Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: DL v R (No 2) [2017] NSWCCA 58 Hearing dates: 7, 8, 9, 10 November 2016 Decision date: 13 April 2017 Before: Leeming JA at [1]; Rothman J at [41]; Wilson J at [118] Decision: 1. Extension of time to seek leave to appeal on ground 1 is granted. 2. Leave to appeal on ground 1 granted. 3. Appeal dismissed. Catchwords: SENTENCE APPEAL – application for an extension of time – Muldrock error – error conceded – juvenile offender – juvenile victim – extension of time granted – leave to appeal granted – appeal dismissed (by majority). Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes (Sentencing Procedure) Amendment Act 2007 (NSW) Crimes Act 1900 (NSW) Crimes Amendment (Sexual Offences) Act 2008 (NSW) Criminal Appeal Act 1912 (NSW) Criminal Appeal Rules (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Cases Cited: Abdulrahman v R [2016] NSWCCA 192 Aytugrul v R [2015] NSWCCA 139 Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 BP v R [2010] NSWCCA 159 Carr v Baker (1936) 36 SR (NSW) 301 Davis v R [2015] NSWCCA 90 Denham v R [2016] NSWCCA 309 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Drew v R [2016] NSWCCA 310 Gal v R [2011] NSWCCA 242 Griffiths v the Queen (1989) 167 CLR 372; [1989] HCA 39 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 MB v R [2013] NSWCCA 254 McCallum v Parole Board [2003] NSWCCA 294 McDonald v R [2015] NSWCCA 80 MJ v R, CPD v R [2010] NSWCCA 52 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 O'Connell v R [2006] NSWCCA 82 Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013 R v DB [2010] NSWSC 812 R v Engert (1995) 84 A Crim R 67 R v GDR (1994) 35 NSWLR 376 R v LNT [2005] NSWCCA 307 R v MA [2004] NSWCCA 92 R v Perez [2004] NSWCCA 218 R v Robinson [2002] NSWCCA 359 R v Simpson (2001) 53 NSWLR 704 R v SSA [2007] NSWSC 1202 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 R v Whitfield [2001] NSWSC 876. Regina v AN [2005] NSWCCA 239 Salah v R [2009] NSWCCA 2 Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 Category: Principal judgment Parties: DL (Applicant) Crown (Respondent) Representation: Counsel: G Bashir SC, D Barrow (Applicant) N Adams (Respondent) Solicitors: Matouk Joyner Lawyers (Applicant) Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2006/2875 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2008] NSWSC 1199 Date of Decision: 14 November 2008 Before: RS Hulme J File Number(s): 2006/2875 JUDGMENT 1. LEEMING JA: I have had the advantage of reading, in draft, the judgments of Rothman J and Wilson J on DL's appeal against sentence. I agree with the orders proposed by Wilson J, and, subject to what follows, with her Honour's reasons. What follows presupposes familiarity with both judgments and with this Court's judgment delivered today dismissing DL's appeal against conviction. 2. The Crown conceded what has come to be known as "Muldrock error" on the part of the sentencing judge. That came about in a somewhat complex way. At the time sentence was imposed (14 November 2008), the trial judge was bound by R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 to have regard to the standard non-parole period. At the time of the offence, the standard non-parole period for murder was 20 years' imprisonment. The Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), which commenced on 1 January 2008, increased the standard non-parole period to 25 years' imprisonment for the murder of a person under the age of 18. The presumption that the increase would not apply to a pending prosecution was displaced by cl 57 of Sch 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW). By reason of that clause, what mattered was whether the conviction occurred prior to 1 January 2008. DL was convicted on 27 March 2008. 3. Further, as Rothman J has pointed out, the amendments effected by the Crimes Amendment (Sexual Offences) Act 2008 (NSW), whereby standard non-parole periods ceased to apply to crimes committed by juveniles, post-dated the sentence. 4. Hence the primary judge was correct to sentence on the basis that there was a 25 year standard non-parole period. His Honour did so, in accordance with Way, some three years before the High Court's decision in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. The Crown conceded Muldrock error, and appropriately so. In a case such as this, the error was patently material. It suffices to point to two ways in which that was so. First, when assessing the objective criminality, the primary judge said that although he did not regard the victim's youth as making her vulnerable so as to make out that aggravating factor within s 21A(2)(l) of the Crimes (Sentencing Procedure Act), he added that "even if that view be wrong, care needs to be taken that there is no double counting of that factor, given that the standard non-parole period for most murders is 20 years." Secondly, in determining the non-parole period, the primary judge said at [51]: "However, against the statutory provision of a non-parole period of 25 years, I do not feel able to reduce the non-parole period below 17 years ...". An extension of time is appropriate. Resentencing by this Court 1. Although the maximum sentence for the offence remains life imprisonment, the resentencing in 2017 is a quite different task from that performed by the primary judge in 2008. 1. First, this Court is to disregard the standard non-parole period, in accordance with what was said in MB v R [2013] NSWCCA 254. 2. Secondly, the re-exercise of the sentencing discretion must take into account factual circumstances as they presently exist, not as they were in 2008: see MB v R at [18]. 3. In particular, the Court also has available to it a great deal of evidence not available to the primary judge, including evidence as to the conditions of DL's custody over the past 11 years, which Wilson J has summarised and which I need not repeat. Most relevantly for present purposes, this Court has the benefit of expert psychiatric evidence as to DL's current and former mental states, which bear directly upon the objective seriousness of the crime. 1. The resentencing is not straightforward. Even so, despite the fact that four days were allocated for the hearing of the appeals against conviction and sentence, of which three and a half days were consumed, the parties' written and oral submissions on resentencing were quite limited. For example, DL's written submissions on resentencing occupied four pages in chief, with two pages in reply, as well as a table of comparative cases. DL's oral submissions in chief occupied six pages of transcript at the end of the third day of the appeal (transcript, 9 November 2016, T37.50 – 44.4), and commenced, not inaccurately, "I don't have any detailed submissions to make". Two things should be said about the stance taken by the parties on resentencing. 2. First, counsel for DL initially took the view that "we don't ask the Court to re-find the facts", although at the same time it was said that the Court would put the finding of objective seriousness "entirely to one side", because of the absence of a non-parole period. The majority of the submissions in chief were directed to the evidence going to DL's conditions in custody (T39.18 – 43.22). 3. Secondly, at one stage on the fourth day of the hearing in this Court, the Crown said that it did not take issue with his Honour's assessment of criminality, "except to say that in the circumstances, the applicant was well catered for in terms of those features that were taken into account to his considerable advantage" (transcript, 10 November 2016, T74.15-17). That had followed a series of submissions where it had been put that "his Honour took into account a number of matters that were, in our submission, unduly favourable to the applicant". Those findings included a failure to be satisfied beyond reasonable doubt that DL intended to kill, which the Crown described as "a generous finding" and a failure to be satisfied that there was any degree of premeditation. The Crown had also made the submission (T70.28-30): "His Honour's ultimate conclusion was that the offence was a little below the mid-range of objective seriousness. Again we say, because of circumstances, that was extremely generous to the applicant." 1. This Court on resentencing is not bound by any of the findings by the primary judge, especially given the materially different evidence now before it. Nor is it bound by the statement by the Crown referred to at the beginning of the previous paragraph (which, in light of its inconsistency with the written and oral submissions, may have been a slip). 2. Although at one stage senior counsel for DL sought to acknowledge what she described as a "concession" as to the Crown not taking issue with the assessment of criminality, the correct position was described by her immediately thereafter, as follows: "[findings of objective seriousness] should be put to one side because the sentencing discretion is being exercised afresh by this Court, and it's for this Court to make their own findings completely unfettered by any findings of the original sentencing judge. That sentence [has] miscarried and this Court must simply come to its own conclusion." (Transcript, 10 November 2016, p 74.) 1. It will be seen that DL has had ample opportunity to be heard on all aspects of his appeal against sentence. 2. There is one final way in which sentencing on this appeal differs from that undertaken at first instance. In Abdulrahman v R [2016] NSWCCA 192, Bathurst CJ said at [3]-[4]: "It seems to me that what is required by Kentwell v The Queen [2014] HCA 37; 252 CLR 601 is that once error on the part of the sentencing judge has been established, it is necessary to re-exercise the sentencing discretion to determine whether a lesser sentence is warranted in law. The Court, however, made it clear it was not necessary to resentence the applicant if it determined that no lesser sentence was warranted, although if it determined to resentence in those circumstances, it should inform the applicant so that he or she had an opportunity to withdraw the appeal ... In these circumstances, if on such a re-exercise the Court is of the view that no lesser sentence is warranted but determines not to resentence, then in my view it is sufficient to simply state this rather than indicating the hypothetical sentence which would have been imposed as a result of the re-exercise of the sentencing discretion." 1. The approach stated in Abdulrahman has been followed in, for example, Denham v R [2016] NSWCCA 309 at [78] and Drew v R [2016] NSWCCA 310 at [128]. Some of the reasons for that approach were identified in Gal v R [2011] NSWCCA 242 at [44]: "The specification of the sentence that would have been imposed has the potential to leave a provisional quality attaching to the sentence appealed from even though, following the dismissal of an application for leave to appeal, considerations of finality dictate that it be taken as representing the definitive sentence. In a practical sense such an approach could be unfair to an applicant in that suggesting they deserved more, and specifically how much more, may affect decisions such as whether to release them on parole or their classification within the prison system." Assessment of objective seriousness in 2008 1. After traversing the evidence and the aggravating and mitigating factors in s 21A of the Crimes (Sentencing Procedure) Act, the primary judge concluded as follows at [47]-[49]: "I am required to form a conclusion as to where, in the range of objective seriousness, the Prisoner's offence falls. The ferocity and persistence of the attack argues for a conclusion that his offence was well above the midrange. So would the age of Tania was not that already reflected in the standard non-parole period. On the other hand, my unwillingness to find that the offence was premeditated and my failure to find that the Prisoner's intention was to kill argue for the offence being below the midrange. So, substantially, does my conclusion concerning the psychiatric evidence. What weight does one give to these various factors? Precision is impossible and minds will inevitably differ but in the result my conclusion is that the offence is a little below the mid-range." 1. His Honour's "conclusion concerning the psychiatric evidence" was a preference for the evidence of Dr Nielssen. That expert had formed the view that DL was "in the prodromal phase of schizophrenia", namely, "the phase of the illness between the decline in social function and the emergence of frank psychiatric symptoms, usually only apparent in retrospect when acute symptoms are evident" (at [32]). In short, Dr Nielssen was of the view that "at the time of the offence the Prisoner had had a brief psychotic episode as part of the early course of schizophrenia" (at [32]). 2. The other two psychiatrists who gave evidence in 2008 were of a different view. Dr Allnutt said that the evidence did not permit a conclusion that DL suffered from a psychosis, and Dr Kasinathan (who had seen DL on the day following the offence as well as thereafter) could find no psychiatric explanation for the attack. 3. The primary judge candidly acknowledged that it was difficult to reach a conclusion as to the competing views of those three psychiatrists, each of whom was cross-examined, but concluded at [38]: "While I do not do so with any confidence, if I have to choose between the competing psychiatric opinions that of Dr Nielssen seems to me to best explain or accord with what occurred and it also seems to me more probable than a simple, if extreme, overreaction to some conduct of Tania. In short, I think it probable that the Prisoner was acting under the influence of some psychosis at the time of the murder." 1. As will be seen below, that conclusion was critical to other aspects of his Honour's assessment, including the findings as to premeditation and intention to kill. Assessment of objective seriousness in 2017 1. With the benefit of the different evidence available to this Court more than a decade later, I have formed a very different view of the objective seriousness of the offence. To be clear, none of what follows is intended to convey that the findings made by the primary judge were not open to his Honour. Prodromal phase of schizophrenia? 1. I do not accept that DL was in the prodromal phase of schizophrenia in 2005. Three years after the killing, Dr Nielssen acknowledged that DL's illness had not developed in the way he had expected. He acknowledged that a course of anti-psychotic treatment had had no effect save to make him tired. Dr Kasinathan emphasised that in the three years while he was imprisoned, DL was under regular observation and no psychosis had been observed. 2. More than eleven years have now passed. During that time, DL has been (to quote paragraph 58(m) of the submissions on the appeal against sentence made on his behalf) "under the consistent care of psychologists while in custody". It may be accepted that he has suffered from depression (as to which Wilson J has reproduced the evidence), as well as (in 2014) "a psychotic illness which limits his range or affect and facial expressions" (paragraph 58(l)). But there is no suggestion of schizophrenia. Nor is there any suggestion rising above speculation of incipient schizophrenia which has somehow been arrested. Intention to kill? 1. When DL determined that he would attack the deceased, and what his intentions were at the time, are highly opaque. 2. The primary judge found, consistently with the jury's verdict, that DL intended to cause grievous bodily harm, but was unable to be satisfied beyond reasonable doubt that he intended to kill the deceased. His Honour did so, expressly, because of his view as to his mental state at the time: at [46]. The deceased was stabbed 48 times, including in the head, neck and chest. The stabbing continued until DL was seen by a witness who called out. All this points inexorably to DL having the intention of killing his victim. 3. I have considered whether there is a reasonable possibility that DL was afflicted by a temporary psychosis which precluded his forming an intention to kill. But to this there are two obstacles. The first is that I do not consider that there is any evidence sustaining that possibility. The second is that the findings on sentence must be consistent with the jury's verdict, and I cannot conceive of a temporary psychosis which left DL with an intention to inflict grievous bodily harm while falling short of an intention to kill. Premeditation 1. I have found the question of premeditation difficult. DL did not attend school at any time on 19 July 2005 (the school records confirm this) although his mother said that he left at the usual time wearing his uniform. It was the first day of term for students (the previous day was a staff development day). DL's mother said that he returned home at about 12.15pm, telling his mother he had suffered from stomach pains and had come home early from school. Where DL was in the morning is unknown. DL then left home later in the afternoon saying he was going to Forresters Beach to look at the trail bikes. His mother said that that was about a half hour walk. 2. DL killed the deceased with a knife. It is not remotely plausible to think that he picked up the knife by chance on the way to Forresters Beach. 3. The deceased was killed close to where she lived, on a short cut between the bus stop and her home. It is difficult to think of a reason for DL's presence there save to intercept the deceased on her way home. Further, the walk from the bus stop to the deceased's home via the resort carpark was short: a matter of a few minutes. 4. However, there was no evidence as to whether DL regularly, or occasionally, carried a knife with him. I do not rely upon that circumstance to conclude that the attack was premeditated. I also disregard the unreliable evidence of Mr McDonald, another young person in detention, to whom DL gave varying accounts of the events. 5. What matters to my mind, on whether the crime was premeditated, is precisely when and where the deceased was killed. 6. DL was seen stabbing the deceased in an internal laneway at the rear of the resort, which she used as a shortcut from the front of the resort to her home. One of her school friends gave evidence that she regularly caught the same bus, "almost every afternoon", including on the day she was killed. She gave uncontroversial evidence of the route the deceased had taken: "Q. Do you know the normal way that she walked home? A. Yeah, she went down the left of the bus, sort of walked behind it, because I used to tell her that it was dangerous in front. And then she'd cross the road and go through the entrance to the Forresters Beach Resort, walk through the car park and go up the grassy hill at the back, and then go through a gap in the fence, and walk through and then turn left into her street where her house is. Q. How do you know that that was the way she used to go? A. I walked with her a few times when I go to her house." [In the transcript, "the entrance" in the second sentence of the witness' answer appears as "The Entrance" but that must be an error.] 1. The deceased lived in a house which was on a driveway or private roadway adjoining the street to the south of the resort. Exhibit A was an aerial photograph showing the bus stop, the resort, the laneway at the back of the resort where the deceased was found and the deceased's home. More detail as to the layout of the resort is in a diagram tendered as Exhibit D. The shortcut described by the deceased's friend is readily made out by reference to the photograph and diagram. That route is considerably shorter than the alternative (namely, walking around the western and southern boundaries of the resort). It is difficult from the materials in evidence to be precise about the total distance, but it was plainly only a matter of a few minutes by foot. 2. The first triple-0 call was only three minutes after the time the bus was scheduled to reach the stop. The bus driver said, uncontroversially, that he had dropped off the deceased at 3.53pm, although there is nothing in his evidence to suggest that he had an actual recollection of the time, as opposed to that being the scheduled time. But for present purposes, all that matters is that, even if the bus was running slightly ahead of schedule, the attack was completed within minutes of her alighting from the bus. 3. There is nothing to suggest that the attack took place on The Entrance Road or in the front sections of the resort. How then did DL encounter the deceased? Either he was waiting for her in the lane at the back of the resort, or, perhaps, saw her exit the bus and confronted her in the lane in the very limited time available to do so. DL had no reason to be in the lane, or for that matter in the resort. It was not on any direct route to Forresters Beach, as may be seen from the street plans which were exhibits H and J. DL was coming from the north, and should have turned east down Forresters Beach Road, before reaching the resort, if indeed he had not already left The Entrance Road to proceed to the beach. 4. However, I cannot exclude the possibility that DL was travelling southwards down The Entrance Road, intending to turn east down Forresters Beach Road. The bus stop where the deceased alighted was close to the intersection of those two roads. It is possible that DL happened to arrive at that intersection at the precise moment when the bus stopped and the deceased alighted. That in itself is highly improbable unless DL were intending to do so, although against this it must be said that there would be some sense in his timing his walk so as to arrive at the beach at around the same time as students who had attended school that day. Added to the foregoing is the irrational nature of the attack, which on one view tends to tell against an intent formed well beforehand. Thirdly, the primary judge found himself unable to conclude that the attack was premeditated, and I am conscious that, in this respect, his Honour may have been in an advantageous position compared with this Court. 5. Although I have wavered on this issue, I respectfully conclude that sentence should not be imposed on the basis that the attack was premeditated. I have addressed the issue in some detail because the case that the attack was premeditated is not without substance, and in deference to the views to the contrary. 6. Even so, I have reached a different conclusion of objective seriousness than that found by the primary judge. His Honour's assessment materially turned upon his conclusions as to mental illness, intention to kill, and his concern to avoid double counting (by reason of the standard non-parole period) having regard to the age of the victim. I am not persuaded that DL was suffering from a psychiatric illness. I do have regard to DL's intention to kill and to the youth of the victim in assessing the seriousness of the offence. I bear in mind DL's absence of criminal convictions and good character. I am not able to conclude, favourably to DL, that he is unlikely to re-offend, or that he has good prospects of rehabilitation, or that he was not fully aware of the consequences of his action. The consequence of his appeal against conviction is that he has shown no remorse. I find it impossible to view this crime as other than a very serious killing of a young, defenceless, 15 year old girl as she walked home from school after alighting from the bus. 7. I have considered the cases drawn to the Court's attention by the parties, but have not found them to be of particular assistance, bearing in mind what has been said above, including as to DL's intention to kill and mental state at the time; it is those matters and the absence of remorse which differentiate this offence from many others. The sentence imposed by the primary judge was less than that imposed in R v DB [2010] NSWSC 812 for murder, once allowance is made for the discount attributable to DB's plea. But each case is unique, and while the criminality of DB was considerably worse, there were also subjective features strongly telling in DB's favour which are absent from DL. 8. I generally agree with Wilson J's assessment of DL's subjective features, and so do not consider it necessary to reproduce them here. In my view, favourable to DL are his youth, his relative immaturity (established by practitioners who have examined him subsequently) and the seemingly irrational nature of the killing. I recognise that DL's youth and immaturity in 2005 are highly relevant to an assessment of penalty: see MB v R at [24]-[28]. Against these matters, it was a brutal and unprovoked killing of an innocent, unarmed young girl, for which DL has shown no contrition or remorse in the ensuing 11 years. During that time DL has been far from a model prisoner, and I share Wilson J's conclusion that no meaningful prediction may be made as to his prospects of rehabilitation. 9. Each of the purposes in s 3A of the Crimes (Sentencing Procedure) Act, namely, adequate punishment, deterrence to the offender and others, protection of the community, promoting DL's rehabilitation and making him accountable, denouncing his conduct and recognising the harm done to the victim and the community are applicable to this offence. In particular, real rehabilitation is only apt to occur after there has been an acceptance by DL of his offence. DL is entitled to exercise his right to apply for a substantial extension of time to have his applications for leave to appeal heard and determined, and he has done so. That is not to be held against him. But the consequence is that questions of rehabilitation and protection of the community fall to be assessed now, in circumstances where he has denied his wrongdoing for more than 11 years. The Court cannot ignore that consequence. 10. I share Wilson J's conclusion that no lesser sentence is warranted in law. The approach stated by the Chief Justice in Abdulrahman is applicable here. The sentence I would have imposed would not have permitted DL to apply for parole earlier than the date ordered by the primary judge. I agree with the orders proposed by Wilson J. 11. ROTHMAN J: Although, as is clear from the judgment on conviction, the Court is capable of granting an extension of time in relation to one or more grounds of appeal against conviction and refusing an extension of time in relation to the appeal against sentence, given the concession by the Crown that error of law has occurred in the sentencing process due to the learned sentencing judge following the authority of R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131, which has since been overturned, an extension of time ought to be granted. The reasons for that extension of time include the reasons already given for the extension of time in relation to the appeal against conviction. 12. As stated in the foregoing paragraph, the Crown concedes that the learned sentencing judge applied what was then thought to be authority, namely, Way, as he was bound to do. Since the sentencing exercise, the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 has disapproved the statement of principle in Way and has clarified that the standard non-parole is but one guidepost, together with the maximum sentence, that ought to be taken into account in fixing an appropriate sentence. 13. The High Court in Muldrock also made clear that the standard non-parole period that may be set is not to be used as a starting point in the process of sentencing. Nor, if it be different, are factors discounted from the standard non-parole period or accumulated upon it to arrive at the sentence to be imposed. 14. In the course of his remarks on sentence, the learned sentencing judge concluded that the psychiatric evidence "also constitutes special circumstances" justifying "an interference with the normal ratio of non-parole and parole period". The learned sentencing judge then remarked that "against the statutory provision of a non-parole period of 25 years, I do not feel able to reduce the non-parole period below 17 years and see no point in a further term exceeding 5 years". 15. There are two aspects to the foregoing. First, at the time that the offence was committed the standard non-parole period was 20 years' imprisonment. That standard non-parole period was altered by the promulgation of the Crimes (Sentencing Procedure) Amendment Act 2007 (NSW), which commenced operation on 1 January 2008. 16. As a consequence, at the time the sentence was imposed, the standard non-parole period for the murder of a person under the age of 18 years was 25 years' imprisonment for the imposition of a sentence in relation to any conviction occurring after 1 January 2008. The jury returned a guilty verdict on 27 March 2008, namely, after 1 January 2008. There is no error associated with the conclusion of the sentencing judge that the standard non-parole period was 25 years' imprisonment. 17. A further oddity exists. The legislature by the promulgation of s 54D(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act"), which came into effect from 1 January 2009, provided that standard non-parole periods did not apply to offenders who had not reached majority (the age of 18). Thus, the applicant was one of very few offenders who were sentenced during a period when any standard non-parole period applied to persons under 18 years of age. This makes recourse to statistics even more problematic than usual. 18. Secondly, it is clear that the learned sentencing judge, as he was required to do, applied the principles stated by the Court of Criminal Appeal in Way as to the application of standard non-parole periods and the manner in which standard non-parole periods were to operate and were to affect the sentencing process. The concession by the Crown as to error of law is appropriate. 19. As this Court has made clear, there is every reason to suppose that a sentencing judge, prior to the delivery of the reasons for judgment in Muldrock, was having regard to the standard non-parole period in accordance with the approach, then understood to be correct, as identified in Way: see McDonald v R [2015] NSWCCA 80 (per Basten JA); Aytugrul v R [2015] NSWCCA 139 (per Simpson J, Beazley P & Adamson J agreeing); Davis v R [2015] NSWCCA 90 (per Simpson J, Basten JA & Adamson J agreeing). 20. As Simpson J (with the concurrence of Beazley P and Adamson J) said in Aytugrul: "[20] The Crown maintained that 'Muldrock error' had not been established. The written submissions were prepared, and the argument in this case was heard, before the hearing in R v Davis and the judgment therein. In Davis, I expressed my views (which had the concurrence of Basten JA and Adamson J) concerning the approach taken by the Crown to applications for leave to appeal against sentences imposed during the period 2006-2011 in respect of offences that carry a standard non-parole period. At that time, it was understood that the decision in R v Way stated the law to be applied. It is to be expected that judges sentenced in accordance with what was said in Way. However, in 2011, in Muldrock, the High Court declared that Way was wrongly decided. [21] If judges during that period sentenced in accordance with the law as it was then understood and stated in Way, then, axiomatically, by reason of Muldrock, they were in error." 1. In order to interfere in the imposition of a sentence, this Court must determine that there has been identifiable or manifest error in the sentencing from which the appeal has been brought: House v The King (1936) 55 CLR 499; [1936] HCA 40. Once there is disclosed identifiable error and this Court is required to resentence (Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37), there is no utility in a remaining ground of appeal relating to manifest excess. Once error has been identified, there is error of law and the sentence has not been imposed in accordance with law. 2. In circumstances where the sentence is still being served, the consequence of denying leave or an extension involves a proposition that the Court should deny an extension of time or leave to appeal and allow a prisoner to continue a sentence that has not been imposed in accordance with law. There may be circumstances where such an outcome may be justified. These are not the circumstances. Leave to extend time for the appeal against sentence and leave to appeal against sentence should be granted. 3. For the reasons already provided, and conceded by the Crown, identifiable error is disclosed. The identifiable error is that the sentencing judge sentenced under the principles outlined by this Court in Way, which principles were wrong. The sentencing judge has, as a consequence of the overruling of those principles, applied wrong principle and error of the kind described in House v The King is established. 4. As earlier stated, it is the Court's function to exercise its discretion independently in relation to the sentence that must now be imposed. An appeal on the basis of manifest excess (or manifest inadequacy) relies upon the proposition that there is manifest error in that the outcome of the exercise of the sentencing discretion is "unreasonable or plainly unjust" (House v The King at 505), such that the Court may infer that there has been a wrong finding of fact or the application of wrong principle or the misapplication of principle. 5. Once identifiable error is disclosed, manifest error cannot be sustained. Further, once identifiable error is disclosed, the Court is required to exercise its discretion to sentence independently and the result is not "an interference" with the sentence below. The sentence below no longer has persuasive effect, because it has been derived by the misapplication of principle or the application of wrong principle. 6. As a consequence, on the identification of error, it is unnecessary to show that the outcome is "manifestly" excessive (or inadequate): see Kentwell v The Queen. Similarly, whether the sentence imposed is within or outside range is irrelevant to the question of whether error is disclosed. The range is relevant to the re-sentencing exercise. 7. As already stated, it is conceded that there was identifiable error, namely the application of the principles stated by the Court of Criminal Appeal in Way, rather than the application of the later principles stated by the High Court in Muldrock. During the course of his Remarks on Sentence, the learned sentencing judge referred to the age of the applicant, who was 16 at the time of the offence and the longstanding authority that considerations of general deterrence and "some of the other purposes of sentencing" are to be given less weight in the case of such persons. His Honour then said: "Similar considerations apply where some mental disability has played a part in the commission of an offence (although to the extent to which that is taken into account in an assessment of the objective seriousness of an offence, a court must take care to avoid double counting). The Prisoner's age, the fact that this is his first time in prison, his nature and circumstances prior to the offence and my conclusions as to the psychiatric evidence also constitute special circumstances and, subject to the following remarks, justify an interference with the normal ratio of non-parole and parole period. However, against the statutory provision of a non-parole period of 25 years, I do not feel able to reduce the non-parole period below 17 years and see no point in a further term exceeding 5 years." 1. There are two issues associated with the foregoing comment, neither of which has been raised as a ground of appeal. The first is the alleged "similarity" in the considerations that apply to mental disability and those that apply to youth and the necessity to avoid double counting as between the assessment of objective seriousness and subjective circumstances. The second is the manner in which the finding of "special circumstances" was made and not given effect in the calculation of the sentence. 2. In BP v R [2010] NSWCCA 159, Hodgson JA (with whom Rothman J agreed) dealt extensively with the principles associated with the sentencing of a young offender. He said: "[3] The relevance of the youth of an offender to sentencing has been extensively discussed in many cases, including KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 (referred to by Johnson J) and cases referred to in that case. I accept the principles stated in KT at [22] – [26] (quoted by Johnson J at par [74] of his judgment). However, I wish to make three points concerning these principles. [4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] – [36]. [5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a 'child offender' of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid‑twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime. [6] Third, I do not think courts should be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors." 1. The principles stated above by Hodgson JA have been adopted in many cases (both before and after the reasons for judgment in BP): see MJ v R, CPD v R [2010] NSWCCA 52; R v LNT [2005] NSWCCA 307. In Regina v AN [2005] NSWCCA 239, the Court dealt with circumstances involving a very young offender who had significant psychological issues. Howie J, with whom James and Rothman JJ agreed, made the following statement of principle as to the combined effect of youth and psychiatric disorders: "[45] The Crown contends, rightly, that the question of weight to be given to the mental disability of the applicant on the issue of general deterrence was a matter for the discretion of the sentencing judge and, relying upon the passage quoted from Engert at the start of this judgment, noted the complexity of the task confronting his Honour. But the complaint here is that his Honour never properly fulfilled that task not simply because he did not mention a matter of significance in the sentencing of the applicant but rather because he considered the question of general deterrence from only one aspect, being the nature of the offending committed by the applicant. [46] The considerations that apply in determining the significance to be given to general deterrence when sentencing a child are not the same as those which apply when sentencing a person who suffers from a mental abnormality. In the former case the issue is one of weighing the need for general deterrence as against the need to promote the rehabilitation of the child. In the latter case the issue is whether the offender is a suitable subject for general deterrence and, if so, to what degree having regard to the severity of the mental abnormality and its connection with the offence committed. I do not believe that the weight to be given to general deterrence in dealing with a child suffering from a mental disability can be determined simply on the basis of applying only the relevant considerations applicable to a child or only the relevant considerations applicable to a person suffering from a mental disability. Yet this appears to be what his Honour has done by referring only to the passage in Bus quoted above and in the context of considering the relevant principles to be applied when sentencing a child. … [49] Had his Honour referred to the issue of the relevance of the applicant's mental disability to the question of general deterrence and, having relied upon what was said in this passage, held that little moderation of general deterrence should be given, there may have been no error asserted or at least the error asserted in such a case would not be a failure to consider the issue at all. I am not prepared to assume that his Honour silently took into account the relevance of the applicant's mental disability on the issue of general deterrence in the present case where the Judge referred specifically to the issue of general deterrence but only in the context of the approach to be adopted to sentencing the applicant because of his age." 1. The difficulty with eliding the principles associated with youth and mental disability is manifest. The principles applicable in the sentencing of a youth (either a youth who is under or over majority) relates to the effect of immaturity and the not yet fully developed capacity to appreciate consequences or to restrain urges. To some extent, some mental conditions have the same effect. 2. When an individual offender has both the immaturity of youth and the exacerbating circumstances of a mental condition, the effect is compounded and not, as his Honour commented, "similar". Further, as stated by Hodgson JA and recited above, such issues may well affect both objective seriousness and subjective circumstances. To take account of their effect on each is not to double-count. 3. As to the manner in which his Honour applied the finding of "special circumstances", as a matter of application of principle, his Honour has set a non-parole period that his Honour considers appropriate by reference to the standard then fixed and, then, determined that a longer period during which the Prisoner would be eligible for parole is not "necessary". (The Court does not here deal with the error associated with the reference to the standard non-parole period, which is encompassed within the conceded error.) 4. The effect of such a methodology, if it were to result in a "longer period" set as the remainder of term, is to the same effect as a judge lengthening a sentence in order to increase the period during which parole is available. Implicit in the comment of the sentencing judge, when coupled with the "inability" to impose a less severe non-parole period, is that were his Honour to be of the view that a longer period during which parole was available was appropriate, the sentence imposed would have been longer. 5. The purpose of the finding of special circumstances is to provide a longer period during which the Prisoner is eligible for parole by shortening the non-parole period; not to give effect to a longer potential parole period by lengthening the sentence to be imposed. 6. Once it was determined that a head sentence of approximately 22 years' imprisonment was to be imposed (however calculated), then the finding of special circumstances, ordinarily, would reduce the duration of the non-parole period. A sentence, which starts with a non-parole period and then determines that a longer period during which the Prisoner will be eligible for parole is appropriate, has the effect that a finding of special circumstances will increase the sentence that would otherwise be imposed. Such an effect would be inconsistent with principle. 7. Nevertheless, the approach of calculating the non-parole period first is not inconsistent with principle. In a situation where special circumstances exist, the method would require an additional step, being a reconsideration of the non-parole period as a result of the calculation of the head sentence. The foregoing does not suggest that there was error, or that there would necessarily be error, in the exercise of discretion by a sentencing judge not to give effect to a finding of special circumstances. 8. Nor should the foregoing be taken to suggest that the calculation of a non-parole period and the subsequent calculation of the remainder of the term is necessarily contrary to principle: Griffiths v the Queen (1989) 167 CLR 372; [1989] HCA 39; R v GDR (1994) 35 NSWLR 376 at 381; R v MA [2004] NSWCCA 92; but see R v Perez [2004] NSWCCA 218 at [26]. 9. The provisions of s 44 of the Sentencing Act require the Court first "to set a non-parole period". The provision does not require the Court to calculate the non-parole period first. Nor does it permit the calculation of the remainder of sentence on the basis of a non-parole period that has been set, without regard to the length of the head sentence or without the need to give effect to a finding of special circumstances: R v Perez, supra. 10. As earlier stated, neither of the latter mentioned issues was raised as a ground of appeal. Each is mentioned because it is necessary, in the exercise of the Court's discretion, to impose an appropriate sentence (or independently come to a view that no lesser sentence is warranted), to ensure that the principles of sentencing are applied appropriately. 11. From the facts summarised for the purpose of the conviction appeal, it is clear that this is an extremely violent crime. There was some suggestion that the applicant lay-in-wait for Tania, knowing the bus stop that she regularly used, assaulted her and stabbed her 48 times. The sentencing judge was unable to conclude, to the requisite standard of beyond reasonable doubt, that the applicant's attack on Tania had any degree of premeditation about it (ROS, [23]). 12. It seems that, in part, the premeditation to which the sentencing judge referred is a premeditation to the killing of Tania, the victim. However, it is impossible to describe the offence as an offence of opportunity. 13. The sentencing judge concluded that the possession of the knife and the knowledge, possessed by the applicant, that Tania alighted the bus from school at that stop, could not, of itself, prove motive or premeditation. The sentencing judge's findings of fact are not the subject of challenge. 14. To find that, contrary to the view of the sentencing judge, there was pre-meditation or motive; or that there was an intention to kill necessarily involves the proposition that the sentencing judge's conclusions of fact were not open to him. These matters must be proved beyond reasonable doubt to be held against the applicant. 15. A finding to the contrary of the sentencing judge, in the absence of a challenge to the factual conclusions, involves the proposition that the sentencing judge's conclusion is not a reasonable hypothesis open on the evidence: The Queen v Baden-Clay [2016] HCA 35 at [46], [47] and the reference to Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42. Despite some recent views to the contrary, the High Court in Baden-Clay does not elide the drawing of a reasonable inference on the one hand, and a reasonable hypothesis inconsistent with guilt, on the other. In Baden-Clay, the existence of motive, the conduct of the offender and the absence of any injury to the head in particular, and generally any injury consistent with non-intentional injury, was sufficient to enable a jury to exclude manslaughter as a reasonable hypothesis. 16. Further, the sentencing judge did not accept the evidence of the applicant's companion in his Juvenile Detention Centre. His Honour observed that evidence; we have not. 17. Over and above the objective circumstance, there are significant subjective circumstances, some of which affect the circumstances of the offence itself. The offence was one committed "irrationally" and the extent of the irrationality was a factor that the sentencing judge considered against the findings of motive. His Honour concluded that the "nature and circumstances of the attack suggest that, at least at that time, reasoning was almost non-existent". 18. Evidence was adduced from three psychiatrists, each of whom is experienced and expert in the field. They differ. Essentially, the consensus seems to be that the applicant suffers, at least, depressive and anxiety symptoms with traits of obsessive compulsive disorder. 19. Dr Nielssen concluded, largely on the basis of the history given, not only by the applicant but also by his parents, that the applicant suffered from probable schizophrenic illness and that the offence occurred during a period when the applicant was in the prodromal phase of schizophrenia. The prodromal phase of a psychotic illness is that period between the decline in social function and the emergence of frank psychotic symptoms, usually only apparent in retrospect when the acute symptoms are evident. 20. Recent studies have shown that persons suffering prodromal schizophrenia have a greatly increased propensity for lethal assault, an opinion supported by the tender of publications detailing the studies to that effect, annexed to the report of Dr Nielssen of 16 June 2008. The sentencing judge preferred the opinion of Dr Nielssen. 21. As earlier stated, the existence of prodromal schizophrenia is usually only apparent in retrospect. That proposition is based on the difficulty of determining early symptoms prior to the onset of a psychosis. If the first possible time at which symptoms may be noticed is when a patient notices some change and the second time is when close associates (family or friends) notice the change, then the prodromal stage is, necessarily, between that time and the onset of symptoms and is usually well before intervention. 22. There is no evidence in these proceedings that the early treatment of prodromal changes may prevent the onset of symptoms. However, there is no evidence to the contrary. The applicant was treated after the attack: Nielssen Report of 23 October 2007 (Prozac and Risperidone). Further, Dr Allnutt accepted there could be one only psychotic attack and that he may have had such an attack. Dr Allnutt, who concluded that in 2008 the applicant was not suffering schizophrenia, said: "On 20 June 2007 the issue of Asperger's syndrome was again raised. On 17 July 2007 there was no current evidence of psychosis. Consideration was given to prescribing him an antipsychotic medication, however, on 17 July 2007 he was reluctant to take any antipsychotic medication. On 25 July he decided to take antipsychotic medication and he was prescribed Risperidone 1mg at night. By 15 August 2007 he continued with 20mg of Fluoxetine [Prozac] and 1mg of Risperidone. On 5 September 2007 the trial of Risperidone for 2mg for four weeks was decided and on 30 October 2007 it was decided to cease the Risperidone but continue with the Fluoxetine. On 9 January 2008 it was noted that his generalised anxiety disorder was stable. After being found guilty, he was more anxious on 9 April 2008. There was still no evidence of psychosis or intrusive thoughts. There was a report from Juvenile Justice dated 5 June 2008, that there was a positive family history of schizophrenia; that he had a close relationship with his parents and a normal relationship with his sibling; a stable home life; a closer relationship with his mother than his father; there was a family history of anxiety;…. … I note that Dr Nielsen in 8 May 2008 diagnosed probable schizophrenic illness; he considered the accused's poor memory of the alleged offence and concluded that, on balance, he was unwilling to discuss a very distressing event. … He thought that his mother's account of his functioning around the time of the alleged offence was associated with a prodromal phase of mental illness; that the observation so of psychiatrists at the time of his incarceration was strongly suggestive of an early phase of a psychotic illness which he believed was period of particular risk of lethal assault, due to delusional beliefs, heightened arousal and illogical thinking. He supports seems to support the view that committing a homicide offence the absence of any rational motive or a pattern of antisocial conduct, a psychiatric disturbance was strongly suggestive of a psychiatric disturbance (in this case, psychosis) and provides his research to support this. He considered it possibly that treatment with antidepressant medication had a protective effect. He noted that the risk of serious violence in people with serious mental illness was low after and adequate period of treatment and did not believe he had any other risk factors such as conduct disorder or substance abuse. … Based on this information, overall I believe there is sufficient clinical evidence to conclude that he experienced some of mental condition. … However, based on a family history of obsessive-compulsive disorder as well as schizophrenia, the information provided by [his] parents about a change in functioning in 2004/2005 and his concomitant report to them of intrusive "bad thoughts", and the observation of the psychiatrists soon after his incarceration; consideration could be given to a diagnosis of a psychotic disorder and/or and anxiety disorder (with obsessive compulsive symptoms) could be considered. … Prodromal symptoms of schizophrenia are early signs that a person was developing the illness and at the time of experiencing only prodromal symptoms the person would not be expected to be suffering significant symptoms such as delusions, hallucinations or severe disturbances in thinking (because in such a case they would have the disorder). In my opinion, to significantly drive an offence of homicide such as this, symptoms would have to have been relatively severe; so that one would have expected to see more evidence and probably greater persistence of psychotic symptoms after the offence, which has not been the case. It is possible that he could have experienced a brief psychosis either primarily or secondarily (for example due to a medical condition or substance induced) that resolved rapidly after the offence. I was unable to identify evidence of a medical condition or substance use around the time of the offence. The possibility of a primary brief psychosis at the time of the alleged offence remains, but if this were the case there was a relatively rapid recovery, which I think would have been unlikely. … Overall, I do not think that, at this stage, there is sufficient clinical evidence to conclude that he suffered from a psychosis to reach greater threshold than a possibility amongst others. I am however aware of the possibility that there might be other symptoms that he has chosen not to report. It remains a possibility that a psychotic condition could still emerge in the future; he has a biological vulnerability due to his family history." 1. The fact, if it be the fact, that full psychotic symptoms have not been displayed, or not yet displayed, by the applicant does not require or indicate that the attack was not a manifestation of prodromal schizophrenia. 2. When the applicant was examined by Juvenile Justice, he was 19 years of age. Juvenile Justice, through Justice Health, had the applicant assessed by two psychiatrists, each of whom is eminent. He was described, at that age, as an "immature" 19 year old. The inference must be that at 16 years of age, when the offence occurred, he was even less mature. 3. His underlying mental condition was such that, at an early stage of the trial process, there were serious concerns as to whether he was fit to plead, particularly in light of his difficulties, or stated difficulties in remembering any part of the events of that evening, other than in some psychotic haze. It was feared that it would be difficult, if not impossible, for the applicant to provide instructions. 4. From the foregoing, and consistent with the factual conclusions of the sentencing judge, it can be concluded that the offence was a violent one, seemingly without motive and wholly irrational. The attack was frenzied and the mental condition of the applicant was, at least in part, causative of the offending. 5. Further, the applicant was otherwise extremely immature, even compared to other 16 year olds. The applicant had only just turned 16 at the time of the offence. 6. There has been no display of remorse, in part because the applicant continued to assert his innocence. The exercise in sentencing is a difficult one. 7. On the one hand punishment is essential. On the other hand, the compounded effect of the immaturity (both chronological and mental) of the applicant and his mental condition have the effect that the applicant is, even less than most other immature juveniles, not an appropriate vehicle for general deterrence, and general deterrence will play a less significant role in his sentence than it would for other juveniles or other persons with a mental disability who do not suffer from both issues. 8. Further, as outlined by Hodgson JA in BP v R, above, the existence of the mental condition and, quite separately, the immaturity of the offender, are material factors in dealing with the culpability of the applicant for what otherwise would be an offence that was well above the mid-range of seriousness. 9. In this case, the applicant's mental health has contributed to the commission of the offence in a material way and, as a consequence, his moral culpability is reduced. In those circumstances, the necessity for denunciation as an element in the sentence to be imposed is reduced. 10. While the taxonomy in DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194 at [177] is not exhaustive and was not intended to be exhaustive or prescriptive, each of those factors that are used to ameliorate the sentence to be imposed are factors which, in this case, ought to be taken into account in setting a sentence for the offender. They include a lower moral culpability; a lower need for denunciation; the inappropriateness of the applicant as a vehicle for general deterrence, resulting in a reduction in the sentence; the more severe weight that a custodial sentence has on the applicant; and the reduced significance of specific deterrence. The Court relies, with respect, on the authorities summarised by McClellan CJ at CL (as his Honour then was). 11. In a violent crime such as this one, the culpability associated, on the one hand, with an intention to kill and, on the other hand, associated with an intention to cause grievous bodily harm may be little different. Ordinarily, all other things being equal, an intention to kill renders the objective seriousness of an offence at a higher level than if committed with an intention to inflict grievous bodily harm. But that is not universal; and some crimes are such that the difference, if any, is very limited. 12. To draw the inference from the number of stab wounds and the frenzied nature of the attack that there was an intention to kill is to ignore the actual or possible psychoses diagnosed by each psychiatrist. An inference may be drawn where "human experience would be contradicted" if it did not: Carr v Baker (1936) 36 SR (NSW) 301 at pp 306–307; Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (at 312, 320-321 of the CLR). 13. Ordinarily, such an inference would arise; but in the presence of psychoses (whether or not the psychoses include prodromal schizophrenia) such an inference may or may not arise. I would not interfere with the factual conclusion of the trial judge. Further, to draw the inference of intention to kill against the applicant requires no other reasonable hypothesis on the evidence. Given the reasonable possibility of psychoses, the inference of intention to kill cannot be drawn beyond reasonable doubt. On the other hand, to utilise the existence of psychoses to the advantage of the applicant would depend upon the applicant satisfying the Court on the lesser standard of balance of probabilities. The proof of the requisite intention is a matter for the Crown on the higher standard. 14. In this case, where significant subjective ameliorating factors apply, attention needs to be paid to the different task undertaken by a court in fixing a non-parole period and the task undertaken by a parole authority in the grant of parole. The Court must assume that any relevant statutory parole authority will undertake its task in accordance with its legislative remit. 15. The non-parole period is set on the basis of general sentencing principles, utilising as guideposts the maximum sentence and, perhaps more significantly, any standard non-parole period. In the absence of a finding of special circumstances, the ratio between non-parole period and the remainder of the head sentence must be no less than 3:1 (s 44 of the Sentencing Act). There is no prohibition on the ratio being more than 3:1, as it is in the sentence imposed. 16. The non-parole period is required, under general sentencing principles, to reflect all of the purposes of sentencing prescribed in s 3A of the Sentencing Act. In turn, s 3A of the Sentencing Act reflects the general principles of sentencing under the common law. Those principles include punishment, general and specific deterrence, protection of the community, rehabilitation, accountability, denunciation and retribution: Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (at 476 of the CLR). 17. The circumstances of youth and mental condition of the applicant lessen the significance of denunciation, general deterrence and punishment. Sometimes, with mental conditions, for example frontal lobe injuries or lower executive functioning, specific deterrence may be more significant: R v Engert (1995) 84 A Crim R 67 at 71 and, otherwise, generally see Muldrock, especially at [53]. 18. The present case is not one in which specific deterrence must be given more weight than otherwise is appropriate. Thus, the Court must examine the necessity for protection of the community. 19. As earlier stated, the Court, in that respect, should pay some regard to the difference in the sentencing process and the functions of granting parole. Leaving aside for present purposes the imposition of sentences of 3 years' imprisonment or less (see s 50 of the Sentencing Act) but more than 6 months' imprisonment (s 46 of the Sentencing Act), the non-parole period should be the minimum period that the offender must remain in gaol. 20. The purpose of setting a non-parole period is not to convert a punishment into an opportunity for rehabilitation: Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 (at 627-629 of the CLR); R v Simpson (2001) 53 NSWLR 704; R v MA [2004] NSWCCA 92. Nevertheless, the Court can take account, when dealing with the factor relating to protection of society, that the Parole Authority must exercise its functions in a manner that gives primacy to the safety of the community and at a time when the effect of any treatment or rehabilitation has taken effect: see s 135 of the Crimes (Administration of Sentences) Act 1999 (NSW); Clause 1 of the Operating Guidelines of the State Parole Authority; McCallum v Parole Board [2003] NSWCCA 294 at [26] et seq. 21. The ultimate question, upon which judges may differ, depends on synthesising all of the above elements to arrive at a sentence to impose. The severity and violence of the crime, even when coupled with the subjective elements, requires a lengthy sentence. Yet, if the psychoses are to continue to be treated or not to become evident, the applicant will require a lengthy period of supervision in the community. 22. It is at this point that it is necessary to examine the range of sentences imposed on juveniles for murder. The applicant is not almost 18 years of age. 23. Care must be taken in comparing statistics, or basing a sentence on statistical analysis. First, the statistics become the guidepost, instead of the maximum sentence (life imprisonment) and standard non-parole period (in this case, 25 years' imprisonment). However, life imprisonment is reserved for a worst case: s 19A of the Crimes Act 1900 (NSW) and s 61(1) of the Sentencing Act. Moreover, the finding of special circumstances overtakes the prescription of a standard non-parole period and did so, even on the principles wrongly established in Way. 24. The Judicial Commission statistics refer to only four cases of murder by a juvenile, in circumstances, as here, where there were no Form 1 matters, and only six, including Form 1 matters. The head sentence, in the latter group, was two of 15 years' imprisonment; one of 17 years' imprisonment; one of 19 years' imprisonment; and two of 20 years' imprisonment. Similarly, the non-parole periods were: one of 10 years' imprisonment; one of 11 years' imprisonment; three of 12 years' imprisonment; and one of 14 years' imprisonment. On that comparison, both the head sentence and the non-parole period are above any other recorded. 25. However, as earlier stated, statistics can be misleading: see Salah v R [2009] NSWCCA 2 at [40]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 ("Hili & Jones") at [54]. In Salah, the Court (Rothman J, with Bell JA [as her Honour then was] and Price J agreeing) said: "[40] The Crown and Mr Salah rely on Judicial Commission statistics and summaries of other judgments. Statistics are, in this area, to be used even more carefully than usually: Blacklidge, supra. Generally, the slavish adherence to statistics would render sentencing a mechanical and self-fulfilling exercise. In this area, because of the range of circumstances necessarily encompassed by the offence of manslaughter, regard must be had to the differential aspects of each offence." 1. In Hili & Jones, the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said: "[54] In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'. [55] As the plurality said in Wong: '[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.'" [Footnotes omitted.] 1. It is necessary to determine a range appropriate for this offence. An examination of actual cases (rather than statistics) demonstrates that, in cases of juveniles committing murder by stabbing, the highest non-parole period imposed (during a period prior to the standard non-parole period) was 13 years' imprisonment. It was imposed on a 17 year old, where the offence was committed in company and where the offender had prior convictions for violent offences: R v Whitfield [2001] NSWSC 876. 2. In R v SSA [2007] NSWSC 1202, the offender, who was 17, was sentenced to a non-parole period of 12 years (with a head sentence of 20 years) in circumstances of an attack in company and after trial. At the time the standard non-parole period was 20 years' imprisonment. 3. In MB v R [2013] NSWCCA 254, the Court imposed a sentence of 17 years and 6 months, including non-parole period of 12 years and 6 months. 4. The Crown, in its submissions, refers the Court to O'Connell v R [2006] NSWCCA 82 and R v Robinson [2002] NSWCCA 359. Each was an extraordinarily sadistic case. In O'Connell, the offender was not a minor and inflicted horrific injuries, including (apart from the 49 stab wounds) the impaling of the victim with a broken golf club and seemingly sexual injuries to the labia majorum and anus. In Robinson, the conduct was described by the sentencing judge (Adams J) as a worst case, ameliorated only by the offender's immaturity as a 17 year old. 5. I have found most helpful, but do not repeat, the Schedule of Cases provided by Ms Bashir SC, counsel for the applicant. I have examined each of these cases. The comparison with the circumstances in R v DB [2010] NSWSC 812 is informative, even though imposed after a plea. The age of the offender was comparable to the applicant; there were two victims and the offence was "related" to a prior relationship to the victims' daughter. No two cases are identical. 6. If it were the Court's view that the range for an offence of this kind is too low, the Court should make that clear and invite submissions, before imposing a sentence higher than the range that would otherwise persist: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 per Bell J (in dissent) at [92], [95], [97] and [98]. 7. A head sentence of 18 years' imprisonment is appropriate and should be imposed. In my view, anything above is outside the range for this offence by an offender with these subjective circumstances. 8. The sentencing judge's finding of special circumstances is confirmed and a lesser ratio fixed as between non-parole period and the remainder of term should allow the applicant to be eligible for parole after 12 years. I reiterate that such a sentence is within the range available. Very much more than 12 years non-parole period would not be. His actual release on parole will be assessed by the Parole Authority, based on his behaviour and the assessment of his needs and, primarily, the safety of the community. 9. I propose that the Court should make the following additional orders: 1. Leave to extend time to appeal sentence be granted to include the time at which the application for leave was filed; 2. Leave to appeal against sentence be granted; 3. Appeal against the sentence imposed by the Supreme Court on 14 November 2008 be granted; 4. Sentence imposed on 14 November 2008 on the applicant by the Supreme Court for murder be quashed and, in lieu thereof, the following sentence be imposed: 1. The applicant is sentenced to a non-parole period of 12 years' imprisonment commencing 19 July 2005 and concluding 18 July 2017 with a remainder of term of 6 years concluding 18 July 2023. 2. The applicant be first eligible for parole on 19 July 2017. 1. WILSON J: Because of the substantial delay between the imposition of sentence and the filing of the application for leave to appeal, the applicant necessarily seeks an extension of time: r 3B(2) of the Criminal Appeal Rules. He also requires the Court's leave to pursue his appeal: s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). 2. Ordinarily, the length of the delay would be one feature militating against an extension of time. However, as the Crown concedes error in the sentence imposed upon the applicant, it is appropriate to grant the extension of time sought. The Supreme Court Proceedings 1. Having been found guilty on 27 March 2008 of murder contrary to s 18 of the Crimes Act 1900 (NSW) the applicant was sentenced on 14 November 2008 by RS Hulme J. The sentence imposed was one of imprisonment for 22 years, to date from 19 July 2005, comprising a non-parole period of 17 years, expiring on 18 July 2022, with a balance of term of 5 years, expiring on 18 July 2027. 2. The murder was committed on 19 July 2005. It was a savage crime, involving as it did an attack upon Tania, after she had alighted from a school bus and as she set out to walk home from the bus stop, in which the applicant stabbed her something like 48 times with a knife, stopping only when a passerby intervened. The applicant, who was then aged 16 and about 2 months, was arrested later that evening. He has been in custody since that date. 3. The motive for the murder remains a mystery. As the sentencing judge said, "There is scant evidence that might explain the killing. The prisoner declined to be interviewed by police, gave no evidence at his trial or during sentence proceedings, and to the author of the pre-sentence report and psychiatrists who have interviewed him either denied any involvement in Tania's death or claimed to have no memory of it." R v DL [2008] NSWSC 1199 at [7]. 1. His Honour concluded that, "on any view, there was much irrationality about what occurred". Although there were some features of the offence - the use of a knife, the fact that the applicant had truanted from school that day, that he had twice gotten off the bus used by Tania at her stop in the months preceding the murder, and the fact that he was in the area where she alighted from the bus at the time she alighted - the sentencing judge concluded that the very irrationality of the crime mitigated against a finding of premeditation. He found that "the nature and circumstances of the attack suggest that, at least at the time, reasoning was almost non-existent" (at [24]). 2. After considering evidence from three psychiatrists who had examined the applicant, Drs Allnutt, Nielssen, and Kasinathan, the sentencing judge concluded that the applicant was probably acting under the influence of some psychosis at the time of the murder (at [38]). 3. Because of what he concluded to have been the applicant's mental state at the time of the offence, his Honour was not satisfied beyond reasonable doubt that the applicant's intention was to kill. 4. Taking those features into account the sentencing judge concluded that the offence fell below the mid-range in terms of its objective seriousness. The most persuasive features in reaching that conclusion were the absence of a finding that the applicant acted with an intention to kill, or that the crime was premeditated, and the finding that the applicant was psychotic at the time, thus bearing considerably reduced moral culpability for the crime. 5. His Honour also had regard to the applicant's young age, and the sentencing principles applicable to young offenders, his good character, the unlikelihood that the applicant would reoffend (without concluding that he had good prospects of rehabilitation), and his mental state. A finding of special circumstances was made on the basis of the applicant's youth and mental state, and that he had never before been in prison, and the statutory ratio of sentence was varied in the applicant's favour as a consequence: s 44(2) Crimes (Sentencing Procedure) Act 1999 (NSW). 6. The sentencing judge assessed and imposed sentence in accordance with the principles laid down in R v Way [2004] NSWCCA 131; 60 NSWLR 168, and gave the standard non-parole period of 25 years, which then applied even to a juvenile offender for the murder of a child, considerable significance. Although thought to be the correct approach at the time, it was subsequently determined that R v Way had been wrongly decided: Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120, at [25]. The Application for Leave to Appeal 1. The applicant seeks to advance two grounds of appeal: Ground 1: The primary judge erred in his application of the standard non-parole period legislation in light of the decision in Muldrock v The Queen; and Ground Two: The sentence is manifestly excessive. Ground 1: "Muldrock" Error 1. As noted above, the sentencing judge determined sentence in accordance with R v Way. He said, at [39], "Pursuant to s 54A et seq. of the Crimes (Sentencing Procedure) Act there is a standard non-parole period of 25 years where the victim was under 18 at the time, those statutory provisions requiring a court to impose that penalty for an offence in the middle of the range of objective seriousness unless the court determines there are reasons, falling within the terms of s 21A of the Act, for setting a longer or shorter non-parole period." 1. Since October 2011 when Muldrock v The Queen was handed down by the High Court that approach has been known to be wrong. 2. As the Crown properly concedes, the sentence imposed upon the applicant in 2008 is affected by "Muldrock error". It is therefore appropriate to grant leave to advance this ground and uphold it. That being so, ground 2 falls away and need not be further considered. 3. Specific error having been found in relation to ground 1, "The appellate court's power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed": Kentwell v The Queen [2014] HCA 37; 252 CLR 601, at [35]. 1. In separately and independently exercising the sentencing discretion, it is appropriate to have regard to the circumstances of the offending conduct, together with the applicant's subjective circumstances, including evidence of events that have occurred since the sentencing hearing. 2. The maximum sentence for the applicant's crime is one of life imprisonment: s 19A of the Crimes Act 1900 (NSW). The standard non-parole period has no application in determining the sentence to be imposed upon him, because of the operation of s 54D of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides, "This Division [Division 1A of Part 4] does not apply to the sentencing of an offender in respect of an offence if the offender was under the age of 18 years at the time the offence was committed." 1. It remains an important part of the sentencing function of a court to make an assessment of the gravity of the applicant's crime. 2. The crime was both ferocious and persistent, involving as it did the infliction of 48 separate wounds upon the deceased. On any assessment, a crime of such brutality is very grave. 3. Other features are relevant. 4. The question of the applicant's mental state at the time of the offence is a significant one, bearing as it does on a number of other important features, including the issue of premeditation, the applicant's intention at the time of the commission of the offence, and the level of moral culpability he bears for it. 5. The sentencing judge concluded that the applicant was affected by some psychosis at the relevant time and, as a consequence of that conclusion, he declined to find that the crime was premeditated, or that the applicant intended to kill. He determined the applicant's moral culpability to be substantially reduced. 6. Having reviewed all of the evidence, including evidence of matters that have occurred since the 2008 proceedings, I do not conclude that the applicant was affected by psychosis at the time of the crime. 7. Whilst the motivation for it is unknown, that does not of itself suggest irrationality indicative of mental illness. Further, the psychiatric opinion ultimately accepted (albeit "without any confidence") by the sentencing judge as foundation for his conclusion that the applicant was psychotic, has not been borne out by time. 8. The evidence from Dr Nielssen was that the applicant was in the prodromal phase of schizophrenia when he murdered Tania, that being the period between the appearance of initial symptoms and the full development of the condition. Dr Nielssen referred to the prodromal phase as the phase of the illness between the decline in social function and the emergence of frank symptoms. The applicant's mother had given an account of the applicant's declining performance at school and socially in the period preceding the crime. Dr Nielssen relied upon this together with the applicant's abnormal emotional expression in interview; his "subtley" impaired logic, and a family history of mental illness, to opine that the applicant was developing schizophrenia at the material time, and had a brief psychotic episode consequential to the developing disease. 9. In giving that opinion Dr Nielssen acknowledged that the illness had not in fact developed as he would have expected in the intervening period (being over three years between offence and sentence), and that a trial of medication designed to treat schizophrenia had had no affect on the applicant. 10. Other psychiatric evidence, from Drs Allnutt and Kasinathan, was contrary to the conclusion of Dr Nielssen. 11. Dr Allnutt was of the view that the applicant had some symptoms of depression and anxiety, with some probable symptoms of an obsessive compulsive disorder. There was insufficient basis in Dr Allnutt's opinion to conclude that the applicant was psychotic, or that there was any causal connection between his mental state and the commission of the crime. He speculated as to the explanation for such a frenzied attack, including a loss of temper and control, and frustrated sexual intention, but was ultimately unable to explain it by reference to any psychiatric or other disorder. 12. Dr Kasinathan, who had treated the applicant through Justice Health over an extended period, thought that the applicant's conduct on the day of the murder did not seem normal, but noted that he had not noted any abnormalities in the applicant during the course of consultation and treatment. He agreed with Dr Allnutt that the applicant had an anxiety disorder with depression, but could see no connection between that disorder and the applicant's crime. He noted that, although the applicant had been under close observation in custody since his arrest, no symptoms of psychosis had been noted. He did not think the applicant had schizophrenia, and nor could he offer any psychiatric explanation for the offence. He speculated that the offence may have been committed as an explosive response to some perceived slight. 13. It is notable that the applicant has never been diagnosed with schizophrenia, either before he was sentenced in 2008, or since that time. That, coupled with the evidence from Drs Allnutt and Kasinathan as to the applicant's likely mental state in 2005, leads me to conclude beyond reasonable doubt that he was not psychotic at the time of Tania's murder, contrary to the conclusion of the sentencing judge. 14. The substantial reduction in the assessment of the applicant's moral culpability allowed by the sentencing judge in 2008, thus has no application. This heightens the gravity of the offence as compared to that made of the crime in 2008. 15. It also has an impact upon the conclusions to be drawn as to the applicant's intention at the time of the attack upon Tania. Because of what he concluded to be the applicant's psychotic state, RS Hulme J was not persuaded that the applicant acted with an intention to kill. I am unable to reach the same conclusion. The number and severity of the injuries, together with the areas of the body to which many of the blows were directed, leads to the irresistible conclusion, to the criminal standard, that the applicant acted with an intention to kill. Absent some mental illness affecting the applicant's capacity to perceive his actions and their consequences, no other rational conclusion is open on the evidence. 16. That finding too heightens the gravity of the applicant's crime. 17. In the absence of a mental illness affecting the applicant, I also conclude, to the same standard, that there was some degree of premeditation. 18. In so concluding I have set aside the evidence of Mr McDonald as to the applicant's supposed confession to having lain in wait for Tania as she got off her bus. Mr McDonald's evidence is of a kind likely to be unreliable, and it is safer not to place reliance upon it. I have also set aside the evidence of the applicant truanting that day, since there is evidence that he had failed to attend school on other occasions; and the evidence that he had earlier gotten off the school bus on two occasions at the deceased's stop, since the meaning of such conduct is not clear. What cannot be set aside is that the applicant was armed with a knife. 19. Since there is no evidence that he was carrying a knife that day for some purpose unrelated to the attack on Tania, I have concluded that he armed himself at some point with the purpose of attacking Tania or some person in mind. To that extent, there is premeditation. 20. That conclusion also heightens to some degree the seriousness of the applicant's crime. 21. That his victim was an unarmed child is another feature relevant to a determination of the gravity of the crime. The sentencing judge did not have regard to that feature of the crime in 2008 as, at the time, it was the basis for the application of the standard non-parole period of 25 years. 22. Overall, I regard this as an extremely serious example of murder. 23. The applicant's subjective case must take into account those matters that pertained in 2008 and those which are current. 24. Youth is a significant feature. Although dealt with at law, the applicant is to be sentenced as a child offender. As a consequence s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) applies to him. See generally KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571, at [22] - [25]. 25. Particularly where, as here, the crime is one of great violence, principles of retribution and specific and general deterrence do not cease to have effect, but the emphasis on rehabilitation should be moderated as the offender has conducted himself in the way an adult might. This was by no means a childish or immature crime. 26. Because of his age the applicant was detained as a juvenile between arrest on 19 July 2005 and his transfer to the custody of the Department of Corrective Services on 2 February 2010, just a few months short of his 21st birthday. The early transfer was as a consequence of a criminal charge of intimidation being laid against the applicant, a charge that was later dismissed in the Local Court. 27. There is evidence that the applicant has been treated for depression since his incarceration. After sentence, but before his transfer to the adult correctional system, the applicant was reviewed a number of times by Dr Kasinathan. He presented as depressed, stressed and worried on occasion, symptoms treated with an anti-depressant medication, Fluoxetine. He responded positively to the treatment. 28. Upon reception to the adult corrections system it was noted that the applicant had situational distress and anxiety, that is, as a consequence of his incarceration and the legal issues he faced. He was continued on an anti-depressant, including at some point, Venlafaxine. He was seen from time to time for his depression. In January 2011 the applicant presented to Justice Health with superficial lacerations to his forearms. He said that he had been "going to end it" but had thought of his family. The applicant remains close to his family, and his family provide strong support. 29. The applicant continued to report symptoms of depression in 2011, 2012, 2013, and 2014. In August 2014 the applicant was transferred to a custodial mental health facility pursuant to s 55(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW) as a consequence of an obsessive compulsive condition. It was noted that he was "concrete. Rigid. Unable to be interrupted. Obsessive compulsive at times. No facial expression at all. Blunted affect. Extreme lack of reactivity of affect". His status as a forensic inmate was continued in September 2014, in part because the applicant's refusal to accept his conviction for murder was regarded as delusional. 30. In October 2014 the applicant was again psychiatrically examined, it being concluded that there was no evidence of psychosis, and he did not suffer from a serious mental illness. His thinking was said to be "concrete", not least because of his intense preoccupation with his proposed appeal. 31. In 2016 the applicant continued to report being stressed and anxious, although in March 2016 he was noted to be "mixing, eating, and sleeping okay". Family support remained a very positive feature for him. 32. On occasion, those treating the applicant described him as manipulative, "using the system to get what he wants", and hostile when not allowed to do as he wished. 33. A claim by the applicant that he had been sexually assaulted in custody was determined to be an invention. 34. Overall, whilst the applicant appears to have a depression and anxiety disorder, there is at least some basis to regard it as situational. Whilst he clearly finds custody a difficult and stressful environment, I am not able to conclude that his sufferings are greater than those of other prisoners, or that it is attributable to his illness. Having already concluded that any illness did not have a causal role in the commission of the offence, the relevance of the applicant's mental condition is thus limited. It remains as one of the subjective features to which consideration must be given. See generally Director of Public Prosecutions (Cth) v De la Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1. 35. The applicant has completed years 11 and 12 in custody. Additionally, he has completed Education Planning programs (in February 2015 and February 2016), Visual Arts certificate courses (in April and May 2015), and a computer course in (April 2015). As at July 2014, the applicant had refused to undertake a violent offender program. 36. He has worked in custody with reasonable consistency, generally in textiles, with some periods when he was not employed. 37. The applicant's conduct more generally in custody has been mixed. Although some reports describe him as quiet and polite, he incurred many misconduct reports in juvenile detention and has breached adult correctional rules. In juvenile detention some 79 adverse conduct reports were recorded in the period 8 November 2008 to 24 August 2009 alone. Reports were made for offences from disobeying rules to fighting and harassment. In adult custody, the applicant has incurred infringements for damaging property, fighting, and failing to comply with routine. His most recent breach was from September 2016. 38. It is difficult to make any prediction as to the applicant's prospects of rehabilitation. The applicant is a person of former good character, and he has strong family support. Those are positive features. However, other features of the applicant's case are less favourable. 39. On all of the evidence the applicant continues in his refusal to acknowledge responsibility for Tania's murder. Ordinarily, where there is a denial of crime there cannot be genuine rehabilitation, since without acceptance of wrongdoing, the wrongdoing cannot be addressed. 40. I am unable to reach any conclusion as to his future rehabilitation, even to the extent of finding, as the sentencing judge did in 2008, that he is unlikely to reoffend. 41. Some of the findings at first instance were unduly favourable to the applicant, or not borne out by subsequent events. The finding of special circumstances by the sentencing judge relied upon features already taken into account as ameliorating sentence, and arguably involved double counting in the applicant's favour. If proceeding to re-sentence the applicant, I would not make such a finding. 42. Having considered all of the relevant evidence, and noting the sentencing principles to be applied, it is my view that no lesser sentence is warranted in law: s 6(3) of the Criminal Appeal Act 1912 (NSW). 43. Having reached that conclusion, and noting that "the occasions calling for the Court of Criminal Appeal to grant leave, allow an offender's appeal and substitute a more severe sentence are likely to be rare" (Kentwell at [43]), I would dismiss the appeal. 44. I propose that the orders of the Court are: 1. Extension of time to seek leave to appeal on ground 1 is granted. 2. Leave to appeal on ground 1 granted. 3. Appeal dismissed. ********** Amendments 14 August 2017 - [95] - after "the lesser standard of", "beyond reasonable doubt" replaced with "balance of probabilities" 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: 14 August 2017