting point suggestive of error with regard to a young man who was aged 16 at the time of the commission of the subject offences, and who had grown up in the circumstances that I have outlined. 102In the case of Andrew, the starting point was a little under four years and two months. That was adopted with regard to an offender who was aged 17 at the time of the offences, played the role of lookout, and had little criminal record. Again, that starting point is not inherently suggestive of error. 103After careful reflection, I have come to the view that the sentences imposed were not manifestly inadequate. I think that they fell just within the range open to the discretion of his Honour. Indeed, the fact that I have needed to reflect at length upon whether or not the sentences are manifestly inadequate itself argues against the correctness of that proposition: see Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6], where Gleeson CJ and Hayne J said: Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. 104The respect which this Court must pay to the role of a sentencing judge (see Mulato v R [2006] NSWCCA 282) extends to respecting the discretion of a sentencing judge to impose a wholly exceptional sentence where the circumstances are suitably exceptional. That is what is meant by "individualised justice". 105Because I am not persuaded that the sentence imposed upon either respondent was beyond the legitimate exercise of the discretion of his Honour in the circumstances of this case, whether with regard to its head sentence or non-parole period, I do not consider that the ground of appeal of manifestly inadequacy has been made out in the appeal against either respondent. 106It follows that there is no occasion to consider the residual discretion reposed in this Court not to intervene in a Crown appeal even when error has been established. 107I propose the following orders: (1)The Crown appeal against the sentence imposed upon AH is dismissed. (2)The Crown appeal against sentence imposed upon DH is dismissed. ********** Amendments 08 April 2015 - [103] typographical error 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: 08 April 2015